Additional Facilities. 33 (a) The Company may notify the Facility Agent by no less than 2 Business Days’ notice that it wishes to establish one or more Additional Facilities by delivery to the Facility Agent of an Additional Facility Accession Agreement duly completed and executed by a Lender (or any person that is not a Lender that proposes to become a Lender under that Additional Facility), the Parent, the Company and, if the Additional Facility is to be granted to an Additional Borrower, the relevant Additional Borrower, provided, in respect of each Additional Facility, that: (i) other than in relation to a Limited Condition Transaction, no Event of Default is continuing or would result from that Additional Facility being established; (ii) the principal amount (in euro, US Dollars or an Additional Currency), interest rate, interest periods, Termination Date, use of proceeds, repayment schedule, availability, fees, incorporation of relevant clauses relating to, or in connection with any Additional Facility and related provisions and the currency (which must be euros, US Dollars or an Additional Currency) of that Additional Facility shall be agreed by the relevant Additional Borrowers and the relevant Initial Additional Facility Lenders (and, in the case of currency and incorporation of the relevant clauses relating to, or in connection with, any Additional Facility which is a revolving facility, the Facility Agent) and set out in the relevant Additional Facility Accession; (iii) the relevant Additional Facility Accession Agreement shall specify whether that Additional Facility is in form of a term or revolving facility; and (iv) subject to paragraph (ii) above, the general terms of that Additional Facility shall be consistent in all material respects with the terms of this Agreement. (b) An increase in the Total Commitments pursuant to an Additional Facility will only be effective on: (i) the execution by the Facility Agent of an Additional Facility Accession Agreement which has been duly executed by each other relevant party thereto; and (ii) in relation to an Initial Additional Facility Lender which is not a Lender immediately prior to the relevant Additional Facility becoming effective: (A) the Initial Additional Facility Lender entering into the documentation required for it to accede to the Intercreditor Agreement; and (B) the performance by the Facility Agent of all necessary “know your client” or other similar checks under all applicable laws and regulations in relation to the Additional Facility Commitments, the completion of which the Facility Agent shall promptly notify 63140965_9 to the Company, the Initial Additional Facility Lender and each L/C Bank. (c) Subject to the conditions in this Clause 2.2 being met, from the relevant Additional Facility Commencement Date for an Additional Facility, the Initial Additional Facility Lenders for that Additional Facility shall make available the Additional Facility in a maximum aggregate amount not exceeding the aggregate Additional Facility Commitments in respect of that Additional Facility as set out in the relevant Additional Facility Accession Agreement subject to the terms of this Agreement. (d) Each Initial Additional Facility Lender shall become a party to this Agreement and be entitled to share in the Transaction Security in accordance with the terms of the Intercreditor Agreement and the Security Documents pari passu with the Lenders under the other Facilities provided that the Company and each Initial Additional Facility Lender in relation to an Additional Facility may agree that an Additional Facility shall be entitled to share in the Transaction Security on a junior basis to the Lenders under the other Facilities or shall not be entitled to share in the Transaction Security either in accordance with the terms of the Intercreditor Agreement or pursuant to ancillary intercreditor arrangements. (e) Each party to this Agreement (other than each proposed Initial Additional Facility Lender, the Parent, the Company and each proposed Additional Borrower) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Additional Facility Accession Agreement which has been duly completed and signed on behalf of each proposed Initial Additional Facility Lender, the Parent, the Company and each proposed Additional Borrower and each Obligor agrees to be bound by such accession. (f) The execution by the Parent, the Company and the relevant Borrower of an Additional Facility Accession Agreement constitutes confirmation by each Guarantor that its obligations under Clause 21 (Guarantee and Indemnity) shall continue unaffected except that those obligations shall extend to the Total Commitments as increased by the addition of the relevant Lender’s Commitment and shall be owed to each Finance Party including the relevant Lender. (g) The Company may pay to any Initial Additional Facility Lender a fee in the amount and at the times agreed between the Company and that Initial Additional Facility Lender. (h) On the Additional Facility Commencement Date: (i) each Initial Additional Facility Lender party to that Additional Facility Accession Agreement, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had each Initial Additional Facility Lender been an Original Lender, with the rights and/or obligations assumed by it as a result of that accession and with the Commitment specified by it as its Additional Facility Commitment; and 63140965_9 (ii) each Initial Additional Facility Lender shall become a party to this Agreement as an “Initial Additional Facility Lender”. (i) With the prior written consent of the Company, the Facility Agent is authorised and instructed to enter into such documentation as is reasonably required to amend this Agreement and any other Finance Document (in accordance with the terms of this Clause 2.2) to reflect the terms of each Additional Facility without the consent of any Lender other than each applicable Initial Additional Facility Lender. (j) Clause 27.4 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this Clause 2.2 in relation to any Initial Additional Facility Lender as if references in that Clause to: (i) a “Transferor” were references to all the Lenders immediately prior to the relevant Additional Facility becoming effective ; (ii) the “New Lender” were references to that “Initial Additional Facility Lender”; and (iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Additional Facilities. 33
(ai) The Company Each Additional Facility (A) shall rank pari passu in right of payment with the Revolving Loans, (B) shall not mature earlier than the last day of the Commitment Period (but may notify have amortization prior to such date), (C) shall be treated substantially the same as (and in any event no more favorably than) the Revolving Loans, and (D) may have mandatory prepayments, which amounts shall be shared pro rata with the Revolving Lenders after the occurrence of an Event of Default, at the discretion of the Revolving Lenders; provided that (1) the terms and conditions applicable to any Additional Facility Agent by no less maturing after the last day of the Commitment Period may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the last day of the Commitment Period, and (2) may be priced differently than 2 Business Days’ notice that it wishes to establish one or more Additional Facilities by delivery to Revolving Loans; provided that, if the Facility Agent of applicable interest rates for an Additional Facility Accession Agreement duly completed and executed by a Lender are greater than fifty (or 50.00) basis points in excess of the interest rates of any person that is not a Lender that proposes to become a Lender under that Additional Facility)existing Loans, the Parent, interest rates with respect to such existing Loans shall be automatically increased by the Company and, if the Additional Facility is to be granted to an Additional Borrower, the relevant Additional Borrower, provided, in respect number of each Additional Facility, that:
(i) other than in relation to a Limited Condition Transaction, no Event basis points of Default is continuing or would result from that Additional Facility being established;such excess.
(ii) An Additional Facility may be added hereunder pursuant to an amendment or restatement (an “Additional Facility Amendment”) of this Agreement and, as appropriate, the principal amount (in euroother Loan Documents, US Dollars or an Additional Currency)executed by Xxxxxxxx, interest rate, interest periods, Termination Date, use of proceeds, repayment schedule, availability, fees, incorporation of relevant clauses relating to, or in connection each Lender providing a commitment with any respect to such Additional Facility and related provisions and the currency (which must be euros, US Dollars or an each Additional Currency) of that Additional Facility shall be agreed by the relevant Additional Borrowers and the relevant Initial Additional Facility Lenders (and, in the case of currency and incorporation of the relevant clauses relating to, or in connection with, any Additional Facility which is Lender providing a revolving facility, the Facility Agent) and set out in the relevant Additional Facility Accession;
(iii) the relevant Additional Facility Accession Agreement shall specify whether that Additional Facility is in form of a term or revolving facility; and
(iv) subject commitment with respect to paragraph (ii) above, the general terms of that Additional Facility shall be consistent in all material respects with the terms of this Agreement.
(b) An increase in the Total Commitments pursuant to an Additional Facility will only be effective on:
(i) the execution by the Facility Agent of an Additional Facility Accession Agreement which has been duly executed by each other relevant party thereto; and
(ii) in relation to an Initial Additional Facility Lender which is not a Lender immediately prior to the relevant Additional Facility becoming effective:
(A) the Initial Additional Facility Lender entering into the documentation required for it to accede to the Intercreditor Agreement; and
(B) the performance by the Facility Agent of all necessary “know your client” or other similar checks under all applicable laws and regulations in relation to the Additional Facility Commitments, the completion of which the Facility Agent shall promptly notify 63140965_9 to the Company, the Initial Additional Facility Lender and each L/C Bank.
(c) Subject to the conditions in this Clause 2.2 being met, from the relevant Additional Facility Commencement Date for an such Additional Facility, the Initial and Agent. An Additional Facility Lenders for that Additional Facility shall make available the Additional Facility in a maximum aggregate amount not exceeding the aggregate Additional Facility Commitments in respect of that Additional Facility as set out in the relevant Additional Facility Accession Agreement subject to the terms of this Agreement.
(d) Each Initial Additional Facility Lender shall become a party to this Agreement and be entitled to share in the Transaction Security in accordance with the terms of the Intercreditor Agreement and the Security Documents pari passu with the Lenders under the other Facilities provided that the Company and each Initial Additional Facility Lender in relation to an Additional Facility may agree that an Additional Facility shall be entitled to share in the Transaction Security on a junior basis to the Lenders under the other Facilities or shall not be entitled to share in the Transaction Security either in accordance with the terms of the Intercreditor Agreement or pursuant to ancillary intercreditor arrangements.
(e) Each party to this Agreement (other than each proposed Initial Additional Facility LenderAmendment may, the Parent, the Company and each proposed Additional Borrower) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Additional Facility Accession Agreement which has been duly completed and signed on behalf of each proposed Initial Additional Facility Lender, the Parent, the Company and each proposed Additional Borrower and each Obligor agrees to be bound by such accession.
(f) The execution by the Parent, the Company and the relevant Borrower of an Additional Facility Accession Agreement constitutes confirmation by each Guarantor that its obligations under Clause 21 (Guarantee and Indemnity) shall continue unaffected except that those obligations shall extend to the Total Commitments as increased by the addition of the relevant Lender’s Commitment and shall be owed to each Finance Party including the relevant Lender.
(g) The Company may pay to any Initial Additional Facility Lender a fee in the amount and at the times agreed between the Company and that Initial Additional Facility Lender.
(h) On the Additional Facility Commencement Date:
(i) each Initial Additional Facility Lender party to that Additional Facility Accession Agreement, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had each Initial Additional Facility Lender been an Original Lender, with the rights and/or obligations assumed by it as a result of that accession and with the Commitment specified by it as its Additional Facility Commitment; and 63140965_9
(ii) each Initial Additional Facility Lender shall become a party to this Agreement as an “Initial Additional Facility Lender”.
(i) With the prior written consent of the Company, the Facility Agent is authorised and instructed to enter into such documentation as is reasonably required to amend this Agreement and any other Finance Document (in accordance with the terms of this Clause 2.2) to reflect the terms of each Additional Facility without the consent of any Lender other than each applicable Initial Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of Agent, to effect the provisions of Section 2.06(b) and (c) hereof (including, without limitation, amendments to the definitions in this Agreement and Section 9.8 hereof for the purpose of treating such Additional Facility Lenderpari passu with Revolving Loans).
(j) Clause 27.4 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this Clause 2.2 in relation to any Initial Additional Facility Lender as if references in that Clause to:
(i) a “Transferor” were references to all the Lenders immediately prior to the relevant Additional Facility becoming effective ;
(ii) the “New Lender” were references to that “Initial Additional Facility Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Additional Facilities. 33
(a) The Company may notify the Facility Agent by no less than 2 By at least two Business Days’ notice to the Administrative Agent (or such shorter period as the Administrative Agent shall agree), and pursuant to the terms and conditions in this Section 2.14 and in the applicable Additional Facility Joinder Agreement or Increase Confirmation, an Additional Facility or an Increase (as defined below) may be provided to any Loan Party in an aggregate principal amount not to exceed the Additional Facility Available Amount (as determined on the date of Incurrence thereof); provided that it wishes (i) on the date of the proposed Additional Facility Loan all representations and warranties to establish one be made in a Request for Credit Extension in accordance with Section 4.03 are true and correct in all material respects (or, with respect to any representation or more warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language, after giving effect to any qualification therein, in all respects) on and as of the date of the proposed Additional Facility Loan with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to any such representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language, after giving effect to any qualification therein, in all respects) as of such earlier date, and (ii) no Event of Default is continuing on such date or would occur after giving effect to the proposed advance; provided, further, that in connection with any Additional Facility the primary purpose of which is to finance a Limited Condition Transaction, the conditions set forth in the Section 2.14(a)(i) and (ii) shall not be required to be satisfied (other than to the extent required by the Additional Facility Lenders party thereto).
(b) Any person may become a Lender under this Agreement by delivering to the Administrative Agent an Additional Facility Joinder Agreement which must be duly executed by that person, the Administrative Agent, the applicable Borrower and the applicable Additional Borrower, if any. That person shall become a Lender on the date specified in the Additional Facility Joinder Agreement. Additional Facilities may be provided by delivery any existing Lender, but no existing Lender will have an obligation to make an Additional Facility Commitment nor will the applicable Borrower have any obligation to approach any existing Lender to provide any Additional Facility Commitment.
(c) Upon the relevant person becoming a Lender, the total of the Commitments under this Agreement shall be increased by the amount set out in the relevant Additional Facility Joinder Agreement as that Lender’s Additional Facility Commitment.
(d) Each Lender under an Additional Facility will grant to the applicable Borrower a term or revolving loan facility in the amount specified in the relevant Additional Facility Agent Joinder Agreement during the Additional Facility Availability Period specified in the Additional Facility Joinder Agreement, subject to the terms of this Agreement.
(e) No Additional Facility shall have the benefit of any guarantee unless the existing Lenders also share in such guarantee. The execution by the applicable Borrower, the Guarantors and the relevant Additional Borrower of the Additional Facility Joinder Agreement shall constitute confirmation by each Guarantor that its obligations under the Guaranty shall extend to the total of the Commitments as increased by the addition of the relevant Lender’s Commitment and shall be owed to each Secured Party including the relevant Lender but otherwise shall continue unaffected.
(f) The aggregate amount of all outstanding Additional Facility Loans under an Additional Facility shall not at any time exceed the relevant Total Additional Facility Commitments for that Additional Facility.
(g) The aggregate amount of the participations of a Lender in Additional Facility Loans under an Additional Facility shall not at any time exceed that Lender’s Additional Facility Commitment for that Additional Facility at that time.
(h) No Additional Facility shall have the benefit of any security unless the existing Lenders also share in such security (except in the case of a security interest in any Escrow Account during the escrow period applicable to such Additional Facility); provided that the Additional Facility Borrowers and the relevant Additional Facility Lender may agree that an Additional Facility shares in the Collateral on a junior basis to the other Facilities. The effectiveness of an Additional Facility Accession Agreement duly completed and executed by a Lender (or shall be subject to customary reaffirmation in respect of any person that is not a Lender that proposes to become a Lender under that Additional Facility), the Parent, the Company Collateral Documents and, if to the Additional Facility is extent reasonably requested by the Administrative Agent, delivery of a written opinion of counsel to be granted the Loan Parties in form and substance reasonably satisfactory to an Additional Borrower, the relevant Additional Borrower, provided, Administrative Agent.
(i) in respect of each Additional Facility, that:
(i) other than in relation to a Limited Condition Transaction, no Event of Default is continuing or would result from each Additional Facility Borrower for that Additional Facility being establishedis a Loan Party;
(ii) the principal amount (in euro, US Dollars or an Additional Currency)amount, interest rate, interest periods, Termination Latest Maturity Date, use of proceeds, repayment schedule, availability, fees, incorporation of relevant clauses relating to, or in connection with with, any Additional Facility and related provisions provisions, and the currency (which must be euros, US Dollars or an Additional Currency) of that Additional Facility shall be agreed by the relevant Additional Facility Borrowers and the relevant Initial Additional Facility Lenders (and, in the case of currency and incorporation of the relevant clauses relating to, or in connection with, any Additional Facility which is a revolving facility, the Facility Administrative Agent) and set out in the relevant Additional Facility AccessionJoinder Agreement;
(iii) the relevant Additional Facility Accession Joinder Agreement shall specify whether that Additional Facility is in form of a term loan or a revolving facilityloan;
(iv) notwithstanding anything to the contrary in this Agreement, (A) any Additional Revolving Facility may provide for the ability on a voluntary basis to permanently repay and terminate or reduce any Revolving Credit Commitments on a pro rata basis, less than or greater than a pro rata basis with other outstanding revolving Facilities hereunder and (B) any Additional Facility Loan in the form of a term loan may participate on a pro rata basis, less than or greater than a pro rata basis in any voluntary prepayments of the Term Loans hereunder under other outstanding Classes of Term Loans, and on a pro rata basis or less than a pro rata basis in any mandatory prepayments of the Term Loans hereunder under other outstanding Classes of Term Loans;
(v) any Additional Facility Commitments may, at the election of the applicable Borrower, be designated as Financial Covenant Commitments;
(vi) each Additional Facility Joinder Agreement may provide for the consent of the Additional Facility Lenders under the applicable Additional Facility (including any Increase in respect thereof) to one or more amendments to this Agreement and the other Loan Documents (in addition to those amendments contemplated by this Section 2.14(vi)), and each party to this Agreement acknowledges and agrees that such consent shall be binding on all Additional Facility Lenders in respect of such Additional Facility and shall be counted for purposes of the definition of determining whether the consent of the Required Lenders, Required Class Lenders, Required Financial Covenant Lenders and affected Lenders has been obtained, and for all other relevant purposes under Section 10.01; and
(ivvii) subject to paragraph sub-clauses (i), (ii), (iv), (v) and (vi) above, the general terms of that Additional Facility shall be consistent in all material respects with the terms of this Agreement.
(bj) An increase in the Total Commitments pursuant The Borrowers may pay to an Additional Facility will only be effective on:
(i) the execution by the Facility Agent of an Additional Facility Accession Agreement which has been duly executed by each other relevant party thereto; and
(ii) in relation to an Initial any Additional Facility Lender which is not a Lender immediately prior to fee in the relevant amount and at the times agreed between the applicable Borrower and that Additional Facility becoming effective:
(A) the Initial Additional Facility Lender entering into the documentation required for it to accede to the Intercreditor Agreement; and
(B) the performance by the Facility Agent of all necessary “know your client” or other similar checks under all applicable laws and regulations in relation to the Additional Facility Commitments, the completion of which the Facility Agent shall promptly notify 63140965_9 to the Company, the Initial Additional Facility Lender and each L/C BankLender.
(c) Subject to the conditions in this Clause 2.2 being met, from the relevant Additional Facility Commencement Date for an Additional Facility, the Initial Additional Facility Lenders for that Additional Facility shall make available the Additional Facility in a maximum aggregate amount not exceeding the aggregate Additional Facility Commitments in respect of that Additional Facility as set out in the relevant Additional Facility Accession Agreement subject to the terms of this Agreement.
(dk) Each Initial Additional Facility Lender shall become a party to this Agreement and be entitled to share in the Transaction Security Collateral in accordance with the terms of the this Agreement, any applicable Intercreditor Agreement and the Security Collateral Documents pari passu with the Lenders under the other Facilities Facilities; provided that the Company Additional Facility Borrowers and each Initial the relevant Additional Facility Lender in relation to an Additional Facility may agree that an Additional Facility shall be entitled to share shares in the Transaction Security Collateral on a junior basis to the Lenders under the other Facilities or which, if so agreed, shall not be entitled to share set out in the Transaction Security either in accordance with the terms of the relevant Additional Facility Joinder Agreement. In addition, each Additional Facility Lender shall be subject to any applicable Intercreditor Agreement or pursuant to ancillary enter into equivalent intercreditor arrangementsarrangements having a similar effect.
