Additional Facility. (a) The Company may notify the Facility Agent that it wishes to establish one or more additional term loan facilities (each an “Additional Facility”) by delivery to the Facility Agent of a duly completed Additional Facility Accession Agreement, duly executed by the Company, each Additional Facility Lender for the Additional Facility and the Additional Facility Borrower for the Additional Facility, provided that: (i) no Event of Default is continuing; (ii) the terms of the Additional Facility provide that no Utilisation may be made of such Additional Facility if, at the time of such Utilisation, an Event of Default is continuing or would result from such Utilisation; (iii) the Final Maturity Date applicable to the Additional Facility shall be no earlier than 3 September 2012 and there shall be no scheduled prior repayments required in relation to the Additional Facility; (iv) the Additional Facility Borrower for the Additional Facility is an existing Borrower; (v) the interest rate, fees and related provisions, tax gross-up provisions and indemnity provisions applicable to, and the currency of, the Additional Facility shall be agreed by the Additional Facility Borrower and the Additional Facility Lenders; provided that the Additional Facility Margin may not exceed the sum of: (A) the highest Applicable Margin payable on the B7 Facility, B8 Facility, B9 Facility, B10 Facility, B11 Facility or B12 Facility; and (B) 0.75% per annum; (vi) an amount equal to the Additional Facility Outstandings in relation to any drawing under such Additional Facility shall be applied by the Borrower in irrevocable repayment or prepayment of Outstandings in accordance with Clause 12.5(a)(iii) (Repayment from Debt Proceeds) and Clause 11.3 (Application of Repayments); and (vii) the terms of the Additional Facility shall be consistent in all material respects with the Term Facilities except to the extent of variations therefrom with respect to availability, interest period, conditions precedent, representations and warranties, utilisation mechanics, voluntary cancellation and voluntary prepayment, fees, costs and expenses, transfers and amendments and waivers, in each case which relate and (subject as provided below) apply exclusively to the Additional Facility and to the rights and obligations of the Additional Lenders under the Additional Facility (for the avoidance of doubt, however, a breach of any term thereof shall be subject to Clause 27 (Events of Default) for all purposes hereunder, and the Lenders in relation to the Facilities (other than the Additional Facility Lenders) shall have the rights thereof in relation thereto, and any amendments or waivers in relation thereto or to any such provision shall be subject to Clause 43 (Amendments), provided that the Additional Facilities may contain covenants in addition to those contained in Clause 23 (Financial Condition), Clause 24 (Positive Undertakings) and Clause 25 (Negative Undertakings), but such additional covenants shall also then apply, mutatis mutandis, to the other Term Facilities, and provided further that in all such cases no variation from the terms of the Facilities may be made where, if such variation were made by amendment to this Agreement (solely for the purposes of making such variation, without giving effect to the Sixth Amendment), such amendment would require the prior written consent of any Lender under Clause 43.4 (Consents), unless the consent of such Lender has been obtained in writing. (b) Each Additional Facility Accession Agreement shall set out details of the interest rate, principal amount and term of the proposed Additional Facility and confirm the requirements of paragraph (a) are fulfilled. Each Additional Facility Accession Agreement shall also specify the date upon which the Additional Facility is anticipated to be made available to the relevant Additional Facility Borrower (the “Additional Facility Commencement Date”). (c) Subject to the conditions in paragraphs (a) and (b) above being met, from the relevant Additional Facility Commencement Date for an Additional Facility, the 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. (d) Each Additional Facility Lender shall become a party to this Agreement (and be entitled to share in the Security in accordance with the terms of the Finance Documents on the same terms as the Facilities that are being repaid with the proceeds from the relevant Additional Facility) if the Facility Agent executes the relevant Additional Facility Accession Agreement. (e) Each party to this Agreement (other than each proposed Additional Facility Lender and the Company) 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 Additional Facility Lender, the Company and the Additional Facility Borrower, and the Parent and each Obligor agrees to be bound by such accession. (f) The Facility Agent shall only be obliged to execute an Additional Facility Accession Agreement delivered to it if: (i) the terms of its and the Security Trustee’s compensation and indemnities for any additional administrative or other requirements and costs under the Finance Documents arising in relation to the Additional Facility are satisfactory to it; and (ii) it is satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable law and regulations in relation to the accession of such Additional Facility Lender. (g) On the date that the Facility Agent executes an Additional Facility Accession Agreement: (i) each Additional Facility Lender party to that Additional Facility Accession Agreement, each other Finance Party, the Parent and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had each 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 (ii) each Additional Facility Lender shall become a party to this Agreement as an “Additional Facility Lender”. (h) The execution by the Company of an Additional Facility Accession Agreement constitutes confirmation by the Parent and each Guarantor that its obligations under Clause 29 (Guarantee and Indemnity) shall continue unaffected, except that those obligations shall extend to the Total Commitments as increased by the addition of each relevant Additional Facility Lender’s Commitment and shall be owed to each Finance Party including such Additional Facility Lender. (i) 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 2.9 (Additional Facility)) to reflect the terms of each Additional Facility.