(el) Each party to this Agreement (other than each proposed Initial Additional Facility Lender, the Parent, the Company applicable Borrower and each proposed Additional Facility Borrower) irrevocably authorises authorizes and instructs the Facility Administrative Agent to execute on its behalf any Additional Facility Accession Joinder Agreement which has been duly completed and signed on behalf of each proposed Initial Additional Facility Lender, the Parent, the Company applicable Borrower and each proposed Additional Facility Borrower and each Obligor Loan Party agrees to be bound by such accessionjoinder.
(f) The execution by the Parent, the Company and the relevant Borrower of an Additional Facility Accession Agreement constitutes confirmation by each Guarantor that its obligations under Clause 21 (Guarantee and Indemnity) shall continue unaffected except that those obligations shall extend to the Total Commitments as increased by the addition of the relevant Lender’s Commitment and shall be owed to each Finance Party including the relevant Lender.
(g) The Company may pay to any Initial Additional Facility Lender a fee in the amount and at the times agreed between the Company and that Initial Additional Facility Lender.
(hm) On the Additional Facility Commencement Date:
(i) each Initial Additional Facility Lender party to that Additional Facility Accession Joinder Agreement, each other Finance Party and the Obligors Loan Parties shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had each Initial Additional Facility Lender been an Original Lendera Lender on the Effective Date, with the rights and/or obligations assumed by it as a result of that accession and with the Commitment specified by it as its Additional Facility Commitment; and 63140965_9and
(ii) each Initial Additional Facility Lender shall become a party to this Agreement as an “Initial Additional Facility Lender”.
(in) [Reserved.]
(o) With the prior written consent of the CompanyBorrowers, the Facility Administrative Agent is authorised authorized and instructed to enter into such documentation as is reasonably required to amend this Agreement and any other Finance Loan Document (in accordance with the terms of this Clause 2.2Section 2.14) to reflect the terms of each Additional Facility without the consent of any Lender other than each applicable Initial Additional Facility Lender, including amendments as deemed necessary by the Administrative Agent in its reasonable judgment to effect any lien or payment subordination and associated rights of the applicable Lenders to the extent any Additional Facilities are to rank junior in right of security or payment or to address technical issues relating to funding and payments.
(jp) Clause 27.4 This Section 2.14 shall supersede any provisions in Section 2.13 or Section 10.01 to the contrary.
(Limitation of responsibility of Existing Lendersq) The facilities under which any Term Commitments or Revolving Credit Commitments have been made available may be increased by any amount (an “Increase”) which shall apply mutatis mutandis in this Clause 2.2 in relation to not exceed the Additional Facility Available Amount by the execution by any Initial Lender or Additional Facility Lender as if references in that Clause to:
of one or more Additional Facility Joinder Agreements or Increase Confirmations (i) a “Transferor” were references to all under which the Lenders immediately prior Maturity Date, Applicable Rate and any other economic terms applicable to the relevant Additional Facility becoming effective ;
(ii) Commitments are the “New Lender” were same as those applicable to the existing Term Commitments or Revolving Credit Commitments, as applicable). Following any such Increase, references to that “Initial Term Loans and Revolving Credit Loans, as applicable, and the Lenders in respect of the Term Loans and Revolving Credit Loans, as applicable, shall include Lenders and Loans made under any such Additional Facility LenderJoinder Agreements or Increase Confirmations. In respect of any such Increase: (i) (A) on the date of the proposed Increase, all representations and warranties to be made in a Request for Credit Extension in accordance with Section 4.03 shall be true and correct in all material respects (or, with respect to any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language, after giving effect to any qualification therein, in all respects) on and as of the date of the proposed Increase with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to any such representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language, after giving effect to any qualification therein, in all respects) as of such earlier date, and (B) no Event of Default is continuing on such date or would occur after giving effect to the proposed advance; and
provided that, in connection with any such Increase the primary purpose of which is to finance a Limited Condition Transaction, the conditions set forth in Section 2.14(q)(i)(A) and (iiiB) a “re-transfer” and “re-assignment” were references shall not be required to respectively a “transfer” and “assignment”.be satisfied (other than to the extent required by any Lender or Additional Facility Lender in respect of such Increase);
Appears in 1 contract
Additional Facilities. 33
(a) The Company may notify the Facility Agent by no less than 2 By at least two Business Days’ notice to the Administrative Agent (or such shorter period as the Administrative Agent shall agree), and pursuant to the terms and conditions in this Section 2.14 and in the applicable Additional Facility Joinder Agreement or Increase Confirmation, an Additional Facility or an Increase (as defined below) may be provided to any Loan Party in an aggregate principal amount not to exceed the Additional Facility Available Amount (as determined on the date of Incurrence thereof); provided that it wishes (i) on the date of the proposed Additional Facility Loan all representations and warranties to establish one be made in a Request for Credit Extension in accordance with Section 4.03 are true and correct in all material respects (or, with respect to 71 any representation or more warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language, after giving effect to any qualification therein, in all respects) on and as of the date of the proposed Additional Facility Loan with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to any such representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language, after giving effect to any qualification therein, in all respects) as of such earlier date, and (ii) no Event of Default is continuing on such date or would occur after giving effect to the proposed advance; provided, further, that in connection with any Additional Facility the primary purpose of which is to finance a Limited Condition Transaction, the conditions set forth in Section 2.14(a)(i) and (ii) shall not be required to be satisfied (other than to the extent required by the Additional Facility Lenders party thereto).
(b) Any person may become a Lender under this Agreement by delivering to the Administrative Agent an Additional Facility Joinder Agreement which must be duly executed by that person, the Administrative Agent, the applicable Borrower and the applicable Additional Borrower, if any. That person shall become a Lender on the date specified in the Additional Facility Joinder Agreement. Additional Facilities may be provided by delivery any existing Lender, but no existing Lender will have an obligation to make an Additional Facility Commitment nor will the applicable Borrower have any obligation to approach any existing Lender to provide any Additional Facility Commitment.
(c) Upon the relevant person becoming a Lender, the total of the Commitments under this Agreement shall be increased by the amount set out in the relevant Additional Facility Joinder Agreement as that Lender’s Additional Facility Commitment.
(d) Each Lender under an Additional Facility will grant to the applicable Borrower a term or revolving loan facility in the amount specified in the relevant Additional Facility Agent Joinder Agreement during the Additional Facility Availability Period specified in the Additional Facility Joinder Agreement, subject to the terms of this Agreement.
(e) No Additional Facility shall have the benefit of any guarantee unless the existing Lenders also share in such guarantee. The execution by the applicable Borrower, the Guarantors and the relevant Additional Borrower of the Additional Facility Joinder Agreement shall constitute confirmation by each Guarantor that its obligations under the Guaranty shall extend to the total of the Commitments as increased by the addition of the relevant Lender’s Commitment and shall be owed to each Secured Party including the relevant Lender but otherwise shall continue unaffected.
(f) The aggregate amount of all outstanding Additional Facility Loans under an Additional Facility shall not at any time exceed the relevant Total Additional Facility Commitments for that Additional Facility.
(g) The aggregate amount of the participations of a Lender in Additional Facility Loans under an Additional Facility shall not at any time exceed that Lendxx’x Xdditional Facility Commitment for that Additional Facility at that time.
(h) No Additional Facility shall have the benefit of any security unless the existing Lenders also share in such security (except in the case of a security interest in any Escrow Account during the escrow period applicable to such Additional Facility); provided that the Additional Facility Borrowers and the relevant Additional Facility Lender may agree that an Additional Facility shares in the Collateral on a junior basis to the other Facilities. The effectiveness of an Additional Facility Accession Agreement duly completed and executed by a Lender (or shall be subject to customary reaffirmation in respect of any person that is not a Lender that proposes to become a Lender under that Additional Facility), the Parent, the Company Collateral Documents and, if to the Additional Facility is extent reasonably requested by the Administrative Agent, delivery of a written opinion of counsel to be granted the Loan Parties in form and substance reasonably satisfactory to an Additional Borrower, the relevant Additional Borrower, provided, Administrative Agent.
(i) in respect of each Additional Facility, that:
(i) other than in relation to a Limited Condition Transaction, no Event of Default is continuing or would result from each Additional Facility Borrower for that Additional Facility being establishedis a Loan Party;
(ii) the principal amount (in euro, US Dollars or an Additional Currency)amount, interest rate, interest periods, Termination Latest Maturity Date, use of proceeds, repayment schedule, availability, fees, incorporation of relevant clauses relating to, or in connection with with, any Additional Facility and related provisions provisions, and the currency (which must be euros, US Dollars or an Additional Currency) of that Additional Facility shall be agreed by the relevant Additional Facility Borrowers and the relevant Initial Additional Facility Lenders (and, in the case of currency and incorporation of the relevant clauses relating to, or in connection with, any Additional Facility which is a revolving facility, the Facility Administrative Agent) and set out in the relevant Additional Facility AccessionJoinder Agreement;
(iii) the relevant Additional Facility Accession Joinder Agreement shall specify whether that Additional Facility is in form of a term loan or a revolving facilityloan; 72
(iv) notwithstanding anything to the contrary in this Agreement, (A) any Additional Revolving Facility may provide for the ability on a voluntary basis to permanently repay and terminate or reduce any Revolving Credit Commitments on a pro rata basis, less than or greater than a pro rata basis with other outstanding revolving Facilities hereunder and (B) any Additional Facility Loan in the form of a term loan may participate on a pro rata basis, less than or greater than a pro rata basis in any voluntary or mandatory prepayments of the Term Loans;
(v) any Additional Facility Commitments may, at the election of the applicable Borrower, be designated as Financial Covenant Commitments;
(vi) each Additional Facility Joinder Agreement may provide for the consent of the Additional Facility Lenders under the applicable Additional Facility (including any Increase in respect thereof) to one or more amendments to this Agreement and the other Loan Documents (in addition to those amendments contemplated by this Section 2.14(vi)), and each party to this Agreement acknowledges and agrees that such consent shall be binding on all Additional Facility Lenders in respect of such Additional Facility and shall be counted for purposes of the definition of determining whether the consent of the Required Lenders, Required Class Lenders, Required Financial Covenant Lenders and affected Lenders has been obtained, and for all other relevant purposes under Section 10.01; and
(ivvii) subject to paragraph sub-clauses (i), (ii), (iv), (v) and (vi) above, the general terms of that Additional Facility shall be consistent in all material respects with the terms of this Agreement.
(bj) An increase in the Total Commitments pursuant The Borrowers may pay to an Additional Facility will only be effective on:
(i) the execution by the Facility Agent of an Additional Facility Accession Agreement which has been duly executed by each other relevant party thereto; and
(ii) in relation to an Initial any Additional Facility Lender which is not a Lender immediately prior to fee in the relevant amount and at the times agreed between the applicable Borrower and that Additional Facility becoming effective:
(A) the Initial Additional Facility Lender entering into the documentation required for it to accede to the Intercreditor Agreement; and
(B) the performance by the Facility Agent of all necessary “know your client” or other similar checks under all applicable laws and regulations in relation to the Additional Facility Commitments, the completion of which the Facility Agent shall promptly notify 63140965_9 to the Company, the Initial Additional Facility Lender and each L/C BankLender.
(c) Subject to the conditions in this Clause 2.2 being met, from the relevant Additional Facility Commencement Date for an Additional Facility, the Initial Additional Facility Lenders for that Additional Facility shall make available the Additional Facility in a maximum aggregate amount not exceeding the aggregate Additional Facility Commitments in respect of that Additional Facility as set out in the relevant Additional Facility Accession Agreement subject to the terms of this Agreement.
(dk) Each Initial Additional Facility Lender shall become a party to this Agreement and be entitled to share in the Transaction Security Collateral in accordance with the terms of the this Agreement, any applicable Intercreditor Agreement and the Security Collateral Documents pari passu with the Lenders under the other Facilities Facilities; provided that the Company Additional Facility Borrowers and each Initial the relevant Additional Facility Lender in relation to an Additional Facility may agree that an Additional Facility shall be entitled to share shares in the Transaction Security Collateral on a junior basis to the Lenders under the other Facilities or which, if so agreed, shall not be entitled to share set out in the Transaction Security either in accordance with the terms of the relevant Additional Facility Joinder Agreement. In addition, each Additional Facility Lender shall be subject to any applicable Intercreditor Agreement or pursuant to ancillary enter into equivalent intercreditor arrangementsarrangements having a similar effect.
(el) Each party to this Agreement (other than each proposed Initial Additional Facility Lender, the Parent, the Company applicable Borrower and each proposed Additional Facility Borrower) irrevocably authorises authorizes and instructs the Facility Administrative Agent to execute on its behalf any Additional Facility Accession Joinder Agreement which has been duly completed and signed on behalf of each proposed Initial Additional Facility Lender, the Parent, the Company applicable Borrower and each proposed Additional Facility Borrower and each Obligor Loan Party agrees to be bound by such accessionjoinder.
(f) The execution by the Parent, the Company and the relevant Borrower of an Additional Facility Accession Agreement constitutes confirmation by each Guarantor that its obligations under Clause 21 (Guarantee and Indemnity) shall continue unaffected except that those obligations shall extend to the Total Commitments as increased by the addition of the relevant Lender’s Commitment and shall be owed to each Finance Party including the relevant Lender.
(g) The Company may pay to any Initial Additional Facility Lender a fee in the amount and at the times agreed between the Company and that Initial Additional Facility Lender.
(hm) On the Additional Facility Commencement Date:
(i) each Initial Additional Facility Lender party to that Additional Facility Accession Joinder Agreement, each other Finance Party and the Obligors Loan Parties shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had each Initial Additional Facility Lender been an Original Lendera Lender on the 2021 Amendment Effective Date or Effective Date, as applicable, with the rights and/or obligations assumed by it as a result of that accession and with the Commitment specified by it as its Additional Facility Commitment; and 63140965_9and
(ii) each Initial Additional Facility Lender shall become a party to this Agreement as an “Initial Additional Facility Lender”.
(in) [Reserved.]
(o) With the prior written consent of the CompanyBorrowers, the Facility Administrative Agent is authorised authorized and instructed to enter into such documentation as is reasonably required to amend this Agreement and any other Finance Loan Document (in accordance with the terms of this Clause 2.2Section 2.14) to reflect the terms of each Additional Facility without the consent of any Lender other than each applicable Initial Additional Facility Lender, including amendments as deemed necessary by the Administrative Agent in its reasonable judgment to effect any lien or payment subordination and associated rights of the applicable Lenders to the extent any Additional Facilities are to rank junior in right of security or payment or to address technical issues relating to funding and payments.
(p) This Section 2.14 shall supersede any provisions in Section 2.13 or Section 10.01 to the contrary.
(q) The facilities under which any Term Commitments or Revolving Credit Commitments have been made available may be increased by any amount (an “Increase”) which shall not exceed the Additional Facility Available Amount by the execution by any Lender or Additional Facility Lender of one or more Additional Facility Joinder Agreements or Increase Confirmations (under which the Maturity Date, Applicable Rate and any other economic terms applicable to the relevant Additional Facility Commitments are the same as those applicable to the existing Term Commitments or Revolving Credit Commitments, as applicable). Following any such Increase, references to Term Loans and Revolving Credit Loans, as applicable, and the Lenders in respect of the Term Loans and Revolving Credit Loans, as applicable, shall include Lenders and Loans made under any such Additional Facility Joinder Agreements or Increase Confirmations. In respect of any such Increase:
(i) (A) on the date of the proposed Increase, all representations and warranties to be made in a Request for Credit Extension in accordance with Section 4.03 shall be true and correct in all material respects (or, with respect to any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language, after giving effect to any qualification therein, in all respects) on and as of the date of the proposed Increase with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to any such representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language, after giving effect to any qualification therein, in all respects) as of such earlier date, and (B) no Event of Default is continuing on such date or would occur after giving effect to the proposed advance; provided that, in connection with any such Increase the primary purpose of which is to finance a Limited Condition Transaction, the conditions set forth in Section 2.14(q)(i)(A) and (B) shall not be required to be satisfied (other than to the extent required by any Lender or Additional Facility Lender in respect of such Increase);
(ii) each party to this Agreement (other than the relevant Lender or Additional Facility Lender and the applicable Borrower) irrevocably authorizes and instructs the Administrative Agent to execute on its behalf any Additional Facility Joinder Agreement or Increase Confirmation which has been duly completed and signed on behalf of each Lender or proposed Additional Facility Lender, the applicable Borrower and each Loan Party agrees to be bound by such joinder; and
(iii) with the prior written consent of the Borrowers, the Administrative Agent is authorized and instructed to enter into such documentation as is reasonably required to amend this Agreement and any other Loan Document (in accordance with the terms of this Section 2.14) to reflect the terms of each Increase without the consent of any Lender other than each applicable Additional Facility Lender.
(jr) Clause 27.4 Upon any Additional Facility Commencement Date on which Revolving Credit Commitments in respect of an Additional Revolving Facility (Limitation the “Additional Revolving Credit Commitments”) are effected through an increase in the Revolving Credit Commitments with respect to any existing Facility (the “Original Revolving Credit Facility”) pursuant to this Section 2.14, (a) each of responsibility the Revolving Credit Lenders under such Facility shall assign to each of Existing the Additional Lenders under such Additional Revolving Facility (the “Additional Revolving Credit Lenders) ”), and each of the Additional Revolving Credit Lenders shall apply mutatis mutandis purchase from each of the Revolving Credit Lenders, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Additional Facility Commencement Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Credit Loans will be held by existing Revolving Credit Lenders and Additional Revolving Credit Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such Additional Revolving Credit Commitments to the Revolving Credit Commitments; provided that the Administrative Agent and the Company may agree to give effect to the foregoing provisions on or after the next Interest Payment Date with respect to any Revolving Credit Loans outstanding under the Original Revolving Credit Facility on the Additional Facility Commencement Date. The Administrative Agent and the Lenders hereby agree that the minimum borrowing and prepayment requirements in this Clause 2.2 in relation to any Initial Additional Facility Lender as if references in that Clause to:
(i) a “Transferor” were references to all the Lenders immediately prior Agreement shall not apply to the relevant Additional Facility becoming effective ;
(ii) transactions effected pursuant to the “New Lender” were references to that “Initial Additional Facility Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”immediately preceding sentence.