Appears in 3 contracts
Samples: Senior Facilities Agreement (Virgin Media Inc.), Senior Facilities Agreement (Virgin Media Inc.), Senior Facilities Agreement (Virgin Media Inc.)
Additional Facility. (a) The Company may notify the Facility Agent by no less than 5 Business Days notice that it wishes to establish one or more additional term loan facilities (each an “Additional Facility”) by delivery to the Facility Agent of a duly completed Additional Facility Accession AgreementDeed, duly executed by the Company, each Additional Facility Lender for the Additional Facility and the each Additional Facility Borrower for the relevant Additional Facility, provided provided, in respect of each Additional Facility, that:
(i) no Event of Default is continuing;
(ii) the terms of the that Additional Facility provide that no Utilisation may be made of such Additional Facility if, at the time of such Utilisation, an Event of Default is continuing or would result from such Utilisation;
(iii) the Final Maturity Date applicable to the that Additional Facility shall be no earlier than 3 September 2012 and there 30 June 2015 and, in the event that such Additional Facility provides for any scheduled repayments prior to 30 June 2015, the weighted average life to maturity of such Additional Facility shall not be no scheduled prior repayments required in relation shorter than the weighted average life to maturity of any A Facility, A1 Facility or A2 Facility outstanding under this Agreement at the time of establishment of such Additional Facility;
(iv) the each Additional Facility Borrower for the that Additional Facility is an existing BorrowerObligor;
(v) the principal amount, interest rate, Final Maturity Date, use of proceeds, repayment schedule, availability, fees and related provisions, tax gross-up provisions and indemnity provisions applicable to, and the currency of, the of that Additional Facility shall be agreed by the relevant Additional Facility Borrower Borrowers and the relevant Additional Facility Lenders; provided that Lenders (and, in the case of currency, the Facility Agent) and set out in the relevant Additional Facility Margin may not exceed the sum of:
(A) the highest Applicable Margin payable on the B7 Facility, B8 Facility, B9 Facility, B10 Facility, B11 Facility or B12 Facility; and
(B) 0.75% per annumAccession Deed;
(vi) an amount equal with respect to the any Additional Facility Outstandings the proceeds of which are not applied in relation to any drawing under such Additional Facility shall be applied by the Borrower in irrevocable repayment or prepayment of Outstandings any of the Facilities or Existing Financial Indebtedness (in accordance with each case, in whole or in part), the Company can demonstrate that (A) the pro forma Leverage Ratio (giving effect to such incurrence and the use of proceeds thereof) on the Quarter Date prior to such incurrence (giving pro forma effect to any movement of cash out of the Bank Group since such date pursuant to Clause 12.5(a)(iii25.5 (Dividends, Distributions and Share Capital) and any Permitted Payments) would not exceed the Leverage Ratio required in order to incur any Financial Indebtedness pursuant to Clause 25.4(p) (Repayment from Debt ProceedsFinancial Indebtedness) and (B) the pro forma ratio of Consolidated Senior Net Debt (giving effect to such incurrence and the use of proceeds thereof and giving pro forma effect to any movement of cash out of the Bank Group since such date pursuant to Clause 11.3 25.5 (Application of Repayments); andDividends, Distributions and Share Capital) and any Permitted Payments) to Consolidated Operating Cashflow for the Quarter Date prior to such incurrence would not exceed the ratio set out in Clause 25.2(o) (Negative Pledge) for the Quarter Date following such incurrence;
(vii) the relevant Additional Facility Accession Deed shall specify whether that Additional Facility is in form of a term loan or a revolving loan, provided that an Additional Facility shall only be permitted to be established in the form of a revolving facility if the Revolving Facility Commitments at such time are equal to zero;