Appears in 1 contract
Additional Facilities. 33
(a) The Company may notify Borrowers shall have the Facility Agent by right at any time so long as no less than 2 Business Days’ notice that it wishes to establish one or more Additional Facilities by delivery to the Facility Agent of an Additional Facility Accession Agreement duly completed and executed by a Lender (or any person that is not a Lender that proposes to become a Lender under that Additional Facility), the Parent, the Company and, if the Additional Facility is to be granted to an Additional Borrower, the relevant Additional Borrower, provided, in respect of each Additional Facility, that:
(i) other than in relation to a Limited Condition Transaction, no Unmatured Event of Default is continuing or would result from that Additional Facility being established;
Event of Default then exists (ii) the principal amount (in euro, US Dollars or an Additional Currency), interest rate, interest periods, Termination Date, use of proceeds, repayment schedule, availability, fees, incorporation of relevant clauses relating to, or in connection with any Additional Facility and related provisions and the currency (which must be euros, US Dollars or an Additional Currency) of that Additional Facility shall be agreed by the relevant Additional Borrowers and the relevant Initial Additional Facility Lenders (andexcept, in the case of currency Additional Facilities incurred to finance a Limited Condition Acquisition, in which case such requirement shall be limited to customary “Funds Certain Provisions” or “SunGard” provisions, if otherwise agreed to by the Lenders providing such Additional Facilities) and incorporation from time to time after the ClosingSecond Amendment Effective Date, to obtain and incur from one or more existing Lenders and/or other Persons that are Eligible Assignees and which, in each case, agree to provide commitments or to make loans to the applicable Borrower in an aggregate principal amount not to exceed the Dollar Equivalent of the relevant clauses relating Additional Facility Limit, which loans may be incurred as (i) one or more tranches of additional term loans available to one or more Borrowers (the “Additional Term Loans”) as allocated by Company and the Lenders providing such Additional Term Loans under a facility that would provide that the Additional Term Loans would have a Weighted Average Life to Maturity of not less than the existing Term Loans with the then longest Weighted Average Life to Maturity (except to the extent that any such Additional Term Loans replace, renew, refinance, extend, defease, or restructure the Dollar Senior Notes (2020) or the Euro Senior Notes (2020)), and a final maturity no earlier than the latest existing Term Maturity Date (except to the extent that any such Additional Term Loans replace, renew, refinance, extend, defease, or restructure the Dollar Senior Notes (2020) or the Euro Senior Notes (2020)); provided that the terms and conditions of any Additional Term Loans, taken as a whole, shall be substantially similar to, or less favorable to the Lenders or New Lenders providing such Additional Term Loans, than those applicable to the existing Term Facilities taken as a whole (other than as to term, pricing, fees and other economic terms), except for covenants and other provisions applicable only to periods after the earlier to occur of the date that all other Term Loans are paid in connection with, any Additional Facility which is a revolving facility, the Facility Agentfull (other than contingent indemnification obligations not then due) and set out the latest Term Maturity Date at the time such Additional Term Loans are incurred (without regard to the maturity date for such Additional Term Loans); provided, however, that (X) to the extent the terms and conditions of such Additional Term Loans are not consistent with one or more of the existing Term Facilities (except to the extent permitted pursuant to the immediately preceding proviso or clause (Y) below), such terms and conditions may differ if reasonably satisfactory to Company and the Administrative Agent, or (Y) in the relevant event such terms are more favorable (taken as a whole) to the Lenders or New Lenders providing such Additional Facility Accession;
Term Loans, (A) the applicable Borrowers shall have the right to unilaterally provide the existing Term Lenders with additional rights and benefits and the “substantially similar to” or not “less favorable” requirement of the preceding proviso and compliance therewith shall be determined after giving effect to such additional rights and benefits and (B) to the extent that an additional financial maintenance covenant is added for the benefit of the Lenders under such Additional Term Loans, then such financial maintenance covenant shall be added to the Term Facilities that remain outstanding after the issuance or incurrence of such Additional Term Loans (to the extent not already benefitting from any similar financial maintenance covenant and to the extent that such financial maintenance covenant would be effective prior to the latest Term Maturity Date for such Term Facilities) for the benefit of the Term Lenders thereunder (it being understood and agreed that Company may, at its option, deliver a certificate to the Administrative Agent certifying that the requirements of the provisos to this clause (i) have been satisfied at least 5 Business Days prior to the incurrence of such Indebtedness, and such certification shall be conclusive evidence that such requirements have been satisfied unless the Administrative Agent provides notice to Company of its objection during such 5 Business Day period (including a reasonable description of the basis upon which it objects)), (ii) increases to one or more existing Term Facilities, (iii) increases to the relevant Multicurrencyone or more Revolving Facility or to any Additional Facility Accession Agreement shall specify whether that Additional Facility is in form of a term Revolving FacilityFacilities, or revolving facility; and
(iv) subject one or more additional tranches of revolving commitments (theeach, an “Additional Revolving Facility”) as allocated by Company and the Lenders providing commitments in respect of such Additional Revolving Facility under a facility that would provide that thesuch Additional Revolving Facility would have a final maturity no earlier than the latest existing Revolver Termination Date (except to paragraph the extent that any such Additional Revolving Facilities replace, renew, refinance, extend, defease, or restructure the Dollar Senior Notes (ii2020) aboveor the Euro Senior Notes (2020)); provided that the terms and conditions of any Additional Revolving Facility, taken as a whole, shall be substantially similar to, or less favorable to the general Lenders or New Lenders providing such Additional Revolving Facility, than those applicable to the Multicurrencyexisting Revolving FacilityFacilities taken as a whole (other than as to term, pricing, fees and other economic terms) except for covenants and other provisions applicable only to periods after the latest Revolver Termination Date at the time such Additional Revolving Facility is obtained (without regard to the maturity date for such Additional Revolving Facility); provided, however, that (X) to the extent the terms and conditions of such Additional Revolving Facility are not consistent with one or more of the existing Multicurrency Revolving Facility or any existing Additional Revolving Facilities (except to the extent permitted pursuant to the immediately preceding proviso or clause (Y) below), such terms and conditions may differ if reasonably satisfactory to Company and the Administrative Agent, or (Y) in the event such terms are more favorable (taken as a whole) to the Lenders or New Lenders providing such Additional Revolving Facility, (A) the applicable Borrowers shall have the right to unilaterally provide the Lenders under the existing Multicurrency Revolving Lenders or existing Lender under an existing Additional Revolving FacilityFacilities with additional rights and benefits and the “substantially similar to” or not “less favorable” requirement of the preceding proviso and compliance therewith shall be determined after giving effect to such additional rights and benefits and (B) to the extent that an additional financial maintenance covenant is added for the benefit of the Lenders under such Additional Revolving Facility, then such financial maintenance covenant shall be added to the existing Multicurrency Revolving Facility and any existing Additional Revolving Facilities that remain outstanding after the commitments under such Additional Revolving Facility become effective (to the extent not already benefitting from any similar financial maintenance covenant and to the extent that such financial maintenance covenant would be effective prior to the latest Revolver Termination Date for such Revolving Facilities) for the benefit of the existing Multicurrency Revolving Lenders thereunder or existing Lenders under suchthe existing Additional Revolving Facilities (it being understood and agreed that Company may, at its option, deliver a certificate to the Administrative Agent certifying that the requirements of the provisos to this clause (iv) have been satisfied at least 5 Business Days prior to the incurrence of such Indebtedness, and such certification shall be conclusive evidence that such requirements have been satisfied unless the Administrative Agent provides notice to Company of its objection during such 5 Business Day period (including a reasonable description of the basis upon which it objects)) (clauses (i) through (iv) collectively, “Additional Facilities”). Any Additional Facility shall rank pari passu with any then-existing tranche of Loans and/or Multicurrency Revolving Commitments and/or Additional Facility Commitments in right of payment and shall (x) rank pari passu with any then-existing tranche of Loans incurred by and/or Multicurrency Revolving Commitments and/or Additional Facility Commitments made available to the same Borrower in right of guarantees and security and (y) be consistent subject to the CAM Exchange (and the holders of any Indebtedness or commitments in all material respects with respect of such Additional Facility shall have become a party to the terms Re-Allocation Agreement, by execution and delivery of a joinder thereto or other arrangement reasonably acceptable to the Administrative Agent). No Additional Facility may be (x) guaranteed by any Person which is not a Credit Party or (y) secured by any assets other than the Collateral (other than any Additional Revolving Facility incurred by an Othera Subsidiary Borrower that is not a U.S. Credit Party which becomes a Borrower after the date of this Agreement.
(b) An increase , which may be guaranteed by Persons that are not Credit Parties on the date when such Additional Revolving Facility in favor of such Other Subsidiary Borrower is established and secured by collateral belonging to such Credit Parties so long as the Total Commitments Lenders that agree to provide such Additional Revolving Facility enter into the CAM Exchange). Each New Lender that becomes a Lender with respect to a tranche of Additional Facilities pursuant to an this Section 2.9 hereby acknowledges and agrees that the term of each Term Facility, the Multicurrencyeach Revolving Facility and each sub-facility thereof may be extended or replaced and that each New Lender, solely with respect to the Additional Facility will only Facilities held by such New Lender, agrees in advance to any changes made to this Agreement and the other Loan Documents in order to implement such extension or replacement (including changes with respect to pricing, fees and other economic terms relating solely to such extended or replaced facility or facilities) as may be effective on:
reasonably proposed to be made by Company (i) the execution by the Facility Agent Company’s signature to be conclusive evidence of such reasonability); provided that no such extension of an Additional Facility Accession Agreement to which has been duly executed by each other relevant a New Lender is a party thereto; and
(ii) in relation shall apply to an Initial Additional Facility such New Lender which is not a without its consent. Each New Lender immediately prior hereby agrees to take such actions and execute and deliver such amendments, agreements, instruments or documents as the Administrative Agent may reasonably request to give effect to the relevant Additional Facility becoming effective:
(A) the Initial Additional Facility Lender entering into the documentation required for it to accede to the Intercreditor Agreementpreceding sentence; and
(B) the performance by the Facility Agent of all necessary “know your client” or other similar checks under all applicable laws and regulations in relation to the Additional Facility Commitments, the completion of which the Facility Agent shall promptly notify 63140965_9 to the Company, the Initial Additional Facility Lender and each L/C Bank.
(c) Subject to the conditions in this Clause 2.2 being met, from the relevant Additional Facility Commencement Date for an Additional Facility, the Initial Additional Facility Lenders for that Additional Facility shall make available the Additional Facility in a maximum aggregate amount not exceeding the aggregate Additional Facility Commitments in respect of that Additional Facility as set out in the relevant Additional Facility Accession Agreement subject to the terms of this Agreement.
(d) Each Initial Additional Facility Lender shall become a party to this Agreement and be entitled to share in the Transaction Security in accordance with the terms of the Intercreditor Agreement and the Security Documents pari passu with the Lenders under the other Facilities provided that the Company and each Initial Additional Facility Lender in relation to an Additional Facility may agree that an Additional Facility shall be entitled to share in the Transaction Security on a junior basis to the Lenders under the other Facilities or foregoing provision shall not be entitled construed to share in the Transaction Security either in accordance with the terms of the Intercreditor Agreement require a New Lender to execute any amendment, agreement, instrument or pursuant to ancillary intercreditor arrangements.
(e) Each party to this Agreement (document which contains changes other than each proposed Initial Additional Facility Lender, the Parent, the Company and each proposed Additional Borrower) irrevocably authorises and instructs the Facility Agent those relating solely to execute on its behalf any Additional Facility Accession Agreement which has been duly completed and signed on behalf of each proposed Initial Additional Facility Lender, the Parent, the Company and each proposed Additional Borrower and each Obligor agrees to be bound by such accessionextended or replaced facility or facilities.
(f) The execution by the Parent, the Company and the relevant Borrower of an Additional Facility Accession Agreement constitutes confirmation by each Guarantor that its obligations under Clause 21 (Guarantee and Indemnity) shall continue unaffected except that those obligations shall extend to the Total Commitments as increased by the addition of the relevant Lender’s Commitment and shall be owed to each Finance Party including the relevant Lender.
(g) The Company may pay to any Initial Additional Facility Lender a fee in the amount and at the times agreed between the Company and that Initial Additional Facility Lender.
(h) On the Additional Facility Commencement Date:
(i) each Initial Additional Facility Lender party to that Additional Facility Accession Agreement, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had each Initial Additional Facility Lender been an Original Lender, with the rights and/or obligations assumed by it as a result of that accession and with the Commitment specified by it as its Additional Facility Commitment; and 63140965_9
(ii) each Initial Additional Facility Lender shall become a party to this Agreement as an “Initial Additional Facility Lender”.
(i) With the prior written consent of the Company, the Facility Agent is authorised and instructed to enter into such documentation as is reasonably required to amend this Agreement and any other Finance Document (in accordance with the terms of this Clause 2.2) to reflect the terms of each Additional Facility without the consent of any Lender other than each applicable Initial Additional Facility Lender.
(j) Clause 27.4 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this Clause 2.2 in relation to any Initial Additional Facility Lender as if references in that Clause to:
(i) a “Transferor” were references to all the Lenders immediately prior to the relevant Additional Facility becoming effective ;
(ii) the “New Lender” were references to that “Initial Additional Facility Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Samples: Credit Agreement (BALL Corp)
Additional Facilities. 33
(a) The Company may notify the Facility Agent by no less than 2 By at least two Business Days’ notice to the Administrative Agent (or such shorter period as the Administrative Agent shall agree), and pursuant to the terms and conditions in this Section 2.14 and in the applicable Additional Facility Joinder Agreement or Increase Confirmation, an Additional Facility or an Increase (as defined below) may be provided to any Loan Party in an aggregate principal amount not to exceed the Additional Facility Available Amount (as determined on the date of Incurrence thereof); provided that it wishes (i) on the date of the proposed Additional Facility Loan all representations and warranties to establish one be made in a Request for Credit Extension in accordance with Section 4.03 are true and correct in all material respects (or, with respect to any representation or more warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language, after giving effect to any qualification therein, in all respects) on and as of the date of the proposed Additional Facility Loan with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to any such representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language, after giving effect to any qualification therein, in all respects) as of such earlier date, and (ii) no Event of Default is continuing on such date or would occur after giving effect to the proposed advance; provided, further, that in connection with any Additional Facility the primary purpose of which is to finance a Limited Condition Transaction, the conditions set forth in the Section 2.14(a)(i) and (ii) shall not be required to be satisfied (other than to the extent required by the Additional Facility Lenders party thereto).
(b) Any person may become a Lender under this Agreement by delivering to the Administrative Agent an Additional Facility Joinder Agreement which must be duly executed by that person, the Administrative Agent, the applicable Borrower and the applicable Additional Borrower, if any. That person shall become a Lender on the date specified in the Additional Facility Joinder Agreement. Additional Facilities may be provided by delivery any existing Lender, but no existing Lender will have an obligation to make an Additional Facility Commitment nor will the applicable Borrower have any obligation to approach any existing Lender to provide any Additional Facility Commitment.
(c) Upon the relevant person becoming a Lender, the total of the Commitments under this Agreement shall be increased by the amount set out in the relevant Additional Facility Joinder Agreement as that Lender’s Additional Facility Commitment.
(d) Each Lender under an Additional Facility will grant to the applicable Borrower a term or revolving loan facility in the amount specified in the relevant Additional Facility Agent Joinder Agreement during the Additional Facility Availability Period specified in the Additional Facility Joinder Agreement, subject to the terms of this Agreement.
(e) No Additional Facility shall have the benefit of any guarantee unless the existing Lenders also share in such guarantee. The execution by the applicable Borrower, the Guarantors and the relevant Additional Borrower of the Additional Facility Joinder Agreement shall constitute confirmation by each Guarantor that its obligations under the Guaranty shall extend to the total of the Commitments as increased by the addition of the relevant Lender’s Commitment and shall be owed to each Secured Party including the relevant Lender but otherwise shall continue unaffected.
(f) The aggregate amount of all outstanding Additional Facility Loans under an Additional Facility shall not at any time exceed the relevant Total Additional Facility Commitments for that Additional Facility.
(g) The aggregate amount of the participations of a Lender in Additional Facility Loans under an Additional Facility shall not at any time exceed that Xxxxxx’s Additional Facility Commitment for that Additional Facility at that time.
(h) No Additional Facility shall have the benefit of any security unless the existing Lenders also share in such security (except in the case of a security interest in any Escrow Account during the escrow period applicable to such Additional Facility); provided that the Additional Facility Borrowers and the relevant Additional Facility Lender may agree that an Additional Facility shares in the Collateral on a junior basis to the other Facilities. The effectiveness of an Additional Facility Accession Agreement duly completed and executed by a Lender (or shall be subject to customary reaffirmation in respect of any person that is not a Lender that proposes to become a Lender under that Additional Facility), the Parent, the Company Collateral Documents and, if to the Additional Facility is extent reasonably requested by the Administrative Agent, delivery of a written opinion of counsel to be granted the Loan Parties in form and substance reasonably satisfactory to an Additional Borrower, the relevant Additional Borrower, provided, Administrative Agent.
(i) in respect of each Additional Facility, that:
(i) other than in relation to a Limited Condition Transaction, no Event of Default is continuing or would result from each Additional Facility Borrower for that Additional Facility being establishedis a Loan Party;
(ii) the principal amount (in euro, US Dollars or an Additional Currency)amount, interest rate, interest periods, Termination Latest Maturity Date, use of proceeds, repayment schedule, availability, fees, incorporation of relevant clauses relating to, or in connection with with, any Additional Facility and related provisions provisions, and the currency (which must be euros, US Dollars or an Additional Currency) of that Additional Facility shall be agreed by the relevant Additional Facility Borrowers and the relevant Initial Additional Facility Lenders (and, in the case of currency and incorporation of the relevant clauses relating to, or in connection with, any Additional Facility which is a revolving facility, the Facility Administrative Agent) and set out in the relevant Additional Facility AccessionJoinder Agreement;
(iii) the relevant Additional Facility Accession Joinder Agreement shall specify whether that Additional Facility is in form of a term loan or a revolving facilityloan;
(iv) notwithstanding anything to the contrary in this Agreement, (A) any Additional Revolving Facility may provide for the ability on a voluntary basis to permanently repay and terminate or reduce any Revolving Credit Commitments on a pro rata basis, less than or greater than a pro rata basis with other outstanding revolving Facilities hereunder and (B) any Additional Facility Loan in the form of a term loan may participate on a pro rata basis, less than or greater than a pro rata basis in any voluntary or mandatory prepayments of the Term Loans;
(v) [Reserved];
(vi) each Additional Facility Joinder Agreement may provide for the consent of the Additional Facility Lenders under the applicable Additional Facility (including any Increase in respect thereof) to one or more amendments to this Agreement, the other Loan Documents and the Proceeds Loan Finance Documents (in addition to those amendments contemplated by this Section 2.14(i)(vi)), and each party to this Agreement acknowledges and agrees that such consent shall be binding on all Additional Facility Lenders in respect of such Additional Facility and shall be counted for purposes of the definition of determining whether the consent of the Required Lenders, Required Class Lenders and affected Lenders has been obtained, and for all other relevant purposes under Section 10.01; and
(ivvii) subject to paragraph sub-clauses (i), (ii), (iv) and (vi) above, the general terms of that Additional Facility shall be consistent in all material respects with the terms of this Agreement.
(bj) An increase in the Total Commitments pursuant The Borrowers may pay to an Additional Facility will only be effective on:
(i) the execution by the Facility Agent of an Additional Facility Accession Agreement which has been duly executed by each other relevant party thereto; and
(ii) in relation to an Initial any Additional Facility Lender which is not a Lender immediately prior to fee in the relevant amount and at the times agreed between the applicable Borrower and that Additional Facility becoming effective:
(A) the Initial Additional Facility Lender entering into the documentation required for it to accede to the Intercreditor Agreement; and
(B) the performance by the Facility Agent of all necessary “know your client” or other similar checks under all applicable laws and regulations in relation to the Additional Facility Commitments, the completion of which the Facility Agent shall promptly notify 63140965_9 to the Company, the Initial Additional Facility Lender and each L/C BankLender.
(c) Subject to the conditions in this Clause 2.2 being met, from the relevant Additional Facility Commencement Date for an Additional Facility, the Initial Additional Facility Lenders for that Additional Facility shall make available the Additional Facility in a maximum aggregate amount not exceeding the aggregate Additional Facility Commitments in respect of that Additional Facility as set out in the relevant Additional Facility Accession Agreement subject to the terms of this Agreement.