(viii) unless otherwise set out in the relevant Additional Facility Accession Deed, the general terms of the that Additional Facility shall be consistent in all material respects with the Term Facilities except to the extent terms of variations therefrom this Agreement including, without limitation, with respect to availabilityto, interest period, conditions precedent, tax gross-up provisions and indemnity provisions, representations and warranties, utilisation mechanics, voluntary cancellation and voluntary prepaymentprepayment (including the treatment of that Additional Facility under the prepayment waterfall), fees, costs and expenses, transfers and transfers, voting, amendments and waivers, financial and non-financial covenants and events of default; and
(ix) if any terms relating to prepayment, financial and non-financial covenants and events of default are proposed in each case which relate and (subject as provided below) apply exclusively to the relevant Additional Facility and Accession Deed to be substantially different from the rights and obligations terms of this Agreement, the Additional Lenders under the Additional Facility (for the avoidance of doubt, however, a breach of any term thereof shall be subject to Clause 27 (Events of Default) for all purposes hereunder, and the Lenders in relation to the Facilities terms (other than relating to dividends and restricted payments) shall give no independent rights to the relevant Additional Facility LendersLenders (as a separate class) shall have to accelerate (but without prejudice to their rights as part of the rights thereof Instructing Group under Clauses 27.17 (Acceleration) or 27.18 (Repayment on Demand)) provided that, unless otherwise indicated in relation theretothe relevant Additional Facility Accession Deed, and any amendments covenants or waivers in relation thereto or to any such provision shall be subject to Clause 43 (Amendments), provided that the Additional Facilities may contain covenants events of default in addition to those contained in Clause 23 (Financial Condition), Clause 24 (Positive Undertakings) and ), Clause 25 (Negative Undertakings), but such additional covenants ) and Clause 27 (Events of Default) shall also then apply, mutatis mutandis, to the other Term Facilities, and provided further that in all such cases no variation from the terms of the Facilities may be made where, if such variation were made by amendment to this Agreement (solely for the purposes of making such variation, without giving effect to the Sixth Amendment), such amendment would require the prior written consent of any Lender under Clause 43.4 (Consents), unless the consent of such Lender has been obtained in writing.
(b) Each Additional Facility Accession Agreement Deed shall set out details of the interest rate, principal amount and term of the proposed Additional Facility and confirm that the requirements of in paragraph (a) above are fulfilled. Each Additional Facility Accession Agreement fulfilled and shall also specify the date upon which the Additional Facility is anticipated to be made available to the relevant Additional Facility Borrower Borrowers (the “Additional Facility Commencement Date”).
(c) Subject to the conditions in paragraphs (a) and (b) above being met, from the relevant Additional Facility Commencement Date for an Additional Facility, the 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 FacilityFacility as set out in the relevant Additional Facility Accession Deed.
(d) Each Additional Facility Lender shall become a party to this Agreement (and be entitled to share in the Security in accordance with the terms of the Finance Group Intercreditor Agreement and the Security Documents on the same terms as the Facilities that are being repaid pari passu with the proceeds from other Facilities provided that the Additional Facility Borrowers and the relevant Additional Facility) Facility Lender may agree that an Additional Facility shares in the Security on a junior basis to the other Facilities which, if the Facility Agent executes so agreed, shall be set out in the relevant Additional Facility Accession AgreementDeed.