(dk) Each Initial Additional Facility Lender shall become a party to this Agreement and be entitled to share in the Transaction Security Collateral in accordance with this Agreement, any applicable Collateral Sharing Agreement (prior to the terms of the SPV Structure Termination Date), any applicable Intercreditor Agreement (on or after the SPV Structure Termination Date) and the Security Collateral Documents pari passu with the Lenders under the other Facilities Facilities; provided that the Company Additional Facility Borrowers and each Initial the relevant Additional Facility Lender in relation to an Additional Facility may agree that an Additional Facility shall be entitled to share shares in the Transaction Security Collateral on a junior basis to the Lenders under the other Facilities or which, if so agreed, shall not be entitled to share set out in the Transaction Security either in accordance with relevant Additional Facility Joinder Agreement. In addition, each Additional Facility Lender shall be subject to any applicable Collateral Sharing Agreement (prior to the terms of the SPV Structure Termination Date), any applicable Intercreditor Agreement (on or pursuant to ancillary after the SPV Structure Termination Date) or enter into equivalent collateral sharing or intercreditor arrangementsarrangements having a similar effect.
(el) Each party to this Agreement (other than each proposed Initial Additional Facility Lender, the Parent, the Company applicable Borrower and each proposed Additional Facility Borrower) irrevocably authorises authorizes and instructs the Facility Administrative Agent to execute on its behalf any Additional Facility Accession Joinder Agreement which has been duly completed and signed on behalf of each proposed Initial Additional Facility Lender, the Parent, the Company applicable Borrower and each proposed Additional Facility Borrower and each Obligor Loan Party agrees to be bound by such accessionjoinder.
(f) The execution by the Parent, the Company and the relevant Borrower of an Additional Facility Accession Agreement constitutes confirmation by each Guarantor that its obligations under Clause 21 (Guarantee and Indemnity) shall continue unaffected except that those obligations shall extend to the Total Commitments as increased by the addition of the relevant Lender’s Commitment and shall be owed to each Finance Party including the relevant Lender.
(g) The Company may pay to any Initial Additional Facility Lender a fee in the amount and at the times agreed between the Company and that Initial Additional Facility Lender.
(hm) On the Additional Facility Commencement Date:
(i) each Initial Additional Facility Lender party to that Additional Facility Accession Joinder Agreement, each other Finance Party and the Obligors Loan Parties shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had each Initial Additional Facility Lender been an Original Lendera Lender on the 2021 Amendment Effective Date or Effective Date, as applicable, with the rights and/or obligations assumed by it as a result of that accession and with the Commitment specified by it as its Additional Facility Commitment; and 63140965_9and
(ii) each Initial Additional Facility Lender shall become a party to this Agreement as an “Initial Additional Facility Lender”.
(in) [Reserved.]
(o) With the prior written consent of the CompanyBorrowers, the Facility Administrative Agent is authorised authorized and instructed to enter into such documentation as is reasonably required to amend this Agreement Agreement, any other Loan Document and any other Proceeds Loan Finance Document (in accordance with the terms of this Clause 2.2Section 2.14) to reflect the terms of each Additional Facility without the consent of any Lender other than each applicable Initial Additional Facility Lender, including amendments as deemed necessary by the Administrative Agent in its reasonable judgment to effect any lien or payment subordination and associated rights of the applicable Lenders to the extent any Additional Facilities are to rank junior in right of security or payment or to address technical issues relating to funding and payments.
(p) This Section 2.14 shall supersede any provisions in Section 2.13 or Section 10.01 to the contrary.
(q) The facilities under which any Term Commitments or Revolving Credit Commitments have been made available may be increased by any amount (an “Increase”) which shall not exceed the Additional Facility Available Amount by the execution by any Lender or Additional Facility Lender of one or more Additional Facility Joinder Agreements or Increase Confirmations (under which the Maturity Date, Applicable Rate and any other economic terms applicable to the relevant Additional Facility Commitments are the same as those applicable to the existing Term Commitments or Revolving Credit Commitments, as applicable). Following any such Increase, references to Term Loans and Revolving Credit Loans, as applicable, and the Lenders in respect of the Term Loans and Revolving Credit Loans, as applicable, shall include Lenders and Loans made under any such Additional Facility Joinder Agreements or Increase Confirmations. In respect of any such Increase:
(i) (A) on the date of the proposed Increase, all representations and warranties to be made in a Request for Credit Extension in accordance with Section 4.03 shall be true and correct in all material respects (or, with respect to any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language, after giving effect to any qualification therein, in all respects) on and as of the date of the proposed Increase with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to any such representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language, after giving effect to any qualification therein, in all respects) as of such earlier date, and (B) no Event of Default is continuing on such date or would occur after giving effect to the proposed advance; provided that, in connection with any such Increase the primary purpose of which is to finance a Limited Condition Transaction, the conditions set forth in Section 2.14(q)(i)(A) and (B) shall not be required to be satisfied (other than to the extent required by any Lender or Additional Facility Lender in respect of such Increase);
(ii) each party to this Agreement (other than the relevant Lender or Additional Facility Lender and the applicable Borrower) irrevocably authorizes and instructs the Administrative Agent to execute on its behalf any Additional Facility Joinder Agreement or Increase Confirmation which has been duly completed and signed on behalf of each Lender or proposed Additional Facility Lender, the applicable Borrower and each Loan Party agrees to be bound by such joinder; and
(iii) with the prior written consent of the Borrowers, the Administrative Agent is authorized and instructed to enter into such documentation as is reasonably required to amend this Agreement, any other Loan Document and any Proceeds Loan Finance Document (in accordance with the terms of this Section 2.14) to reflect the terms of each Increase without the consent of any Lender other than each applicable Additional Facility Lender.
(jr) Clause 27.4 Upon any Additional Facility Commencement Date on which Revolving Credit Commitments in respect of an Additional Revolving Facility (Limitation the “Additional Revolving Credit Commitments”) are effected through an increase in the Revolving Credit Commitments with respect to any existing Facility (the “Original Revolving Credit Facility”) pursuant to this Section 2.14, each of responsibility the Revolving Credit Lenders under such Facility shall assign to each of Existing the Additional Lenders under such Additional Revolving Facility (the “Additional Revolving Credit Lenders) ”), and each of the Additional Revolving Credit Lenders shall apply mutatis mutandis purchase from each of the Revolving Credit Lenders, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Additional Facility Commencement Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Credit Loans will be held by existing Revolving Credit Lenders and Additional Revolving Credit Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such Additional Revolving Credit Commitments to the Revolving Credit Commitments; provided that the Administrative Agent and the Company may agree to give effect to the foregoing provisions on or after the next Interest Payment Date with respect to any Revolving Credit Loans outstanding under the Original Revolving Credit Facility on the Additional Facility Commencement Date. The Administrative Agent and the Lenders hereby agree that the minimum borrowing and prepayment requirements in this Clause 2.2 in relation to any Initial Additional Facility Lender as if references in that Clause to:
(i) a “Transferor” were references to all the Lenders immediately prior Agreement shall not apply to the relevant Additional Facility becoming effective ;
(ii) transactions effected pursuant to the “New Lender” were references to that “Initial Additional Facility Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”immediately preceding sentence.
Appears in 1 contract
Additional Facilities. 33
(a) The Company may notify the Facility Agent by no less than 2 Business Days’ notice that it wishes to establish one or more Additional Facilities by delivery Although this Agreement --------------------- expressly refers to the Chattanooga, Tennessee corporate headquarters Facility Agent of an Additional Facility Accession Agreement duly completed and executed by a Lender (or any person that is not a Lender that proposes to become a Lender under that Additional Facilitythe "HEADQUARTERS FACILITY"), the Parentthis Agreement, the Company and, if the Additional Facility is Lease and other Operative Documents may provide for up to 3 additional facilities for terminals to be granted to an Additional Borroweradded (the "ADDITIONAL FACILITIES"), the relevant Additional Borrower, provided, in respect of each Additional Facility, thatsubject to:
(i) other than in relation to a Limited Condition Transaction, no Event the resonable satisfaction of Default is continuing or would result from that the Lessor with each such Additional Facility being establishedFacility;
(ii) the principal amount (in euroidentification of Lease Participants willing to purchase not less than 40% of the aggregate Lessor Investments for the Headquarters Facility, US Dollars or an Additional Currency), interest rate, interest periods, Termination Date, use of proceeds, repayment schedule, availability, fees, incorporation of relevant clauses relating to, or in connection with any each such Additional Facility and related provisions and the currency (which must be euros, US Dollars or an all other Additional Currency) of that Additional Facility shall be agreed by the relevant Additional Borrowers and the relevant Initial Additional Facility Lenders (and, in the case of currency and incorporation of the relevant clauses relating to, or in connection with, any Additional Facility which is a revolving facility, the Facility Agent) and set out in the relevant Additional Facility AccessionFacilities previously added pursuant to Lease Supplements;
(iii) the relevant execution by the Lessee, the Lessor and the Lease Participants and delivery to the Lessor of a Lease Supplement (a "Lease Supplement") with respect to such Additional Facility, in form and substance satisfactory to the Lessor and the Company which shall, among other things (a) describe the Site and the Additional Facility, (b) set forth the maximum Facility Cost with respect to such Additional Facility Accession Agreement shall specify whether that and increase the Lessor Investment Commitment (and the Lease Participant Commitments pertaining thereto) to take into account such Additional Facility is (but in form no event shall the Facility Cost for all Facilities and the Lessor Investment Commitment for all Facilities be increased to an amount in excess of a term or revolving facility; and$30,000,000);
(iv) subject to paragraph (ii) above, the general terms of that Additional Facility shall be consistent in all material respects with the terms of this Agreement.
(b) An increase in the Total Commitments pursuant to an Additional Facility will only be effective on:
(i) the execution by the Facility Agent Lessor and delivery to the Lease Participants (with a copy to the Lessee) of an a new Ownership Certificate, taking into account the matters described in this Section 11.22;
(v) the satisfaction as to such Additional Facility Accession Agreement with all the relevant closing conditions set forth in the Operative Documents with respect to the Headquarters Facility and any other closing conditions which has been duly executed by each other relevant party theretothe Lessor may require with respect to the Additional Facility; and
(iivi) in relation to an Initial Additional Facility Lender which is not a Lender immediately on or prior to the relevant Additional Facility becoming effective:
(A) addition of the Initial Additional Facility Lender entering into the documentation required for it to accede to the Intercreditor Agreement; and
(B) the performance by the Facility Agent of all necessary “know your client” or other similar checks under all applicable laws and regulations in relation to the Additional Facility Commitments, the completion of which the Facility Agent shall promptly notify 63140965_9 to the Company, the Initial Additional Facility Lender and each L/C Bank.
(c) Subject to the conditions in this Clause 2.2 being met, from the relevant Additional Facility Commencement Date for an first Additional Facility, the Initial satisfaction of the Syndication Requirement. If such Additional Facility Lenders for that Additional Facilities are added, the terms and conditions set forth in this Agreement, the Lease and the other Operative Documents with respect to the Headquarters Facility shall make available apply thereto the Additional Facility in a maximum aggregate amount not exceeding the aggregate Additional Facility Commitments in respect of that Additional Facility same as set out in the relevant Additional Facility Accession Agreement subject to if they had been initially included herein, and the terms of this Agreement.
(d) Each Initial Additional Facility Lender and Site, and all other related terms, shall become a party to this Agreement mean, include and be entitled to share in applicable to, as the Transaction Security in accordance with the terms of the Intercreditor Agreement and the Security Documents pari passu with the Lenders under the other Facilities provided that the Company and each Initial Additional Facility Lender in relation to an Additional Facility may agree that an Additional Facility context shall be entitled to share in the Transaction Security on a junior basis to the Lenders under the other Facilities or shall not be entitled to share in the Transaction Security either in accordance with the terms of the Intercreditor Agreement or pursuant to ancillary intercreditor arrangements.
(e) Each party to this Agreement (other than each proposed Initial Additional Facility Lenderrequire, the ParentHeadquarters Facility and any one, the Company and each proposed or more, or all, of such Additional Borrower) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Additional Facility Accession Agreement which has been duly completed and signed on behalf of each proposed Initial Additional Facility LenderFacilities, the Parent, the Company and each proposed Additional Borrower and each Obligor agrees to be bound by with such accession.
(f) The execution by the Parent, the Company and the relevant Borrower of an Additional Facility Accession Agreement constitutes confirmation by each Guarantor that its obligations under Clause 21 (Guarantee and Indemnity) shall continue unaffected except that those obligations shall extend to the Total Commitments as increased by the addition of the relevant Lender’s Commitment and shall be owed terms being separately applicable to each Finance Party including the relevant LenderFacility.
(g) The Company may pay to any Initial Additional Facility Lender a fee in the amount and at the times agreed between the Company and that Initial Additional Facility Lender.
(h) On the Additional Facility Commencement Date:
(i) each Initial Additional Facility Lender party to that Additional Facility Accession Agreement, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had each Initial Additional Facility Lender been an Original Lender, with the rights and/or obligations assumed by it as a result of that accession and with the Commitment specified by it as its Additional Facility Commitment; and 63140965_9
(ii) each Initial Additional Facility Lender shall become a party to this Agreement as an “Initial Additional Facility Lender”.
(i) With the prior written consent of the Company, the Facility Agent is authorised and instructed to enter into such documentation as is reasonably required to amend this Agreement and any other Finance Document (in accordance with the terms of this Clause 2.2) to reflect the terms of each Additional Facility without the consent of any Lender other than each applicable Initial Additional Facility Lender.
(j) Clause 27.4 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this Clause 2.2 in relation to any Initial Additional Facility Lender as if references in that Clause to:
(i) a “Transferor” were references to all the Lenders immediately prior to the relevant Additional Facility becoming effective ;
(ii) the “New Lender” were references to that “Initial Additional Facility Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Samples: Investment and Participation Agreement (Us Xpress Enterprises Inc)
Additional Facilities. 33
(a) The Company may notify the Facility Agent by no less than 2 Business Days’ notice that it wishes to establish one or more Additional Facilities by delivery Although this --------------------- Agreement expressly refers to the Chattanooga, Tennessee corporate headquarters Facility Agent of an Additional Facility Accession Agreement duly completed and executed by a Lender (or any person that is not a Lender that proposes to become a Lender under that Additional the "Headquarters Facility"), the Parentthis Agreement, the Company and, if the Additional Facility is Lease and other Operative Documents may provide for up to 3 additional facilities for terminals to be granted to an added (the "Additional BorrowerFacilities"), the relevant Additional Borrower, provided, in respect of each Additional Facility, thatsubject to:
(i) other than in relation to a Limited Condition Transaction, no Event the reasonable satisfaction of Default is continuing or would result from that the Lessor with each such Additional Facility being establishedFacility;
(ii) the principal amount execution by the Lessee and the Lessor (and the Lease Participants, if any) and delivery to the Lessor of a Lease Supplement (a "Lease Supplement") with respect to such Additional Facility, in euroform and substance satisfactory to the Lessor and the Company which shall, US Dollars or an among other things (a) describe the Site and the Additional Currency)Facility, interest rate, interest periods, Termination Date, use of proceeds, repayment schedule, availability, fees, incorporation of relevant clauses relating to, or in connection (b) set forth the maximum Facility Cost with any respect to such Additional Facility and related provisions to take into account such Additional Facility (but in no event shall the Facility Cost for all Facilities and the currency (which must Lessor Investment Commitment for all Facilities be euros, US Dollars or increased to an Additional Currency) amount in excess of that Additional Facility shall be agreed by the relevant Additional Borrowers and the relevant Initial Additional Facility Lenders (and, in the case of currency and incorporation of the relevant clauses relating to, or in connection with, any Additional Facility which is a revolving facility, the Facility Agent) and set out in the relevant Additional Facility Accession$32,000,000);
(iii) if there are any Lease Participants, the relevant Additional Facility Accession Agreement shall specify whether that Additional Facility is in form execution by the Lessor and delivery to the Lease Participants (with a copy to the Lessee) of a term or revolving facilitynew Ownership Certificate, taking into account the matters described in this Section 11.22; and
(iv) subject the satisfaction as to paragraph (ii) above, the general terms of that such Additional Facility shall be consistent in with all material respects with the terms of this Agreement.
(b) An increase relevant closing conditions set forth in the Total Commitments pursuant to an Additional Facility will only be effective on:
(i) the execution by the Facility Agent of an Additional Facility Accession Agreement which has been duly executed by each other relevant party thereto; and
(ii) in relation to an Initial Additional Facility Lender which is not a Lender immediately prior Operative Documents with respect to the relevant Additional Headquarters Facility becoming effective:
(A) and any other closing conditions which the Initial Additional Facility Lender entering into the documentation required for it to accede to the Intercreditor Agreement; and
(B) the performance by the Facility Agent of all necessary “know your client” or other similar checks under all applicable laws and regulations in relation Lessor may require with respect to the Additional Facility CommitmentsFacility. If such Additional Facilities are added, the completion of which terms and conditions set forth in this Agreement, the Facility Agent shall promptly notify 63140965_9 Lease and the other Operative Documents with respect to the CompanyHeadquarters Facility shall apply thereto the same as if they had been initially included herein, and the terms Facility and Site, and all other related terms, shall mean, include and be applicable to, as the context shall require, the Initial Headquarters Facility and any one, or more, or all, of such Additional Facility Lender and Facilities, with such terms being separately applicable to each L/C BankFacility.
(c) Subject 3. Amendments to Schedule 1.02. Schedule 1.02 to the conditions in this Clause 2.2 being metInvestment --------------------------- Agreement hereby is amended by deleting the definitions of "A Percentage Lessor Investment Commitment", from "A Percentage Lessor Investments", "B Percentage Lessor Investment Commitment", "B Percentage Lessor Investments", "Facility Cost", "Lessor Investment Commitment", "Scheduled Lease Termination Date" and "Syndication Requirement" and inserting the relevant Additional following new definitions of "Facility Commencement Date for an Additional FacilityCost", the Initial Additional Facility Lenders for that Additional Facility shall make available the Additional Facility in a maximum aggregate amount not exceeding the aggregate Additional Facility Commitments in respect of that Additional Facility as set out in the relevant Additional Facility Accession Agreement subject to the terms of this Agreement.
(d) Each Initial Additional Facility Lender shall become a party to this Agreement "Lessor Investment Commitment" and be entitled to share in the Transaction Security in accordance with the terms of the Intercreditor Agreement and the Security Documents pari passu with the Lenders under the other Facilities provided that the Company and each Initial Additional Facility Lender in relation to an Additional Facility may agree that an Additional Facility shall be entitled to share in the Transaction Security on a junior basis to the Lenders under the other Facilities or shall not be entitled to share in the Transaction Security either in accordance with the terms of the Intercreditor Agreement or pursuant to ancillary intercreditor arrangements.
(e) Each party to this Agreement (other than each proposed Initial Additional Facility Lender, the Parent, the Company and each proposed Additional Borrower) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Additional Facility Accession Agreement which has been duly completed and signed on behalf of each proposed Initial Additional Facility Lender, the Parent, the Company and each proposed Additional Borrower and each Obligor agrees to be bound by such accession.
(f) The execution by the Parent, the Company and the relevant Borrower of an Additional Facility Accession Agreement constitutes confirmation by each Guarantor that its obligations under Clause 21 (Guarantee and Indemnity) shall continue unaffected except that those obligations shall extend to the Total Commitments as increased by the addition of the relevant Lender’s Commitment and shall be owed to each Finance Party including the relevant Lender.
(g) The Company may pay to any Initial Additional Facility Lender a fee in the amount and at the times agreed between the Company and that Initial Additional Facility Lender.
(h) On the Additional Facility Commencement "Scheduled Lease Termination Date":
(i) each Initial Additional Facility Lender party to that Additional Facility Accession Agreement, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had each Initial Additional Facility Lender been an Original Lender, with the rights and/or obligations assumed by it as a result of that accession and with the Commitment specified by it as its Additional Facility Commitment; and 63140965_9
(ii) each Initial Additional Facility Lender shall become a party to this Agreement as an “Initial Additional Facility Lender”.
(i) With the prior written consent of the Company, the Facility Agent is authorised and instructed to enter into such documentation as is reasonably required to amend this Agreement and any other Finance Document (in accordance with the terms of this Clause 2.2) to reflect the terms of each Additional Facility without the consent of any Lender other than each applicable Initial Additional Facility Lender.
(j) Clause 27.4 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this Clause 2.2 in relation to any Initial Additional Facility Lender as if references in that Clause to:
(i) a “Transferor” were references to all the Lenders immediately prior to the relevant Additional Facility becoming effective ;
(ii) the “New Lender” were references to that “Initial Additional Facility Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Samples: Investment and Participation Agreement (Us Xpress Enterprises Inc)
Additional Facilities. 33
(a) The Company may notify the Facility Agent by no less than 2 Business Days’ notice that it wishes to establish one or more Additional Facilities by delivery to the Facility Agent of an Additional Facility Accession Agreement duly completed and executed by a Lender (or any person that is not a Lender that proposes to become a Lender under that Additional Facility), the Parent, the Company and, if the Additional Facility is to be granted to an Additional Borrower, the relevant Additional Borrower, provided, in respect of each Additional Facility, that:
(i) other than in relation to a Limited Condition Transaction, no Event of Default is continuing or would result from that Additional Facility being established;
(ii) the principal amount (in euro, US Dollars or an Additional Currency), interest rate, interest periods, Termination Date, use of proceeds, repayment schedule, availability, fees, incorporation of relevant clauses relating to, or in connection with any Additional Facility and related provisions and the currency (which must be euros, US Dollars or an Additional Currency) of that Additional Facility shall be agreed by the relevant Additional Borrowers and the relevant Initial Additional Facility Lenders (and, in the case of currency and incorporation of the relevant clauses relating to, or in connection with, any Additional Facility which is a revolving facility, the Facility Agent) and set out in the relevant Additional Facility Accession;
(iii) the relevant Additional Facility Accession Agreement shall specify whether that Additional Facility is in form of a term or revolving facility; and
(iv) subject to paragraph (ii) above, the general terms of that Additional Facility shall be consistent in all material respects with the terms of this Agreement.
(b) An increase in the Total Commitments pursuant to an Additional Facility will only be effective on:
(i) the execution by the Facility Agent of an Additional Facility Accession Agreement which has been duly executed by each other relevant party thereto; andand 63529049_1
(ii) in relation to an Initial Additional Facility Lender which is not a Lender immediately prior to the relevant Additional Facility becoming effective:
(A) the Initial Additional Facility Lender entering into the documentation required for it to accede to the Intercreditor Agreement; and
(B) the performance by the Facility Agent of all necessary “know your client” or other similar checks under all applicable laws and regulations in relation to the Additional Facility Commitments, the completion of which the Facility Agent shall promptly notify 63140965_9 to the Company, the Initial Additional Facility Lender and each L/C Bank.
(c) Subject to the conditions in this Clause 2.2 2.1 (Additional Facilities) being met, from the relevant Additional Facility Commencement Date for an Additional Facility, the Initial Additional Facility Lenders for that Additional Facility shall make available the Additional Facility in a maximum aggregate amount not exceeding the aggregate Additional Facility Commitments in respect of that Additional Facility as set out in the relevant Additional Facility Accession Agreement subject to the terms of this Agreement.
(d) Each Initial Additional Facility Lender shall become a party to this Agreement and be entitled to share in the Transaction Security in accordance with the terms of the Intercreditor Agreement and the Security Documents pari passu with the Lenders under the other Facilities provided that the Company and each Initial Additional Facility Lender in relation to an Additional Facility may agree that an Additional Facility shall be entitled to share in the Transaction Security on a junior basis to the Lenders under the other Facilities or shall not be entitled to share in the Transaction Security either in accordance with the terms of the Intercreditor Agreement or pursuant to ancillary intercreditor arrangements.
(e) Each party to this Agreement (other than each proposed Initial Additional Facility Lender, the Parent, the Company and each proposed Additional Borrower) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Additional Facility Accession Agreement which has been duly completed and signed on behalf of each proposed Initial Additional Facility Lender, the Parent, the Company and each proposed Additional Borrower and each Obligor agrees to be bound by such accession.
(f) The execution by the Parent, the Company and the relevant Borrower of an Additional Facility Accession Agreement constitutes confirmation by each Guarantor that its obligations under Clause 21 20 (Guarantee and Indemnity) shall continue unaffected except that those obligations shall extend to the Total Commitments as increased by the addition of the relevant Lender’s Commitment and shall be owed to each Finance Party including the relevant Lender.. 35 63529049_1
(g) The Company may pay to any Initial Additional Facility Lender a fee in the amount and at the times agreed between the Company and that Initial Additional Facility Lender.
(h) On the Additional Facility Commencement Date:
(i) each Initial Additional Facility Lender party to that Additional Facility Accession Agreement, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had each Initial Additional Facility Lender been an Original Lender, with the rights and/or obligations assumed by it as a result of that accession and with the Commitment specified by it as its Additional Facility Commitment; and 63140965_9
(ii) each Initial Additional Facility Lender shall become a party to this Agreement as an “Initial Additional Facility Lender”.
(i) With the prior written consent of the Company, the Facility Agent is authorised and instructed to enter into such documentation as is reasonably required to amend this Agreement and any other Finance Document (in accordance with the terms of this Clause 2.2) to reflect the terms of each Additional Facility without the consent of any Lender other than each applicable Initial Additional Facility Lender.
(j) Clause 27.4 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this Clause 2.2 in relation to any Initial Additional Facility Lender as if references in that Clause to:
(i) a “Transferor” were references to all the Lenders immediately prior to the relevant Additional Facility becoming effective ;
(ii) the “New Lender” were references to that “Initial Additional Facility Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Samples: Additional Facility Accession Agreement (Liberty Global PLC)
Additional Facilities. 33
(a) The Company may notify the Facility Agent by no less than 2 Business Days’ notice that it wishes to establish one or more Additional Facilities by delivery to the Facility Agent of an Additional Facility Accession Agreement duly completed and executed by a Lender (or any person that is not a Lender that proposes to become a Lender under that Additional Facility), the Parent, the Company and, if the Additional Facility is to be granted to an Additional Borrower, the relevant Additional Borrower, provided, in respect of each Additional Facility, that:
If: (i) other than AEPTHC, the Ohio Series or the Ohio Operating Company is designated in relation to a Limited Condition Transaction, no Event of Default is continuing or would result from that Additional Facility being established;
any RTEP through and including the 2010 RTEP; and (ii) the principal amount (Ohio Operating Company subsequently receives a certificate of environmental compatibility and public need from the OPSB to construct the Ohio Facilities, the AYE Series Administrative Committee shall, subject to the conditions set forth in eurothis Section 3.07, US Dollars or an Additional Currency), interest rate, interest periods, Termination Date, use of proceeds, repayment schedule, availability, fees, incorporation of relevant clauses relating to, or in connection with any Additional Facility and related provisions and cause the currency (which must be euros, US Dollars or an Additional Currency) of that Additional Facility shall be agreed by AYE Operating Company to offer to transfer to the relevant Additional Borrowers and the relevant Initial Additional Facility Lenders (and, West Virginia Operating Company discrete equipment included in the case of currency and incorporation Bedington-Kemptown Facilities (the “Additional Facilities”) with a Net Book Value approximately equal to the Axxx Upgrade Cost. The Administrators of the relevant clauses relating toWest Virginia Series appointed by AEPTHC shall have exclusive authority to elect, on behalf of the West Virginia Operating Company, whether or in connection with, any not to purchase the Additional Facility which is a revolving facility, the Facility Agent) and set out in the relevant Additional Facility Accession;
(iii) the relevant Additional Facility Accession Agreement shall specify whether that Additional Facility is in form of a term or revolving facility; and
(iv) subject to paragraph (ii) above, the general terms of that Additional Facility shall be consistent in all material respects with the terms of this AgreementFacilities.
(b) An increase in The AYE Series Member shall cause the Total Commitments pursuant AYE Operating Company to an seek authority to Dispose of the Additional Facility will only be effective on:
Facilities to the West Virginia Operating Company promptly upon the later to occur of: (i) the execution by substantial completion of the Facility Agent Axxx Upgrade such that it is capable of an Additional Facility Accession Agreement which has been duly executed by each other relevant party theretobeing placed in service; and
(ii) the substantial completion of the Additional Facilities such that they are capable of being placed in relation to an Initial Additional Facility Lender which is not service; and (iii) issuance of a Lender immediately prior certificate of environmental compatibility and public need from the OPSB to the relevant Ohio Operating Company to construct the Ohio Facilities. Any obligation to Dispose of the Additional Facility becoming effective:
(A) the Initial Additional Facility Lender entering into the documentation required for it to accede Facilities to the Intercreditor Agreement; and
(B) West Virginia Operating Company shall be subject to the performance receipt by the Facility Agent AYE Series and the AYE Operating Company of any and all necessary “know your client” or other similar checks under all applicable laws and regulations in relation Governmental Approvals required to the Dispose of such Additional Facility Commitments, the completion of which the Facility Agent shall promptly notify 63140965_9 to the Company, the Initial Additional Facility Lender and each L/C BankFacilities.
(c) Subject The Series Members of the West Virginia Series acknowledge and agree that the AYE Operating Company shall have exclusive authority to identify the Additional Facilities at its discretion; provided, however, that: (i) the Additional Facilities shall be located in West Virginia; and (ii) the Additional Facilities shall, to the conditions in this Clause 2.2 being met, from the relevant Additional Facility Commencement Date for an Additional Facility, the Initial Additional Facility Lenders for that Additional Facility shall make available the Additional Facility in a maximum aggregate amount not exceeding the aggregate Additional Facility Commitments in respect of that Additional Facility extent practicable (as set out determined in the relevant Additional Facility Accession Agreement subject reasonable judgment of the AYE Operating Company), be operationally proximate to the terms of this Agreement.Bedington-Kemptown Facilities that operate at 765 kV.
(d) Each Initial Additional Facility Lender shall become a party to this Agreement and be entitled to share in the Transaction Security in accordance with the terms Promptly upon completion of the Intercreditor Agreement and Axxx Upgrade, the Security Documents pari passu with the Lenders under the other Facilities provided that the Company and each Initial Additional Facility Lender in relation to an Additional Facility may agree that an Additional Facility West Virginia Series Administrative Committee shall be entitled to share in the Transaction Security on a junior basis deliver to the Lenders under AYE Series Administrative Committee written certification (with reasonable supporting documentation), in form and substance reasonably acceptable to the other Facilities or shall not be entitled to share in the Transaction Security either in accordance with the terms AYE Series Administrative Committee, of the Intercreditor Agreement total capitalized cost incurred by the West Virginia Operating Company to construct and install the Axxx Upgrade (such cost, the “Axxx Upgrade Cost”). The West Virginia Series Administrative Committee shall cause all capitalized costs incurred by the West Virginia Operating Company to construct and install the Axxx Upgrade to be accounted for separately from other costs of the West Virginia Operating Company or pursuant to ancillary intercreditor arrangementsthe West Virginia Series.
(e) Each party to this Agreement (other than each proposed Initial In consideration of the Disposition of the Additional Facility LenderFacilities, the ParentWest Virginia Operating Company shall be obligated to pay to the AYE Operating Company an amount equal to: (i) the Net Book Value of the Additional Facilities; less (ii) the Additional Facilities Return Amount, if any. In order to facilitate the purchase of the Additional Facilities by the West Virginia Operating Company, the Company and each proposed Additional Borrower) irrevocably authorises and instructs West Virginia Series Administrative Committee shall issue Series Capital Calls to the Facility Agent West Virginia Series Members in an aggregate amount equal to execute on its behalf any Additional Facility Accession Agreement which has been duly completed and signed on behalf of each proposed Initial Additional Facility Lender, the Parent, the Company and each proposed Additional Borrower and each Obligor agrees to be bound by such accessionamount.
(f) The execution Additional Facilities Disposition Date shall occur no earlier than the latest to occur of: (i) the date of substantial completion of the Axxx Upgrade such that it is capable of being placed in service; (ii) the date of substantial completion of the Additional Facilities such that they are capable of being placed in service; and (iii) receipt of all Governmental Approvals necessary for the Disposition of the Additional Facilities by the ParentAYE Operating Company. As of the Additional Facilities Disposition Date, if any, the Company Additional Facilities shall be included in the West Virginia Facilities and the relevant Borrower of an Additional Facility Accession Agreement constitutes confirmation by each Guarantor that its obligations under Clause 21 (Guarantee and Indemnity) shall continue unaffected except that those obligations shall extend to the Total Commitments as increased by the addition no longer be part of the relevant Lender’s Commitment and shall be owed to each Finance Party including the relevant LenderBedington-Kemptown Facilities.
(g) In connection with the Disposition of the Additional Facilities pursuant to this Section 3.07, the AYE Operating Company shall: (i) represent and warrant to the West Virginia Operating Company that (A) it has good title to the Additional Facilities, (B) there are no Encumbrances for any indebtedness or any other Encumbrances on such Additional Facilities other than pursuant to this Agreement, (C) the AYE Operating Company has due authority to Dispose of such Additional Facilities to the West Virginia Operating Company, (D) the agreement transferring the Additional Facilities to the West Virginia Operating Company is valid and enforceable against the AYE Operating Company, and (E) the Disposition of the Additional Facilities to the West Virginia Operating Company does not violate any applicable Law in any material respect or cause a default under any material agreement to which the AYE Operating Company is a party; (ii) disclose in writing the existence and nature of any pending or, to the AYE Operating Company’s actual knowledge without any obligation of due inquiry, threatened litigation or arbitration or any audit or investigation initiated by any Governmental Authority against the AYE Operating Company related to the Additional Facilities; and (iii) sign such documents as may reasonably be requested by the West Virginia Operating Company. The Company may pay to any Initial representations and warranties described in clause (i) of this Section 3.07(g) shall not survive the closing of the sale of the Additional Facility Lender Facilities, except for the representations and warranties described in clauses (i)(A), (i)(C), (i)(D) and (i)(E) of this Section 3.07(g), each of which shall survive such closing on such Disposition for a fee in the amount and at the times agreed between the Company and that Initial Additional Facility Lenderperiod of one (1) year.
(h) On Notwithstanding any other provision of this Agreement to the contrary, in the event the AYE Operating Company discloses the existence of any pending or threatened litigation or other proceeding required to be disclosed pursuant to Section 3.07(g), or the West Virginia Operating Company reasonably determines that the representation and warranty required by clause (i)(B) of Section 3.07(g) is inaccurate, the West Virginia Operating Company may, in its sole discretion, and as its exclusive remedy based on such disclosure, elect not to purchase the Additional Facility Commencement Date:
(i) each Initial Additional Facility Lender party to that Additional Facility Accession Agreement, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had each Initial Additional Facility Lender been an Original Lender, with the rights and/or obligations assumed by it as a result of that accession and with the Commitment specified by it as its Additional Facility Commitment; and 63140965_9
(ii) each Initial Additional Facility Lender shall become a party to this Agreement as an “Initial Additional Facility Lender”Facilities.
(i) With the prior written consent Simultaneous with any Disposition of the Additional Facilities to the West Virginia Operating Company, the Facility Agent is authorised and instructed to enter into such documentation as is reasonably required to amend this Agreement and any other Finance Document (in accordance with the terms of this Clause 2.2) to reflect the terms of each Additional Facility without the consent of any Lender other than each applicable Initial Additional Facility Lender.
(j) Clause 27.4 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this Clause 2.2 in relation to any Initial Additional Facility Lender as if references in that Clause to:
: (i) a “Transferor” were references to all the Lenders immediately prior AYE Operating Company shall grant the West Virginia Operating Company such access to the relevant Additional Facility becoming effective ;
Facilities as may be reasonably necessary to own, operate and maintain the Additional Facilities; and (ii) the “New Lender” were references AYE Series Administrative Committee shall cause the AYE Operating Company to that “Initial execute and deliver an Environmental Indemnity Agreement to the West Virginia Operating Company. Upon the Disposition of the Additional Facility Lender”; and
(iii) a “reFacilities by the AYE Operating Company, such Additional Facilities shall no longer be included in the Bedington-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”Kemptown Facilities.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Allegheny Energy, Inc)
Additional Facilities. 33
(a) The Company may notify the Facility Agent by no less than 2 By at least two Business Days’ notice to the Administrative Agent (or such shorter period as the Administrative Agent shall agree), and pursuant to the terms and conditions in this Section 2.14 and in the applicable Additional Facility Joinder Agreement or Increase Confirmation, an Additional Facility or an Increase (as defined below) may be provided to any Loan Party in an aggregate principal amount not to exceed the Additional Facility Available Amount (as determined on the date of Incurrence thereof); provided that it wishes (i) on the date of the proposed Additional Facility Loan all representations and warranties to establish one be made in a Request for Credit Extension in accordance with Section 4.03 are true and correct in all material respects (or, with respect to any representation or more warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language, after giving effect to any qualification therein, in all respects) on and as of the date of the proposed Additional Facility Loan with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to any such representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language, after giving effect to any qualification therein, in all respects) as of such earlier date, and (ii) no Event of Default is continuing on such date or would occur after giving effect to the proposed advance; provided, further, that in connection with any Additional Facility the primary purpose of which is to finance a Limited Condition Transaction, the conditions set forth in the Section 2.14(a)(i) and (ii) shall not be required to be satisfied (other than to the extent required by the Additional Facility Lenders party thereto).
(b) Any person may become a Lender under this Agreement by delivering to the Administrative Agent an Additional Facility Joinder Agreement which must be duly executed by that person, the Administrative Agent, the applicable Borrower and the applicable Additional Borrower, if any. That person shall become a Lender on the date specified in the Additional Facility Joinder Agreement. Additional Facilities may be provided by delivery any existing Lender, but no existing Lender will have an obligation to make an Additional Facility Commitment nor will the applicable Borrower have any obligation to approach any existing Lender to provide any Additional Facility Commitment.
(c) Upon the relevant person becoming a Lender, the total of the Commitments under this Agreement shall be increased by the amount set out in the relevant Additional Facility Joinder Agreement as that Lender’s Additional Facility Commitment.
(d) Each Lender under an Additional Facility will grant to the applicable Borrower a term or revolving loan facility in the amount specified in the relevant Additional Facility Agent Joinder Agreement during the Additional Facility Availability Period specified in the Additional Facility Joinder Agreement, subject to the terms of this Agreement.
(e) No Additional Facility shall have the benefit of any guarantee unless the existing Lenders also share in such guarantee. The execution by the applicable Borrower, the Guarantors and the relevant Additional Borrower of the Additional Facility Joinder Agreement shall constitute confirmation by each Guarantor that its obligations under the Guaranty shall extend to the total of the Commitments as increased by the addition of the relevant Lender’s Commitment and shall be owed to each Secured Party including the relevant Lender but otherwise shall continue unaffected.