(e) Each party to this Agreement (other than each proposed Additional Facility Lender and the Company) 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 Additional Facility Lender, the Company and the each proposed Additional Facility Borrower, and the Parent and each Obligor agrees to be bound by such accession.
(f) The Facility Agent shall only be obliged to execute an Additional Facility Accession Agreement Deed delivered to it if:
(i) the terms of its and the Security Trustee’s compensation and indemnities for any additional administrative or other requirements and costs under the Relevant Finance Documents arising in relation to the relevant Additional Facility are satisfactory to it; and
(ii) it is satisfied that it has complied with all necessary “know your customerclient” or other similar checks under all applicable law and regulations in relation to the accession of such the relevant Additional Facility LenderLenders. For the avoidance of doubt, if any terms of an Additional Facility that affect the Facility Agent or L/C Bank in such capacity are different in any material respect from those applying under this Agreement on the Original Execution Date, such differences must be satisfactory to the Facility Agent and L/C Bank if it affects the Facility Agent or L/C Bank in any material and adverse respect.
(g) On the date that the Facility Agent executes an Additional Facility Accession AgreementDeed:
(i) each Additional Facility Lender party to that Additional Facility Accession AgreementDeed, each other Relevant Finance Party, the Parent and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had each Additional Facility Lender been an original 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
(ii) each Additional Facility Lender shall become a party to this Agreement as an “Additional Facility Lender”.
(h) The execution by the Company of an Additional Facility Accession Agreement Deed constitutes confirmation by the Parent and each Guarantor that its obligations under Clause 29 (Guarantee and Indemnity) shall continue unaffected, except that those obligations shall extend to the Total Commitments as increased by the addition of each relevant Additional Facility Lender’s Commitment and shall be owed to each Relevant Finance Party including such Additional Facility Lender.
(i) The Facility Agent is authorised and instructed to enter into such documentation as is reasonably required to amend this Agreement and any other Relevant Finance Document (in accordance with the terms of this Clause 2.9 (Additional Facility)2.6) to reflect the terms of each Additional FacilityFacility without the consent of any Lender other than the applicable Additional Facility Lender.
Appears in 2 contracts
Samples: Senior Facilities Agreement (VMWH LTD), Senior Facilities Agreement (Virgin Media Inc.)
Additional Facility. (a) The Subject to the terms of this Clause 2.3, the Company may notify may, with the prior consent of the Majority Noteholders, establish an Additional Facility under this Agreement by notice to the Agent that it wishes to establish one or more additional term loan facilities (each such notice, an “Additional FacilityFacility Notice”)
(b) by delivery to the The Additional Facility Agent of a Notice shall not be regarded as having been duly completed Additional Facility Accession Agreement, duly executed unless it is signed by each party thereto and specifies the Company, each Additional Facility Lender for the Additional Facility and the Additional Facility Borrower for the following matters in respect of such Additional Facility, provided that:
(i) no Event of Default is continuingthe Issuer for the Additional Facility;
(ii) the terms person(s) to become Additional Facility Noteholders in respect of the Additional Facility provide that no Utilisation may be made and the amount of the commitments of such Additional Facility if, at the time of such Utilisation, an Event of Default is continuing or would result from such Utilisation;allocated to each Additional Facility Noteholder; |EU-DOCS\34803319.2||
(iii) the Final Maturity Date applicable to aggregate amount of the commitments of the Additional Facility shall be no earlier than 3 September 2012 and there shall be no scheduled prior repayments required in relation to the currency being made available and any other or optional currency or currencies which are available for issuance under such Additional Facility;
(iv) the Additional Facility Borrower for Margin applicable to the Additional Facility is an existing BorrowerFacility;
(v) the interest rate, fees Establishment Date and related provisions, tax gross-up Availability Period for the Additional Facility; and
(vi) the Termination Date and amortisation scheduled (if any) and any mandatory redemption provisions and indemnity provisions applicable to, and the currency of, (including whether the Additional Facility will share rateably or less than rateably in mandatory redemptions).