(f) The aggregate amount of all outstanding Additional Facility Loans under an Additional Facility shall not at any time exceed the relevant Total Additional Facility Commitments for that Additional Facility.
(g) The aggregate amount of the participations of a Lender in Additional Facility Loans under an Additional Facility shall not at any time exceed that Lender’s Additional Facility Commitment for that Additional Facility at that time.
(h) No Additional Facility shall have the benefit of any security unless the existing Lenders also share in such security (except in the case of a security interest in any Escrow Account during the escrow period applicable to such Additional Facility); provided that the Additional Facility Borrowers and the relevant Additional Facility Lender may agree that an Additional Facility shares in the Collateral on a junior basis to the other Facilities. The effectiveness of an Additional Facility Accession Agreement duly completed and executed by a Lender (or shall be subject to customary reaffirmation in respect of any person that is not a Lender that proposes to become a Lender under that Additional Facility), the Parent, the Company Collateral Documents and, if to the Additional Facility is extent reasonably requested by the Administrative Agent, delivery of a written opinion of counsel to be granted the Loan Parties in form and substance reasonably satisfactory to an Additional Borrower, the relevant Additional Borrower, provided, Administrative Agent.
(i) in respect of each Additional Facility, that:
(i) other than in relation to a Limited Condition Transaction, no Event of Default is continuing or would result from each Additional Facility Borrower for that Additional Facility being establishedis a Loan Party;
(ii) the principal amount (in euro, US Dollars or an Additional Currency)amount, interest rate, interest periods, Termination Latest Maturity Date, use of proceeds, repayment schedule, availability, fees, incorporation of relevant clauses relating to, or in connection with with, any Additional Facility and related provisions provisions, and the currency (which must be euros, US Dollars or an Additional Currency) of that Additional Facility shall be agreed by the relevant Additional Facility Borrowers and the relevant Initial Additional Facility Lenders (and, in the case of currency and incorporation of the relevant clauses relating to, or in connection with, any Additional Facility which is a revolving facility, the Facility Administrative Agent) and set out in the relevant Additional Facility AccessionJoinder Agreement;
(iii) the relevant Additional Facility Accession Joinder Agreement shall specify whether that Additional Facility is in form of a term loan or a revolving facilityloan;
(iv) notwithstanding anything to the contrary in this Agreement, (A) any Additional Revolving Facility may provide for the ability on a voluntary basis to permanently repay and terminate or reduce any Revolving Credit Commitments on a pro rata basis, less than or greater than a pro rata basis with other outstanding revolving Facilities hereunder and (B) any Additional Facility Loan in the form of a term loan may participate on a pro rata basis, less than or greater than a pro rata basis in any voluntary prepayments of the Term Loans hereunder under other outstanding Classes of Term Loans, and on a pro rata basis or less than a pro rata basis in any mandatory prepayments of the Term Loans hereunder under other outstanding Classes of Term Loans;
(v) any Additional Facility Commitments may, at the election of the applicable Borrower, be designated as Financial Covenant Commitments;
(vi) each Additional Facility Joinder Agreement may provide for the consent of the Additional Facility Lenders under the applicable Additional Facility (including any Increase in respect thereof) to one or more amendments to this Agreement, the other Loan Documents and the Proceeds Loan Finance Documents (in addition to those amendments contemplated by this Section 2.14(vi)), and each party to this Agreement acknowledges and agrees that such consent shall be binding on all Additional Facility Lenders in respect of such Additional Facility and shall be counted for purposes of the definition of determining whether the consent of the Required Lenders, Required Class Lenders, Required Financial Covenant Lenders and affected Lenders has been obtained, and for all other relevant purposes under Section 10.01; and
(ivvii) subject to paragraph sub-clauses (i), (ii), (iv), (v) and (vi) above, the general terms of that Additional Facility shall be consistent in all material respects with the terms of this Agreement.
(bj) An increase in the Total Commitments pursuant The Borrowers may pay to an Additional Facility will only be effective on:
(i) the execution by the Facility Agent of an Additional Facility Accession Agreement which has been duly executed by each other relevant party thereto; and
(ii) in relation to an Initial any Additional Facility Lender which is not a Lender immediately prior to fee in the relevant amount and at the times agreed between the applicable Borrower and that Additional Facility becoming effective:
(A) the Initial Additional Facility Lender entering into the documentation required for it to accede to the Intercreditor Agreement; and
(B) the performance by the Facility Agent of all necessary “know your client” or other similar checks under all applicable laws and regulations in relation to the Additional Facility Commitments, the completion of which the Facility Agent shall promptly notify 63140965_9 to the Company, the Initial Additional Facility Lender and each L/C BankLender.
(c) Subject to the conditions in this Clause 2.2 being met, from the relevant Additional Facility Commencement Date for an Additional Facility, the Initial Additional Facility Lenders for that Additional Facility shall make available the Additional Facility in a maximum aggregate amount not exceeding the aggregate Additional Facility Commitments in respect of that Additional Facility as set out in the relevant Additional Facility Accession Agreement subject to the terms of this Agreement.
(dk) Each Initial Additional Facility Lender shall become a party to this Agreement and be entitled to share in the Transaction Security Collateral in accordance with this Agreement, any applicable Collateral Sharing Agreement (prior to the terms of the SPV Structure Termination Date), any applicable Intercreditor Agreement (on or after the SPV Structure Termination Date) and the Security Collateral Documents pari passu with the Lenders under the other Facilities Facilities; provided that the Company Additional Facility Borrowers and each Initial the relevant Additional Facility Lender in relation to an Additional Facility may agree that an Additional Facility shall be entitled to share shares in the Transaction Security Collateral on a junior basis to the Lenders under the other Facilities or which, if so agreed, shall not be entitled to share set out in the Transaction Security either in accordance with relevant Additional Facility Joinder Agreement. In addition, each Additional Facility Lender shall be subject to any applicable Collateral Sharing Agreement (prior to the terms of the SPV Structure Termination Date), any applicable Intercreditor Agreement (on or pursuant to ancillary after the SPV Structure Termination Date) or enter into equivalent collateral sharing or intercreditor arrangementsarrangements having a similar effect.
(el) Each party to this Agreement (other than each proposed Initial Additional Facility Lender, the Parent, the Company applicable Borrower and each proposed Additional Facility Borrower) irrevocably authorises authorizes and instructs the Facility Administrative Agent to execute on its behalf any Additional Facility Accession Joinder Agreement which has been duly completed and signed on behalf of each proposed Initial Additional Facility Lender, the Parent, the Company applicable Borrower and each proposed Additional Facility Borrower and each Obligor Loan Party agrees to be bound by such accessionjoinder.
(f) The execution by the Parent, the Company and the relevant Borrower of an Additional Facility Accession Agreement constitutes confirmation by each Guarantor that its obligations under Clause 21 (Guarantee and Indemnity) shall continue unaffected except that those obligations shall extend to the Total Commitments as increased by the addition of the relevant Lender’s Commitment and shall be owed to each Finance Party including the relevant Lender.
(g) The Company may pay to any Initial Additional Facility Lender a fee in the amount and at the times agreed between the Company and that Initial Additional Facility Lender.
(hm) On the Additional Facility Commencement Date:
(i) each Initial Additional Facility Lender party to that Additional Facility Accession Joinder Agreement, each other Finance Party and the Obligors Loan Parties shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had each Initial Additional Facility Lender been an Original Lendera Lender on the Effective Date, with the rights and/or obligations assumed by it as a result of that accession and with the Commitment specified by it as its Additional Facility Commitment; and 63140965_9and
(ii) each Initial Additional Facility Lender shall become a party to this Agreement as an “Initial Additional Facility Lender”.
(in) [Reserved.]
(o) With the prior written consent of the CompanyBorrowers, the Facility Administrative Agent is authorised authorized and instructed to enter into such documentation as is reasonably required to amend this Agreement Agreement, any other Loan Document and any other Proceeds Loan Finance Document (in accordance with the terms of this Clause 2.2Section 2.14) to reflect the terms of each Additional Facility without the consent of any Lender other than each applicable Initial Additional Facility Lender, including amendments as deemed necessary by the Administrative Agent in its reasonable judgment to effect any lien or payment subordination and associated rights of the applicable Lenders to the extent any Additional Facilities are to rank junior in right of security or payment or to address technical issues relating to funding and payments.
(jp) Clause 27.4 This Section 2.14 shall supersede any provisions in Section 2.13 or Section 10.01 to the contrary.
(Limitation of responsibility of Existing Lendersq) The facilities under which any Term Commitments or Revolving Credit Commitments have been made available may be increased by any amount (an “Increase”) which shall apply mutatis mutandis in this Clause 2.2 in relation to not exceed the Additional Facility Available Amount by the execution by any Initial Lender or Additional Facility Lender as if references in that Clause to:
of one or more Additional Facility Joinder Agreements or Increase Confirmations (i) a “Transferor” were references to all under which the Lenders immediately prior Maturity Date, Applicable Rate and any other economic terms applicable to the relevant Additional Facility becoming effective ;
(ii) Commitments are the “New Lender” were same as those applicable to the existing Term Commitments or Revolving Credit Commitments, as applicable). Following any such Increase, references to that “Initial Term Loans and Revolving Credit Loans, as applicable, and the Lenders in respect of the Term Loans and Revolving Credit Loans, as applicable, shall include Lenders and Loans made under any such Additional Facility LenderJoinder Agreements or Increase Confirmations. In respect of any such Increase: (i) (A) on the date of the proposed Increase, all representations and warranties to be made in a Request for Credit Extension in accordance with Section 4.03 shall be true and correct in all material respects (or, with respect to any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language, after giving effect to any qualification therein, in all respects) on and as of the date of the proposed Increase with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to any such representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language, after giving effect to any qualification therein, in all respects) as of such earlier date, and (B) no Event of Default is continuing on such date or would occur after giving effect to the proposed advance; and
provided that, in connection with any such Increase the primary purpose of which is to finance a Limited Condition Transaction, the conditions set forth in Section 2.14(q)(i)(A) and (iiiB) a “re-transfer” and “re-assignment” were references shall not be required to respectively a “transfer” and “assignment”.be satisfied (other than to the extent required by any Lender or Additional Facility Lender in respect of such Increase);
Appears in 1 contract
Additional Facilities. 33
(a) The Company may notify the Facility Agent by no less than 2 By at least two Business Days’ notice to the Administrative Agent (or such shorter period as the Administrative Agent shall agree), and pursuant to the terms and conditions in this Section 2.14 and in the applicable Additional Facility Joinder Agreement or Increase Confirmation, an Additional Facility or an Increase (as defined below) may be provided to any Loan Party in an aggregate principal amount not to exceed the Additional Facility Available Amount (as determined on the date of Incurrence thereof); provided that it wishes (i) on the date of the proposed Additional Facility Loan all representations and warranties to establish one be made in a Request for Credit Extension in accordance with Section 4.03 are true and correct in all material respects (or, with respect to any representation or more warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language, after giving effect to any qualification therein, in all respects) on and as of the date of the proposed Additional Facility Loan with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to any such representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language, after giving effect to any qualification therein, in all respects) as of such earlier date, and (ii) no Event of Default is continuing on such date or would occur after giving effect to the proposed advance; provided, further, that in connection with any Additional Facility the primary purpose of which is to finance a Limited Condition Transaction, the conditions set forth in the Section 2.14(a)(i) and (ii) shall not be required to be satisfied (other than to the extent required by the Additional Facility Lenders party thereto).
(b) Any person may become a Lender under this Agreement by delivering to the Administrative Agent an Additional Facility Joinder Agreement which must be duly executed by that person, the Administrative Agent, the applicable Borrower and the applicable Additional Borrower, if any. That person shall become a Lender on the date specified in the Additional Facility Joinder Agreement. Additional Facilities may be provided by delivery any existing Lender, but no existing Lender will have an obligation to make an Additional Facility Commitment nor will the applicable Borrower have any obligation to approach any existing Lender to provide any Additional Facility Commitment.
(c) Upon the relevant person becoming a Lender, the total of the Commitments under this Agreement shall be increased by the amount set out in the relevant Additional Facility Joinder Agreement as that Lender’s Additional Facility Commitment.
(d) Each Lender under an Additional Facility will grant to the applicable Borrower a term or revolving loan facility in the amount specified in the relevant Additional Facility Agent Joinder Agreement during the Additional Facility Availability Period specified in the Additional Facility Joinder Agreement, subject to the terms of this Agreement.
(e) No Additional Facility shall have the benefit of any guarantee unless the existing Lenders also share in such guarantee. The execution by the applicable Borrower, the Guarantors and the relevant Additional Borrower of the Additional Facility Joinder Agreement shall constitute confirmation by each Guarantor that its obligations under the Guaranty shall extend to the total of the Commitments as increased by the addition of the relevant Lender’s Commitment and shall be owed to each Secured Party including the relevant Lender but otherwise shall continue unaffected. 95007600_2
(f) The aggregate amount of all outstanding Additional Facility Loans under an Additional Facility shall not at any time exceed the relevant Total Additional Facility Commitments for that Additional Facility.
(g) The aggregate amount of the participations of a Lender in Additional Facility Loans under an Additional Facility shall not at any time exceed that Lender’s Additional Facility Commitment for that Additional Facility at that time.
(h) No Additional Facility shall have the benefit of any security unless the existing Lenders also share in such security (except in the case of a security interest in any Escrow Account during the escrow period applicable to such Additional Facility); provided that the Additional Facility Borrowers and the relevant Additional Facility Lender may agree that an Additional Facility shares in the Collateral on a junior basis to the other Facilities. The effectiveness of an Additional Facility Accession Agreement duly completed and executed by a Lender (or shall be subject to customary reaffirmation in respect of any person that is not a Lender that proposes to become a Lender under that Additional Facility), the Parent, the Company Collateral Documents and, if to the Additional Facility is extent reasonably requested by the Administrative Agent, delivery of a written opinion of counsel to be granted the Loan Parties in form and substance reasonably satisfactory to an Additional Borrower, the relevant Additional Borrower, provided, Administrative Agent.
(i) in respect of each Additional Facility, that:
(i) other than in relation to a Limited Condition Transaction, no Event of Default is continuing or would result from each Additional Facility Borrower for that Additional Facility being establishedis a Loan Party;
(ii) the principal amount (in euro, US Dollars or an Additional Currency)amount, interest rate, interest periods, Termination Latest Maturity Date, use of proceeds, repayment schedule, availability, fees, incorporation of relevant clauses relating to, or in connection with with, any Additional Facility and related provisions provisions, and the currency (which must be euros, US Dollars or an Additional Currency) of that Additional Facility shall be agreed by the relevant Additional Facility Borrowers and the relevant Initial Additional Facility Lenders (and, in the case of currency and incorporation of the relevant clauses relating to, or in connection with, any Additional Facility which is a revolving facility, the Facility Administrative Agent) and set out in the relevant Additional Facility AccessionJoinder Agreement;
(iii) the relevant Additional Facility Accession Joinder Agreement shall specify whether that Additional Facility is in form of a term loan or a revolving facilityloan;
(iv) notwithstanding anything to the contrary in this Agreement, (A) any Additional Revolving Facility may provide for the ability on a voluntary basis to permanently repay and terminate or reduce any Revolving Credit Commitments on a pro rata basis, less than or greater than a pro rata basis with other outstanding revolving Facilities hereunder and (B) any Additional Facility Loan in the form of a term loan may participate on a pro rata basis, less than or greater than a pro rata basis in any voluntary or mandatory prepayments of the Term Loans;
(v) any Additional Facility Commitments may, at the election of the applicable Borrower, be designated as Financial Covenant Commitments;
(vi) each Additional Facility Joinder Agreement may provide for the consent of the Additional Facility Lenders under the applicable Additional Facility (including any Increase in respect thereof) to one or more amendments to this Agreement and the other Loan Documents (in addition to those amendments contemplated by this Section 2.14(vi)), and each party to this Agreement acknowledges and agrees that such consent shall be binding on all Additional Facility Lenders in respect of such Additional Facility and shall be counted for purposes of the definition of determining whether the consent of the Required Lenders, Required Class Lenders, Required Financial Covenant Lenders and affected Lenders has been obtained, and for all other relevant purposes under Section 10.01; and
(ivvii) subject to paragraph sub-clauses (i), (ii), (iv), (v) and (vi) above, the general terms of that Additional Facility shall be consistent in all material respects with the terms of this Agreement.
(bj) An increase in the Total Commitments pursuant The Borrowers may pay to an Additional Facility will only be effective on:
(i) the execution by the Facility Agent of an Additional Facility Accession Agreement which has been duly executed by each other relevant party thereto; and
(ii) in relation to an Initial any Additional Facility Lender which is not a Lender immediately prior to fee in the relevant Additional Facility becoming effective:
(A) amount and at the Initial Additional Facility Lender entering into times agreed between the documentation required for it to accede to the Intercreditor Agreement; and
(B) the performance by the Facility Agent of all necessary “know your client” or other similar checks under all applicable laws Borrower and regulations in relation to the Additional Facility Commitments, the completion of which the Facility Agent shall promptly notify 63140965_9 to the Company, the Initial Additional Facility Lender and each L/C Bank.
(c) Subject to the conditions in this Clause 2.2 being met, from the relevant Additional Facility Commencement Date for an Additional Facility, the Initial Additional Facility Lenders for that Additional Facility shall make available the Additional Facility in a maximum aggregate amount not exceeding the aggregate Additional Facility Commitments in respect of that Additional Facility as set out in the relevant Additional Facility Accession Agreement subject to the terms of this Agreement.Lender. 95007600_2
(dk) Each Initial Additional Facility Lender shall become a party to this Agreement and be entitled to share in the Transaction Security Collateral in accordance with the terms of the this Agreement, any applicable Intercreditor Agreement and the Security Collateral Documents pari passu with the Lenders under the other Facilities Facilities; provided that the Company Additional Facility Borrowers and each Initial the relevant Additional Facility Lender in relation to an Additional Facility may agree that an Additional Facility shall be entitled to share shares in the Transaction Security Collateral on a junior basis to the Lenders under the other Facilities or which, if so agreed, shall not be entitled to share set out in the Transaction Security either in accordance with the terms of the relevant Additional Facility Joinder Agreement. In addition, each Additional Facility Lender shall be subject to any applicable Intercreditor Agreement or pursuant to ancillary enter into equivalent intercreditor arrangementsarrangements having a similar effect.
(el) Each party to this Agreement (other than each proposed Initial Additional Facility Lender, the Parent, the Company applicable Borrower and each proposed Additional Facility Borrower) irrevocably authorises authorizes and instructs the Facility Administrative Agent to execute on its behalf any Additional Facility Accession Joinder Agreement which has been duly completed and signed on behalf of each proposed Initial Additional Facility Lender, the Parent, the Company applicable Borrower and each proposed Additional Facility Borrower and each Obligor Loan Party agrees to be bound by such accessionjoinder.
(f) The execution by the Parent, the Company and the relevant Borrower of an Additional Facility Accession Agreement constitutes confirmation by each Guarantor that its obligations under Clause 21 (Guarantee and Indemnity) shall continue unaffected except that those obligations shall extend to the Total Commitments as increased by the addition of the relevant Lender’s Commitment and shall be owed to each Finance Party including the relevant Lender.
(g) The Company may pay to any Initial Additional Facility Lender a fee in the amount and at the times agreed between the Company and that Initial Additional Facility Lender.
(hm) On the Additional Facility Commencement Date:
(i) each Initial Additional Facility Lender party to that Additional Facility Accession Joinder Agreement, each other Finance Party and the Obligors Loan Parties shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had each Initial Additional Facility Lender been an Original Lendera Lender on the 2021 Amendment Effective Date or Effective Date, as applicable, with the rights and/or obligations assumed by it as a result of that accession and with the Commitment specified by it as its Additional Facility Commitment; and 63140965_9and
(ii) each Initial Additional Facility Lender shall become a party to this Agreement as an “Initial Additional Facility Lender”.
(in) [Reserved.]
(o) With the prior written consent of the CompanyBorrowers, the Facility Administrative Agent is authorised authorized and instructed to enter into such documentation as is reasonably required to amend this Agreement and any other Finance Loan Document (in accordance with the terms of this Clause 2.2Section 2.14) to reflect the terms of each Additional Facility without the consent of any Lender other than each applicable Initial Additional Facility Lender, including amendments as deemed necessary by the Administrative Agent in its reasonable judgment to effect any lien or payment subordination and associated rights of the applicable Lenders to the extent any Additional Facilities are to rank junior in right of security or payment or to address technical issues relating to funding and payments.
(p) This Section 2.14 shall supersede any provisions in Section 2.13 or Section 10.01 to the contrary.
(q) The facilities under which any Term Commitments or Revolving Credit Commitments have been made available may be increased by any amount (an “Increase”) which shall not exceed the Additional Facility Available Amount by the execution by any Lender or Additional Facility Lender of one or more Additional Facility Joinder Agreements or Increase Confirmations (under which the Maturity Date, Applicable Rate and any other economic terms applicable to the relevant Additional Facility Commitments are the same as those applicable to the existing Term Commitments or Revolving Credit Commitments, as applicable). Following any such Increase, references to Term Loans and Revolving Credit Loans, as applicable, and the Lenders in respect of the Term Loans and Revolving Credit Loans, as applicable, shall include Lenders and Loans made under any such Additional Facility Joinder Agreements or Increase Confirmations. In respect of any such Increase:
(i) (A) on the date of the proposed Increase, all representations and warranties to be made in a Request for Credit Extension in accordance with Section 4.03 shall be true and correct in all material respects (or, with respect to any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language, after giving effect to any qualification therein, in all respects) on and as of the date of the proposed Increase with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to any such representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language, after giving effect to any qualification therein, in 80 95007600_2 all respects) as of such earlier date, and (B) no Event of Default is continuing on such date or would occur after giving effect to the proposed advance; provided that, in connection with any such Increase the primary purpose of which is to finance a Limited Condition Transaction, the conditions set forth in Section 2.14(q)(i)(A) and (B) shall not be required to be satisfied (other than to the extent required by any Lender or Additional Facility Lender in respect of such Increase);
(ii) each party to this Agreement (other than the relevant Lender or Additional Facility Lender and the applicable Borrower) irrevocably authorizes and instructs the Administrative Agent to execute on its behalf any Additional Facility Joinder Agreement or Increase Confirmation which has been duly completed and signed on behalf of each Lender or proposed Additional Facility Lender, the applicable Borrower and each Loan Party agrees to be bound by such joinder; and
(iii) with the prior written consent of the Borrowers, the Administrative Agent is authorized and instructed to enter into such documentation as is reasonably required to amend this Agreement and any other Loan Document (in accordance with the terms of this Section 2.14) to reflect the terms of each Increase without the consent of any Lender other than each applicable Additional Facility Lender.
(jr) Clause 27.4 Upon any Additional Facility Commencement Date on which Revolving Credit Commitments in respect of an Additional Revolving Facility (Limitation the “Additional Revolving Credit Commitments”) are effected through an increase in the Revolving Credit Commitments with respect to any existing Facility (the “Original Revolving Credit Facility”) pursuant to this Section 2.14, (a) each of responsibility the Revolving Credit Lenders under such Facility shall assign to each of Existing the Additional Lenders under such Additional Revolving Facility (the “Additional Revolving Credit Lenders) ”), and each of the Additional Revolving Credit Lenders shall apply mutatis mutandis purchase from each of the Revolving Credit Lenders, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Additional Facility Commencement Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Credit Loans will be held by existing Revolving Credit Lenders and Additional Revolving Credit Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such Additional Revolving Credit Commitments to the Revolving Credit Commitments; provided that the Administrative Agent and the Company may agree to give effect to the foregoing provisions on or after the next Interest Payment Date with respect to any Revolving Credit Loans outstanding under the Original Revolving Credit Facility on the Additional Facility Commencement Date. The Administrative Agent and the Lenders hereby agree that the minimum borrowing and prepayment requirements in this Clause 2.2 in relation to any Initial Additional Facility Lender as if references in that Clause to:
(i) a “Transferor” were references to all the Lenders immediately prior Agreement shall not apply to the relevant Additional Facility becoming effective ;
(ii) transactions effected pursuant to the “New Lender” were references to that “Initial Additional Facility Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”immediately preceding sentence.
Appears in 1 contract
Additional Facilities. 33
(a) The Company may notify the Facility Agent by no less than 2 By at least two Business Days’ notice to the Administrative Agent (or such shorter period as the Administrative Agent shall agree), and pursuant to the terms and conditions in this Section 2.14 and in the applicable Additional Facility Joinder Agreement or Increase Confirmation, an Additional Facility or an Increase (as defined below) may be provided to any Loan Party in an aggregate principal amount not to exceed the Additional Facility Available Amount (as determined on the date of Incurrence thereof); provided that it wishes (i) on the date of the proposed Additional Facility Loan all representations and warranties to establish one be made in a Request for Credit Extension in accordance with Section 4.03 are true and correct in all material respects (or, with respect to any representation or more warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar 95007615_1 language, after giving effect to any qualification therein, in all respects) on and as of the date of the proposed Additional Facility Loan with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to any such representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language, after giving effect to any qualification therein, in all respects) as of such earlier date, and (ii) no Event of Default is continuing on such date or would occur after giving effect to the proposed advance; provided, further, that in connection with any Additional Facility the primary purpose of which is to finance a Limited Condition Transaction, the conditions set forth in the Section 2.14(a)(i) and (ii) shall not be required to be satisfied (other than to the extent required by the Additional Facility Lenders party thereto).
(b) Any person may become a Lender under this Agreement by delivering to the Administrative Agent an Additional Facility Joinder Agreement which must be duly executed by that person, the Administrative Agent, the applicable Borrower and the applicable Additional Borrower, if any. That person shall become a Lender on the date specified in the Additional Facility Joinder Agreement. Additional Facilities may be provided by delivery any existing Lender, but no existing Lender will have an obligation to make an Additional Facility Commitment nor will the applicable Borrower have any obligation to approach any existing Lender to provide any Additional Facility Commitment.
(c) Upon the relevant person becoming a Lender, the total of the Commitments under this Agreement shall be increased by the amount set out in the relevant Additional Facility Joinder Agreement as that Lender’s Additional Facility Commitment.
(d) Each Lender under an Additional Facility will grant to the applicable Borrower a term or revolving loan facility in the amount specified in the relevant Additional Facility Agent Joinder Agreement during the Additional Facility Availability Period specified in the Additional Facility Joinder Agreement, subject to the terms of this Agreement.
(e) No Additional Facility shall have the benefit of any guarantee unless the existing Lenders also share in such guarantee. The execution by the applicable Borrower, the Guarantors and the relevant Additional Borrower of the Additional Facility Joinder Agreement shall constitute confirmation by each Guarantor that its obligations under the Guaranty shall extend to the total of the Commitments as increased by the addition of the relevant Lender’s Commitment and shall be owed to each Secured Party including the relevant Lender but otherwise shall continue unaffected.
(f) The aggregate amount of all outstanding Additional Facility Loans under an Additional Facility shall not at any time exceed the relevant Total Additional Facility Commitments for that Additional Facility.
(g) The aggregate amount of the participations of a Lender in Additional Facility Loans under an Additional Facility shall not at any time exceed that Lender’s Additional Facility Commitment for that Additional Facility at that time.
(h) No Additional Facility shall have the benefit of any security unless the existing Lenders also share in such security (except in the case of a security interest in any Escrow Account during the escrow period applicable to such Additional Facility); provided that the Additional Facility Borrowers and the relevant Additional Facility Lender may agree that an Additional Facility shares in the Collateral on a junior basis to the other Facilities. The effectiveness of an Additional Facility Accession Agreement duly completed and executed by a Lender (or shall be subject to customary reaffirmation in respect of any person that is not a Lender that proposes to become a Lender under that Additional Facility), the Parent, the Company Collateral Documents and, if to the Additional Facility is extent reasonably requested by the Administrative Agent, delivery of a written opinion of counsel to be granted the Loan Parties in form and substance reasonably satisfactory to an Additional Borrower, the relevant Additional Borrower, provided, Administrative Agent.
(i) in respect of each Additional Facility, that:
(i) other than in relation to a Limited Condition Transaction, no Event of Default is continuing or would result from each Additional Facility Borrower for that Additional Facility being establishedis a Loan Party;
(ii) the principal amount (in euro, US Dollars or an Additional Currency)amount, interest rate, interest periods, Termination Latest Maturity Date, use of proceeds, repayment schedule, availability, fees, incorporation of relevant clauses relating to, or in connection with 95007615_1 with, any Additional Facility and related provisions provisions, and the currency (which must be euros, US Dollars or an Additional Currency) of that Additional Facility shall be agreed by the relevant Additional Facility Borrowers and the relevant Initial Additional Facility Lenders (and, in the case of currency and incorporation of the relevant clauses relating to, or in connection with, any Additional Facility which is a revolving facility, the Facility Administrative Agent) and set out in the relevant Additional Facility AccessionJoinder Agreement;
(iii) the relevant Additional Facility Accession Joinder Agreement shall specify whether that Additional Facility is in form of a term loan or a revolving facilityloan;
(iv) notwithstanding anything to the contrary in this Agreement, (A) any Additional Revolving Facility may provide for the ability on a voluntary basis to permanently repay and terminate or reduce any Revolving Credit Commitments on a pro rata basis, less than or greater than a pro rata basis with other outstanding revolving Facilities hereunder and (B) any Additional Facility Loan in the form of a term loan may participate on a pro rata basis, less than or greater than a pro rata basis in any voluntary or mandatory prepayments of the Term Loans;
(v) [Reserved];
(vi) each Additional Facility Joinder Agreement may provide for the consent of the Additional Facility Lenders under the applicable Additional Facility (including any Increase in respect thereof) to one or more amendments to this Agreement, the other Loan Documents and the Proceeds Loan Finance Documents (in addition to those amendments contemplated by this Section 2.14(i)(vi)), and each party to this Agreement acknowledges and agrees that such consent shall be binding on all Additional Facility Lenders in respect of such Additional Facility and shall be counted for purposes of the definition of determining whether the consent of the Required Lenders, Required Class Lenders and affected Lenders has been obtained, and for all other relevant purposes under Section 10.01; and
(ivvii) subject to paragraph sub-clauses (i), (ii), (iv) and (vi) above, the general terms of that Additional Facility shall be consistent in all material respects with the terms of this Agreement.
(bj) An increase in the Total Commitments pursuant The Borrowers may pay to an Additional Facility will only be effective on:
(i) the execution by the Facility Agent of an Additional Facility Accession Agreement which has been duly executed by each other relevant party thereto; and
(ii) in relation to an Initial any Additional Facility Lender which is not a Lender immediately prior to fee in the relevant amount and at the times agreed between the applicable Borrower and that Additional Facility becoming effective:
(A) the Initial Additional Facility Lender entering into the documentation required for it to accede to the Intercreditor Agreement; and
(B) the performance by the Facility Agent of all necessary “know your client” or other similar checks under all applicable laws and regulations in relation to the Additional Facility Commitments, the completion of which the Facility Agent shall promptly notify 63140965_9 to the Company, the Initial Additional Facility Lender and each L/C BankLender.
(c) Subject to the conditions in this Clause 2.2 being met, from the relevant Additional Facility Commencement Date for an Additional Facility, the Initial Additional Facility Lenders for that Additional Facility shall make available the Additional Facility in a maximum aggregate amount not exceeding the aggregate Additional Facility Commitments in respect of that Additional Facility as set out in the relevant Additional Facility Accession Agreement subject to the terms of this Agreement.
(dk) Each Initial Additional Facility Lender shall become a party to this Agreement and be entitled to share in the Transaction Security Collateral in accordance with this Agreement, any applicable Collateral Sharing Agreement (prior to the terms of the SPV Structure Termination Date), any applicable Intercreditor Agreement (on or after the SPV Structure Termination Date) and the Security Collateral Documents pari passu with the Lenders under the other Facilities Facilities; provided that the Company Additional Facility Borrowers and each Initial the relevant Additional Facility Lender in relation to an Additional Facility may agree that an Additional Facility shall be entitled to share shares in the Transaction Security Collateral on a junior basis to the Lenders under the other Facilities or which, if so agreed, shall not be entitled to share set out in the Transaction Security either in accordance with relevant Additional Facility Joinder Agreement. In addition, each Additional Facility Lender shall be subject to any applicable Collateral Sharing Agreement (prior to the terms of the SPV Structure Termination Date), any applicable Intercreditor Agreement (on or pursuant to ancillary after the SPV Structure Termination Date) or enter into equivalent collateral sharing or intercreditor arrangementsarrangements having a similar effect.
(el) Each party to this Agreement (other than each proposed Initial Additional Facility Lender, the Parent, the Company applicable Borrower and each proposed Additional Facility Borrower) irrevocably authorises authorizes and instructs the Facility Administrative Agent to execute on its behalf any Additional Facility Accession Joinder Agreement which has been duly completed and signed on behalf of each proposed Initial Additional Facility Lender, the Parent, the Company applicable Borrower and each proposed Additional Facility Borrower and each Obligor Loan Party agrees to be bound by such accessionjoinder.
(f) The execution by the Parent, the Company and the relevant Borrower of an Additional Facility Accession Agreement constitutes confirmation by each Guarantor that its obligations under Clause 21 (Guarantee and Indemnity) shall continue unaffected except that those obligations shall extend to the Total Commitments as increased by the addition of the relevant Lender’s Commitment and shall be owed to each Finance Party including the relevant Lender.
(g) The Company may pay to any Initial Additional Facility Lender a fee in the amount and at the times agreed between the Company and that Initial Additional Facility Lender.
(hm) On the Additional Facility Commencement Date:
(i) each Initial Additional Facility Lender party to that Additional Facility Accession Joinder Agreement, each other Finance Party and the Obligors Loan Parties shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had each Initial Additional Facility Lender been an Original Lendera Lender on the 2021 Amendment Effective Date or Effective Date, as applicable, with the rights and/or obligations assumed by it as a result of that accession and with the Commitment specified by it as its Additional Facility Commitment; and 63140965_995007615_1
(ii) each Initial Additional Facility Lender shall become a party to this Agreement as an “Initial Additional Facility Lender”.
(in) [Reserved.]
(o) With the prior written consent of the CompanyBorrowers, the Facility Administrative Agent is authorised authorized and instructed to enter into such documentation as is reasonably required to amend this Agreement Agreement, any other Loan Document and any other Proceeds Loan Finance Document (in accordance with the terms of this Clause 2.2Section 2.14) to reflect the terms of each Additional Facility without the consent of any Lender other than each applicable Initial Additional Facility Lender, including amendments as deemed necessary by the Administrative Agent in its reasonable judgment to effect any lien or payment subordination and associated rights of the applicable Lenders to the extent any Additional Facilities are to rank junior in right of security or payment or to address technical issues relating to funding and payments.
(p) This Section 2.14 shall supersede any provisions in Section 2.13 or Section 10.01 to the contrary.
(q) The facilities under which any Term Commitments or Revolving Credit Commitments have been made available may be increased by any amount (an “Increase”) which shall not exceed the Additional Facility Available Amount by the execution by any Lender or Additional Facility Lender of one or more Additional Facility Joinder Agreements or Increase Confirmations (under which the Maturity Date, Applicable Rate and any other economic terms applicable to the relevant Additional Facility Commitments are the same as those applicable to the existing Term Commitments or Revolving Credit Commitments, as applicable). Following any such Increase, references to Term Loans and Revolving Credit Loans, as applicable, and the Lenders in respect of the Term Loans and Revolving Credit Loans, as applicable, shall include Lenders and Loans made under any such Additional Facility Joinder Agreements or Increase Confirmations. In respect of any such Increase:
(i) (A) on the date of the proposed Increase, all representations and warranties to be made in a Request for Credit Extension in accordance with Section 4.03 shall be true and correct in all material respects (or, with respect to any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language, after giving effect to any qualification therein, in all respects) on and as of the date of the proposed Increase with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to any such representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language, after giving effect to any qualification therein, in all respects) as of such earlier date, and (B) no Event of Default is continuing on such date or would occur after giving effect to the proposed advance; provided that, in connection with any such Increase the primary purpose of which is to finance a Limited Condition Transaction, the conditions set forth in Section 2.14(q)(i)(A) and (B) shall not be required to be satisfied (other than to the extent required by any Lender or Additional Facility Lender in respect of such Increase);
(ii) each party to this Agreement (other than the relevant Lender or Additional Facility Lender and the applicable Borrower) irrevocably authorizes and instructs the Administrative Agent to execute on its behalf any Additional Facility Joinder Agreement or Increase Confirmation which has been duly completed and signed on behalf of each Lender or proposed Additional Facility Lender, the applicable Borrower and each Loan Party agrees to be bound by such joinder; and
(iii) with the prior written consent of the Borrowers, the Administrative Agent is authorized and instructed to enter into such documentation as is reasonably required to amend this Agreement, any other Loan Document and any Proceeds Loan Finance Document (in accordance with the terms of this Section 2.14) to reflect the terms of each Increase without the consent of any Lender other than each applicable Additional Facility Lender.
(jr) Clause 27.4 Upon any Additional Facility Commencement Date on which Revolving Credit Commitments in respect of an Additional Revolving Facility (Limitation the “Additional Revolving Credit Commitments”) are effected through an increase in the Revolving Credit Commitments with respect to any existing Facility (the “Original Revolving Credit Facility”) pursuant to this Section 2.14, (a) each of responsibility the Revolving Credit Lenders under such 95007615_1 Facility shall assign to each of Existing the Additional Lenders under such Additional Revolving Facility (the “Additional Revolving Credit Lenders) ”), and each of the Additional Revolving Credit Lenders shall apply mutatis mutandis purchase from each of the Revolving Credit Lenders, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Additional Facility Commencement Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Credit Loans will be held by existing Revolving Credit Lenders and Additional Revolving Credit Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such Additional Revolving Credit Commitments to the Revolving Credit Commitments; provided that the Administrative Agent and the Company may agree to give effect to the foregoing provisions on or after the next Interest Payment Date with respect to any Revolving Credit Loans outstanding under the Original Revolving Credit Facility on the Additional Facility Commencement Date. The Administrative Agent and the Lenders hereby agree that the minimum borrowing and prepayment requirements in this Clause 2.2 in relation to any Initial Additional Facility Lender as if references in that Clause to:
(i) a “Transferor” were references to all the Lenders immediately prior Agreement shall not apply to the relevant Additional Facility becoming effective ;
(ii) transactions effected pursuant to the “New Lender” were references to that “Initial Additional Facility Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”immediately preceding sentence.
Appears in 1 contract
Samples: Additional Facility Joinder Agreement (Liberty Latin America Ltd.)