(c) Nothing in this Clause 2.3 shall be agreed by oblige any Noteholder to provide any Additional Facility Commitment at any time.
(d) Subject to the terms of this Clause 2.3, the Company may exercise its rights to request commitments for Additional Facilities on as many occasions as it wishes during the life of the Facilities.
(e) No person may become a Noteholder in respect of an Additional Facility unless such person is a U.S. Exempt Noteholder.
(f) If the Additional Facility Borrower Noteholders in respect of any Additional Facility Commitment (acting reasonably) and the Company so agree, those Additional Facility Commitments shall be made available on a certain funds basis in connection with an acquisition not prohibited by this Agreement, for such period and on such terms as the Company and those Additional Facility Noteholders shall agree.
(g) The establishment of an Additional Facility will only be effective on:
(i) the execution of the Additional Facility Lenders; provided that the Notice relating to such Additional Facility Margin may not exceed by the sum ofCompany and/or the relevant Issuer(s) and the relevant Additional Facility Noteholder(s) and delivery of such executed notice to the Agent; and
(ii) in respect of each Acceding Noteholder:
(A) the highest Applicable Margin payable on performance by the B7 FacilityAgent of all necessary “know-your-customer” or similar checks under all applicable laws and regulations, B8 Facility, B9 Facility, B10 Facility, B11 Facility or B12 Facilitythe completion of which the Agent shall promptly notify to the Company; and
(B) 0.75% per annum;that Acceding Noteholder entering into an Additional Noteholder Accession Deed.
(vih) On the Establishment Date, the relevant Additional Facility shall come into effect and be established in accordance with its terms and:
(i) subject to the terms of this Agreement, the Additional Facility Noteholders make available to the relevant Issuer(s) a notes facility in an aggregate amount equal to the Additional Facility Outstandings Commitments specified in relation the Additional Facility Notice, and irrevocably agree to any drawing subscribe for the notes to be issued under such facility;
(ii) each of the Obligors and each Additional Facility Noteholder shall be applied by assume obligations towards one another and/or acquire rights against one another as the Borrower |EU-DOCS\34803319.2|| Obligors and that Additional Facility Noteholder would have assumed and/or acquired had that Additional Facility Noteholder been an Original Notes Purchaser with respect to the Additional Facility Commitment specified opposite its name in irrevocable repayment or prepayment the Additional Facility Notice;
(iii) each Additional Facility Noteholder and each of Outstandings the other Finance Parties shall assume obligations towards one another and acquire rights against one another as that Additional Facility Noteholder and those Finance Parties would have assumed and/or acquired had the Additional Facility Noteholder been an Original Notes Purchaser with respect to the Additional Facility Commitment specified opposite its name in accordance with Clause 12.5(a)(iiithe Additional Facility Notice;
(iv) (Repayment from Debt Proceeds) and Clause 11.3 (Application of Repayments)each Additional Facility Noteholder shall become a Party as a “Noteholder”; and
(viiv) the Commitments of the other Noteholders shall continue in full force and effect.
(i) Each Obligor confirms:
(i) the authority of the Company to agree, implement and establish the Additional Facility in accordance with this Agreement; and
(ii) that its guarantee and indemnity recorded in Clause 21 (Guarantee and Indemnity) (or any applicable Accession Deed or other Finance Document), and all Transaction Security granted by it will, subject only to any applicable limitation on such guarantee and indemnity referred to in Clause 21 (Guarantee and Indemnity) and any Accession Deed pursuant to which is became an Obligor or the terms of the Transaction Security Documents, extend to include the relevant Additional Facility Notes and any other obligations arising under or in respect of the relevant Additional Facility Commitments.