Additional Facilities. 33
(a) The Company execution by the Parent and any Additional Facility Borrower of an Additional Facility Accession Deed constitutes confirmation by each Guarantor that its obligations under Clause 30 (Guarantee and Indemnity) shall continue unaffected except that those obligations shall extend to the Total Commitments as increased by the addition of the relevant Lender’s Commitment and shall be owed to each Finance Party including the relevant Lender.
(b) The Parent may notify the Facility Agent by no less than 2 Business Days’ Days notice that it wishes to establish one or more additional facilities (each an “Additional Facilities Facility”) by delivery to the Facility Agent of an a duly completed Additional Facility Accession Agreement Deed, duly completed and executed by a Lender (or any person that is not a Lender that proposes to become a Lender under that Additional Facility), the Parent, the Company and, if each Additional Facility Lender for the Additional Facility is to be granted to an and each Additional Borrower, Facility Borrower for the relevant Additional BorrowerFacility, provided, in respect of each Additional Facility, that:
(i) other than in relation to a Limited Condition Transactionno Event of Default is continuing;
(ii) the terms of that Additional Facility provide that no Utilisation may be made if, no at the time of such Utilisation, an Event of Default is continuing or would result from such Utilisation;
(iii) it shall be a condition to any Utilisation of any Additional Facility that the Parent shall certify in the relevant Utilisation Request that the ratio of Senior Net Debt to Annualised EBITDA shall be no greater than 4.50:1 on a pro forma basis (taking into account such drawing and the use of proceeds of such drawing);
(iv) each Additional Facility Borrower for that Additional Facility being establishedis an Obligor;
(iiv) the principal amount (in euro, US Dollars or an Additional Currency)amount, interest rate, interest periods, Termination Final Maturity Date, use of proceeds, repayment schedule, availability, fees, incorporation of relevant clauses relating to, or in connection with with, any Additional Facility which is a revolving facility and related provisions and the currency (which must be euros, US Dollars or an Additional Currency) of that Additional Facility shall be agreed by the relevant Additional Facility Borrowers and the relevant Initial Additional Facility Lenders (and, in the case of currency and incorporation of the relevant clauses relating to, or in connection with, any Additional Facility which is a revolving facility, the Facility Agent) and set out in the relevant Additional Facility AccessionAccession Deed;
(iiivi) the relevant Additional Facility Accession Agreement Deed shall specify whether that Additional Facility is in form of a term loan or a revolving facilityloan; and
(ivvii) subject to paragraph (iiiv) above, the general terms of that Additional Facility shall be consistent in all material respects with the terms of this Agreement.
(bc) An increase in the Total Commitments pursuant to an Additional Facility under this Clause 2.4 (Additional Facilities) will only be effective on:
(i) the execution by the Facility Agent of an Additional Facility Accession Agreement Deed which has been duly executed by each other relevant party thereto; and
(ii) in relation to an Initial Additional Facility Lender which is not a Lender immediately prior to the relevant Additional Facility becoming effective:
(A) the Initial Additional Facility Lender entering into the documentation required for it to accede as a party to the Intercreditor AgreementAgreement and the Loss Sharing Deed; and
(B) the performance by the Facility Agent of all necessary “know your client” or other similar checks under all applicable laws and regulations in relation to the Additional Facility Commitments, the completion of which the Facility Agent shall promptly notify 63140965_9 to the Company, Parent and the Initial Additional Facility Lender and each L/C BankLender.
(cd) Subject to the conditions in this Clause 2.2 2.4 (Additional Facilities) being met, from the relevant Additional Facility Commencement Date for an Additional Facility, the Initial Additional Facility Lenders for that Additional Facility shall make available the Additional Facility in a maximum aggregate amount not exceeding the aggregate Additional Facility Commitments in respect of that Additional Facility as set out in the relevant Additional Facility Accession Agreement subject to the terms of this AgreementDeed.
(de) Each Initial Additional Facility Lender, by executing an Additional Facility Accession Deed, confirms (for the avoidance of doubt) that the Facility Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the Additional Facility becomes effective.
(f) The Parent may pay to any Additional Facility Lender a fee in the amount and at the times agreed between the Parent and that Additional Facility Lender.
(g) Each Additional Facility Lender shall become a party to this Agreement and be entitled to share in the Transaction Security in accordance with the terms of the Intercreditor Agreement and the Security Documents pari passu with the Lenders under the other Facilities provided that the Company Additional Facility Borrowers and each Initial the relevant Additional Facility Lender in relation to an Additional Facility may agree that an Additional Facility shall be entitled to share shares in the Transaction Security on a junior basis to the Lenders under the other Facilities or which, if so agreed, shall not be entitled to share set out in the Transaction Security either in accordance with the terms of the Intercreditor Agreement or pursuant to ancillary intercreditor arrangementsrelevant Additional Facility Accession Deed.
(eh) Each party to this Agreement (other than each proposed Initial Additional Facility Lender, the Parent, the Company Parent and each proposed Additional Facility Borrower) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Additional Facility Accession Agreement Deed which has been duly completed and signed on behalf of each proposed Initial Additional Facility Lender, the Parent, the Company Parent and each proposed Additional Facility Borrower and each Obligor agrees to be bound by such accession.
(f) The execution by the Parent, the Company and the relevant Borrower of an Additional Facility Accession Agreement constitutes confirmation by each Guarantor that its obligations under Clause 21 (Guarantee and Indemnity) shall continue unaffected except that those obligations shall extend to the Total Commitments as increased by the addition of the relevant Lender’s Commitment and shall be owed to each Finance Party including the relevant Lender.
(g) The Company may pay to any Initial Additional Facility Lender a fee in the amount and at the times agreed between the Company and that Initial Additional Facility Lender.
(hi) On the Additional Facility Commencement Date:
(i) each Initial Additional Facility Lender party to that Additional Facility Accession AgreementDeed, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had each Initial Additional Facility Lender been an Original Lender, with the rights and/or obligations assumed by it as a result of that accession and with the Commitment specified by it as its Additional Facility Commitment; and 63140965_9and
(ii) each Initial Additional Facility Lender shall become a party to this Agreement as an “Initial Additional Facility Lender”.
(ij) With the prior written consent of the CompanyParent, the Facility Agent is authorised and instructed to enter into such documentation as is reasonably required to amend this Agreement and any other Finance Document (in accordance with the terms of this Clause 2.22.4 (Additional Facilities)) to reflect the terms of each Additional Facility without the consent of any Lender other than each applicable Initial Additional Facility Lender.
(jk) Clause 27.4 26.6 (Limitation of responsibility Responsibility of Existing LendersTransferor) shall apply mutatis mutandis in this Clause 2.2 2.4 (Additional Facilities) in relation to any Initial Additional Facility Lender as if references in that Clause to:
(i) a “Transferor” were references to all the Lenders immediately prior to the relevant Additional Facility becoming effective ;
(ii) the “New Lender” were references to that “Initial Additional Facility Lender”; and
(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
Appears in 1 contract
Additional Facilities. 33
(a) The Company may notify the Facility Agent by no less than 2 By at least two Business Days’ notice to the Administrative Agent (or such shorter period as the Administrative Agent shall agree), and pursuant to the terms and conditions in this Section 2.14 and in the applicable Additional Facility Joinder Agreement or Increase Confirmation, an Additional Facility or an Increase (as defined below) may be provided to any Loan Party in an aggregate principal amount not to exceed the Additional Facility Available Amount (as determined on the date of Incurrence thereof); provided that it wishes (i) on the date of the proposed Additional Facility Loan all representations and warranties to establish one be made in a Request for Credit Extension in accordance with Section 4.03 are true and correct in all material respects (or, with respect to any representation or more warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language, after giving effect to any qualification therein, in all respects) on and as of the date of the proposed Additional Facility Loan with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to any such representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language, after giving effect to any qualification therein, in all respects) as of such earlier date, and (ii) no Event of Default is continuing on such date or would occur after giving effect to the proposed advance; provided, further, that in connection with any Additional Facility the primary purpose of which is to finance a Limited Condition Transaction, the conditions set forth in Section 2.14(a)(i) and (ii) shall not be required to be satisfied (other than to the extent required by the Additional Facility Lenders party thereto).
(b) Any person may become a Lender under this Agreement by delivering to the Administrative Agent an Additional Facility Joinder Agreement which must be duly executed by that person, the Administrative Agent, the applicable Borrower and the applicable Additional Borrower, if any. That person shall become a Lender on the date specified in the Additional Facility Joinder Agreement. Additional Facilities may be provided by delivery any existing Lender, but no existing Lender will have an obligation to make an Additional Facility Commitment nor will the applicable Borrower have any obligation to approach any existing Lender to provide any Additional Facility Commitment.
(c) Upon the relevant person becoming a Lender, the total of the Commitments under this Agreement shall be increased by the amount set out in the relevant Additional Facility Joinder Agreement as that Lender’s Additional Facility Commitment.
(d) Each Lender under an Additional Facility will grant to the applicable Borrower a term or revolving loan facility in the amount specified in the relevant Additional Facility Agent Joinder Agreement during the Additional Facility Availability Period specified in the Additional Facility Joinder Agreement, subject to the terms of this Agreement.
(e) No Additional Facility shall have the benefit of any guarantee unless the existing Lenders also share in such guarantee. The execution by the applicable Borrower, the Guarantors and the relevant Additional Borrower of the Additional Facility Joinder Agreement shall constitute confirmation by each Guarantor that its obligations under the Guaranty shall extend to the total of the Commitments as increased by the addition of the relevant Lender’s Commitment and shall be owed to each Secured Party including the relevant Lender but otherwise shall continue unaffected.
(f) The aggregate amount of all outstanding Additional Facility Loans under an Additional Facility shall not at any time exceed the relevant Total Additional Facility Commitments for that Additional Facility.
(g) The aggregate amount of the participations of a Lender in Additional Facility Loans under an Additional Facility shall not at any time exceed that Lender’s Additional Facility Commitment for that Additional Facility at that time.
(h) No Additional Facility shall have the benefit of any security unless the existing Lenders also share in such security (except in the case of a security interest in any Escrow Account relating to an Additional Facility during the escrow period applicable to such Additional Facility); provided that the Additional Facility Borrowers and the relevant Additional Facility Lender may agree that an Additional Facility shares in the Collateral on a junior basis to the other Facilities. The effectiveness of an Additional Facility Accession Agreement duly completed and executed by a Lender (or shall be subject to customary reaffirmation in respect of any person that is not a Lender that proposes to become a Lender under that Additional Facility), the Parent, the Company Collateral Documents and, if to the Additional Facility is extent reasonably requested by the Administrative Agent, delivery of a written opinion of counsel to be granted the Loan Parties in form and substance reasonably satisfactory to an Additional Borrower, the relevant Additional Borrower, provided, Administrative Agent.
(i) in respect of each Additional Facility, that:
(i) other than in relation to a Limited Condition Transaction, no Event of Default is continuing or would result from each Additional Facility Borrower for that Additional Facility being establishedis a Loan Party;
(ii) the principal amount (in euro, US Dollars or an Additional Currency)amount, interest rate, interest periods, Termination Latest Maturity Date, use of proceeds, repayment schedule, availability, fees, incorporation of relevant clauses relating to, or in connection with with, any Additional Facility and related provisions provisions, and the currency (which must be euros, US Dollars or an Additional Currency) of that Additional Facility shall be agreed by the relevant Additional Facility Borrowers and the relevant Initial Additional Facility Lenders (and, in the case of currency and incorporation of the relevant clauses relating to, or in connection with, any Additional Facility which is a revolving facility, the Facility Administrative Agent) and set out in the relevant Additional Facility AccessionJoinder Agreement;
(iii) the relevant Additional Facility Accession Joinder Agreement shall specify whether that Additional Facility is in form of a term loan or a revolving facilityloan;
(iv) notwithstanding anything to the contrary in this Agreement, (A) any Additional Revolving Facility may provide for the ability on a voluntary basis to permanently repay and terminate or reduce any Revolving Credit Commitments on a pro rata basis, less than or greater than a pro rata basis with other outstanding revolving Facilities hereunder and (B) any Additional Facility Loan in the form of a term loan may participate on a pro rata basis, less than or greater than a pro rata basis in any voluntary prepayments of the Term Loans hereunder under other outstanding Classes of Term Loans, and on a pro rata basis or less than a pro rata basis in any mandatory prepayments of the Term Loans hereunder under other outstanding Classes of Term Loans;
(v) the Revolving Credit Commitments in respect of any Additional Revolving Facility may, at the election of the Company, be designated as Financial Covenant Revolving Credit Commitments;
(vi) each Additional Facility Joinder Agreement may provide for the consent of the Additional Facility Lenders under the applicable Additional Facility (including any Increase in respect thereof) to one or more amendments to this Agreement and the other Loan Documents (in addition to those amendments contemplated by Section 2.14(o)), and each party to this Agreement acknowledges and agrees that such consent shall be binding on all Additional Facility Lenders in respect of such Additional Facility and shall be counted for purposes of the definition of determining whether the consent of the Required Lenders, Required Class Lenders, Required Revolving Credit Lenders and affected Lenders has been obtained, and for all other relevant purposes under Section 10.01; and
(ivvii) subject to paragraph sub-clauses (i), (ii), (iv), (v) and (vi) above, the general terms of that Additional Facility shall be consistent in all material respects with the terms of this Agreement.
(bj) An increase in the Total Commitments pursuant The Borrowers may pay to an Additional Facility will only be effective on:
(i) the execution by the Facility Agent of an Additional Facility Accession Agreement which has been duly executed by each other relevant party thereto; and
(ii) in relation to an Initial any Additional Facility Lender which is not a Lender immediately prior to fee in the relevant amount and at the times agreed between the applicable Borrower and that Additional Facility becoming effective:
(A) the Initial Additional Facility Lender entering into the documentation required for it to accede to the Intercreditor Agreement; and
(B) the performance by the Facility Agent of all necessary “know your client” or other similar checks under all applicable laws and regulations in relation to the Additional Facility Commitments, the completion of which the Facility Agent shall promptly notify 63140965_9 to the Company, the Initial Additional Facility Lender and each L/C BankLender.
(c) Subject to the conditions in this Clause 2.2 being met, from the relevant Additional Facility Commencement Date for an Additional Facility, the Initial Additional Facility Lenders for that Additional Facility shall make available the Additional Facility in a maximum aggregate amount not exceeding the aggregate Additional Facility Commitments in respect of that Additional Facility as set out in the relevant Additional Facility Accession Agreement subject to the terms of this Agreement.
(dk) Each Initial Additional Facility Lender shall become a party to this Agreement and be entitled to share in the Transaction Security Collateral in accordance with the terms of the this Agreement, any applicable Intercreditor Agreement and the Security Collateral Documents pari passu with the Lenders under the other Facilities Facilities; provided that the Company Additional Facility Borrowers and each Initial the relevant Additional Facility Lender in relation to an Additional Facility may agree that an Additional Facility shall be entitled to share shares in the Transaction Security Collateral on a junior basis to the Lenders under the other Facilities or which, if so agreed, shall not be entitled to share set out in the Transaction Security either in accordance with the terms of the relevant Additional Facility Joinder Agreement. In addition, each Additional Facility Lender shall be subject to any applicable Intercreditor Agreement or pursuant to ancillary enter into equivalent intercreditor arrangementsarrangements having a similar effect.
(el) Each party to this Agreement (other than each proposed Initial Additional Facility Lender, the Parent, the Company applicable Borrower and each proposed Additional Facility Borrower) irrevocably authorises authorizes and instructs the Facility Administrative Agent to execute on its behalf any Additional Facility Accession Joinder Agreement which has been duly completed and signed on behalf of each proposed Initial Additional Facility Lender, the Parent, the Company applicable Borrower and each proposed Additional Facility Borrower and each Obligor Loan Party agrees to be bound by such accessionjoinder.
(f) The execution by the Parent, the Company and the relevant Borrower of an Additional Facility Accession Agreement constitutes confirmation by each Guarantor that its obligations under Clause 21 (Guarantee and Indemnity) shall continue unaffected except that those obligations shall extend to the Total Commitments as increased by the addition of the relevant Lender’s Commitment and shall be owed to each Finance Party including the relevant Lender.
(g) The Company may pay to any Initial Additional Facility Lender a fee in the amount and at the times agreed between the Company and that Initial Additional Facility Lender.
(hm) On the Additional Facility Commencement Date:
(i) each Initial Additional Facility Lender party to that Additional Facility Accession Joinder Agreement, each other Finance Party and the Obligors Loan Parties shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had each Initial Additional Facility Lender been an Original Lendera Lender on the Amendment Effective Date, with the rights and/or obligations assumed by it as a result of that accession and with the Commitment specified by it as its Additional Facility Commitment; and 63140965_9and
(ii) each Initial Additional Facility Lender shall become a party to this Agreement as an “Initial Additional Facility Lender”.
(in) [Reserved.]
(o) With the prior written consent of the Company, the Facility Administrative Agent is authorised authorized and instructed to enter into such documentation as is reasonably required to amend this Agreement and any other Finance Loan Document (in accordance with the terms of this Clause 2.2Section 2.14) to reflect the terms of each Additional Facility without the consent of any Lender other than each applicable Initial Additional Facility Lender, including amendments as deemed necessary by the Administrative Agent in its reasonable judgment to effect any lien or payment subordination and associated rights of the applicable Lenders to the extent any Additional Facilities are to rank junior in right of security or payment or to address technical issues relating to funding and payments.
(jp) Clause 27.4 This Section 2.14 shall supersede any provisions in Section 2.13 or Section 10.01 to the contrary.
(Limitation of responsibility of Existing Lendersq) The facilities under which any Term Commitments or Revolving Credit Commitments have been made available may be increased by any amount (an “Increase”) which shall apply mutatis mutandis in this Clause 2.2 in relation to not exceed the Additional Facility Available Amount by the execution by any Initial Lender or Additional Facility Lender as if references in that Clause to:
of one or more Additional Facility Joinder Agreements or Increase Confirmations (i) a “Transferor” were references to all under which the Lenders immediately prior Maturity Date, Applicable Rate and any other economic terms applicable to the relevant Additional Facility becoming effective ;
(ii) Commitments are the “New Lender” were same as those applicable to the existing Term Commitments or Revolving Credit Commitments, as applicable). Following any such Increase, references to that “Initial Term Loans and Revolving Credit Loans, as applicable, and the Lenders in respect of the Term Loans and Revolving Credit Loans, as applicable, shall include Lenders and Loans made under any such Additional Facility LenderJoinder Agreements or Increase Confirmations. In respect of any such Increase: (i) (A) on the date of the proposed Increase, all representations and warranties to be made in a Request for Credit Extension in accordance with Section 4.03 shall be true and correct in all material respects (or, with respect to any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language, after giving effect to any qualification therein, in all respects) on and as of the date of the proposed Increase with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to any such representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language, after giving effect to any qualification therein, in all respects) as of such earlier date, and (B) no Event of Default is continuing on such date or would occur after giving effect to the proposed advance; and
provided that, in connection with any such Increase the primary purpose of which is to finance a Limited Condition Transaction, the conditions set forth in this Section 2.14(q)(i) and foregoing clauses (iiiA) a “re-transfer” and “re-assignment” were references (B) shall not be required to respectively a “transfer” and “assignment”.be satisfied (other than to the extent required by any Lender or Additional Facility Lender in respect of such Increase);
Appears in 1 contract
Samples: Additional Facility Joinder Agreement (Liberty Latin America Ltd.)