(j) Each Finance Party agrees and empowers:
(i) the Agent promptly (upon request of (and as reasonably requested by) the Company) to acknowledge, execute and confirm acceptance of each Additional Facility Notice; and
(ii) the Agent and the Collateral Agent at the cost of the Obligors (provided such costs are reasonably incurred) to (and the relevant Obligor shall promptly upon request by the Agent or the Collateral Agent in accordance with the Agreed Security Principles) execute any necessary amendments to the Transaction Security Documents and other Finance Documents (including this Agreement and the Intercreditor Agreement) as may be required in order to ensure that any Additional Facility Commitments are made available on the terms contemplated in this Clause 2.3 and the Additional Facility Notice.
(k) The Agent and/or the Collateral Agent shall as soon as reasonably practicable send to the Company a copy of each executed Additional Facility Notice and, if applicable, Additional Noteholder Accession Deed and if applicable, the documentation required for the Additional Facility Noteholder to accede to the Intercreditor Agreement.
(l) The terms applicable to any Additional Facility will be those agreed by the Additional Facility Noteholders in respect of that Additional Facility and the Company. If there is any |EU-DOCS\34803319.2|| inconsistency between any such term agreed in respect of an Additional Facility and any other term of a Finance Document, the term agreed in respect of the Additional Facility shall be consistent in all material respects with the Term Facilities except to the extent of variations therefrom prevail with respect to availability, interest period, conditions precedent, representations and warranties, utilisation mechanics, voluntary cancellation and voluntary prepayment, fees, costs and expenses, transfers and amendments and waivers, in each case which relate and (subject as provided below) apply exclusively to the Additional Facility and to the rights and obligations of the Additional Lenders under the Additional Facility (for the avoidance of doubt, however, a breach of any term thereof shall be subject to Clause 27 (Events of Default) for all purposes hereunder, and the Lenders in relation to the Facilities (other than the Additional Facility Lenders) shall have the rights thereof in relation thereto, and any amendments or waivers in relation thereto or to any such provision shall be subject to Clause 43 (Amendments), provided that the Additional Facilities may contain covenants in addition to those contained in Clause 23 (Financial Condition), Clause 24 (Positive Undertakings) and Clause 25 (Negative Undertakings), but such additional covenants shall also then apply, mutatis mutandis, to the other Term Facilities, and provided further that in all such cases no variation from the terms of the Facilities may be made where, if such variation were made by amendment to this Agreement (solely for the purposes of making such variation, without giving effect to the Sixth Amendment), such amendment would require the prior written consent of any Lender under Clause 43.4 (Consents), unless the consent of such Lender has been obtained in writing.
(b) Each Additional Facility Accession Agreement shall set out details of the interest rate, principal amount and term of the proposed Additional Facility and confirm the requirements of paragraph (a) are fulfilled. Each Additional Facility Accession Agreement shall also specify the date upon which the Additional Facility is anticipated to be made available to the relevant Additional Facility Borrower (the “Additional Facility Commencement Date”).
(c) Subject to the conditions in paragraphs (a) and (b) above being met, from the relevant Additional Facility Commencement Date for an Additional Facility, the 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.
(dm) Each Additional Facility Lender shall become a party to this Agreement (and be entitled to share in Noteholder by executing the Security in accordance with the terms of the Finance Documents on the same terms as the Facilities that are being repaid with the proceeds from the relevant Additional Facility) if the Facility Agent executes the relevant Additional Facility Accession Agreement.
(e) Each party to this Agreement (other than each proposed Additional Facility Lender Notice confirms, acknowledges, and agrees, that the Company) irrevocably authorises and instructs the Facility Agent has authority to execute on its behalf any Additional Facility Accession Agreement which amendments or waiver that has been duly completed and signed approved by or on behalf of each proposed the requisite Noteholder or Noteholders in accordance with this Agreement on or prior to the date on which the establishment of the Additional Facility Lenderbecomes effective.
(n) The Agent is authorised by the Group to disclose the terms of any Additional Facility Notice to any of the other Finance Parties and, upon request by the other Finance Parties, will promptly disclose such terms to the other Finance Parties.
(o) Subject to the terms of this Clause 2.3, the Company may pay to an Additional Facility Noteholder a fee or closing payment in the amount and at the times agreed between the Company and the Additional Facility Borrower, and the Parent and each Obligor agrees to be bound by such accessionNoteholder.
(f) The Facility Agent shall only be obliged to execute an Additional Facility Accession Agreement delivered to it if:
(i) the terms of its and the Security Trustee’s compensation and indemnities for any additional administrative or other requirements and costs under the Finance Documents arising in relation to the Additional Facility are satisfactory to it; and
(ii) it is satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable law and regulations in relation to the accession of such Additional Facility Lender.
(g) On the date that the Facility Agent executes an Additional Facility Accession Agreement:
(i) each Additional Facility Lender party to that Additional Facility Accession Agreement, each other Finance Party, the Parent and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had each 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
(ii) each Additional Facility Lender shall become a party to this Agreement as an “Additional Facility Lender”.
(h) The execution by the Company of an Additional Facility Accession Agreement constitutes confirmation by the Parent and each Guarantor that its obligations under Clause 29 (Guarantee and Indemnity) shall continue unaffected, except that those obligations shall extend to the Total Commitments as increased by the addition of each relevant Additional Facility Lender’s Commitment and shall be owed to each Finance Party including such Additional Facility Lender.
(i) 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 2.9 (Additional Facility)) to reflect the terms of each Additional Facility.
Appears in 1 contract
Samples: Notes Purchase Agreement (Membership Collective Group Inc.)
Additional Facility. (a) The Company may notify the Facility Agent by no less than 5 Business Days notice that it wishes to establish one or more additional term loan facilities (each an “Additional Facility”) by delivery to the Facility Agent of a duly completed Additional Facility Accession AgreementDeed, duly executed by the Company, each Additional Facility Lender for the Additional Facility and the each Additional Facility Borrower for the relevant Additional Facility, provided provided, in respect of each Additional Facility, that:
(i) no Event of Default is continuing;
(ii) the terms of the that Additional Facility provide that no Utilisation may be made of such Additional Facility if, at the time of such Utilisation, an Event of Default is continuing or would result from such Utilisation;
(iii) the Final Maturity Date applicable to the that Additional Facility shall be no earlier than 3 September 2012 and there 31 December 2015 and, in the event that such Additional Facility provides for any scheduled repayments prior to 31 December 2015, the weighted average life to maturity of such Additional Facility shall not be no scheduled prior repayments required in relation shorter than the weighted average life to maturity of any A Facility, A1 Facility or A2 Facility outstanding under this Agreement at the time of establishment of such Additional Facility;
(iv) the each Additional Facility Borrower for the that Additional Facility is an existing BorrowerObligor;
(v) the principal amount, interest rate, Final Maturity Date, use of proceeds, repayment schedule, availability, fees and related provisions, tax gross-up provisions and indemnity provisions applicable to, and the currency of, the of that Additional Facility shall be agreed by the relevant Additional Facility Borrower Borrowers and the relevant Additional Facility Lenders; provided that Lenders (and, in the case of currency, the Facility Agent) and set out in the relevant Additional Facility Margin may not exceed the sum of:
(A) the highest Applicable Margin payable on the B7 Facility, B8 Facility, B9 Facility, B10 Facility, B11 Facility or B12 Facility; and
(B) 0.75% per annumAccession Deed;
(vi) an amount equal with respect to the any Additional Facility Outstandings the proceeds of which are not applied in relation to any drawing under such Additional Facility shall be applied by the Borrower in irrevocable repayment or prepayment of Outstandings any of the Facilities or Existing Financial Indebtedness (in accordance with each case, in whole or in part), the Company can demonstrate that (A) the pro forma Leverage Ratio (giving effect to such incurrence and the use of proceeds thereof) on the Quarter Date prior to such incurrence (giving pro forma effect to any movement of cash out of the Bank Group since such date pursuant to Clause 12.5(a)(iii25.5 (Dividends, Distributions and Share Capital) and any Permitted Payments) would not exceed the Leverage Ratio required in order to incur any Financial Indebtedness pursuant to Clause 25.4(p) (Repayment from Debt ProceedsFinancial Indebtedness) and (B) the pro forma ratio of Consolidated Senior Net Debt (giving effect to such incurrence and the use of proceeds thereof and giving pro forma effect to any movement of cash out of the Bank Group since such date pursuant to Clause 11.3 25.5 (Application of Repayments); andDividends, Distributions and Share Capital) and any Permitted Payments) to Consolidated Operating Cashflow for the Quarter Date prior to such incurrence would not exceed the ratio set out in Clause 25.2(o) (Negative Pledge) for the Quarter Date following such incurrence;
(vii) the relevant Additional Facility Accession Deed shall specify whether that Additional Facility is in form of a term loan or a revolving loan, provided that an Additional Facility shall only be permitted to be established in the form of a revolving facility if (A) the Revolving Facility Commitments at such time are equal to zero and (B) the aggregate principal amount of all revolving facility commitments under this Agreement do not exceed £500 million at any time;
(viii) unless otherwise set out in the relevant Additional Facility Accession Deed, the general terms of the that Additional Facility shall be consistent in all material respects with the Term Facilities except to the extent terms of variations therefrom this Agreement including, without limitation, with respect to availabilityto, interest period, conditions precedent, tax gross-up provisions and indemnity provisions, representations and warranties, utilisation mechanics, voluntary cancellation and voluntary prepaymentprepayment (including the treatment of that Additional Facility under the prepayment waterfall), fees, costs and expenses, transfers and transfers, voting, amendments and waivers, financial and non-financial covenants and events of default; and
(ix) if any terms relating to prepayment, financial and non-financial covenants and events of default are proposed in each case which relate and (subject as provided below) apply exclusively to the relevant Additional Facility and Accession Deed to be substantially different from the rights and obligations terms of this Agreement, the Additional Lenders under the Additional Facility (for the avoidance of doubt, however, a breach of any term thereof shall be subject to Clause 27 (Events of Default) for all purposes hereunder, and the Lenders in relation to the Facilities terms (other than relating to dividends and restricted payments) shall not be more onerous to the Bank Group as a whole than the terms that apply under this Agreement, the 2014 High Yield Notes or the Existing Senior Secured Notes and shall give no independent rights to the relevant Additional Facility LendersLenders (as a separate class) shall have to accelerate (but without prejudice to their rights as part of the rights thereof Instructing Group under Clauses 27.17 (Acceleration) or 27.18 (Repayment on Demand)) provided that, unless otherwise indicated in relation theretothe relevant Additional Facility Accession Deed, and any amendments covenants or waivers in relation thereto or to any such provision shall be subject to Clause 43 (Amendments), provided that the Additional Facilities may contain covenants events of default in addition to those contained in Clause 23 (Financial Condition), Clause 24 (Positive Undertakings) and ), Clause 25 (Negative Undertakings), but such additional covenants ) and Clause 27 (Events of Default) shall also then apply, mutatis mutandis, to the other Term Facilities, and provided further that in all such cases no variation from the terms of the Facilities may be made where, if such variation were made by amendment to this Agreement (solely for the purposes of making such variation, without giving effect to the Sixth Amendment), such amendment would require the prior written consent of any Lender under Clause 43.4 (Consents), unless the consent of such Lender has been obtained in writing.
(b) Each Additional Facility Accession Agreement Deed shall set out details of the interest rate, principal amount and term of the proposed Additional Facility and confirm that the requirements of in paragraph (a) above are fulfilled. Each Additional Facility Accession Agreement fulfilled and shall also specify the date upon which the Additional Facility is anticipated to be made available to the relevant Additional Facility Borrower Borrowers (the “Additional Facility Commencement Date”).
(c) Subject to the conditions in paragraphs (a) and (b) above being met, from the relevant Additional Facility Commencement Date for an Additional Facility, the 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 FacilityFacility as set out in the relevant Additional Facility Accession Deed.
(d) Each Additional Facility Lender shall become a party to this Agreement (and be entitled to share in the Security in accordance with the terms of the Finance Group Intercreditor Agreement and the Security Documents on the same terms as the Facilities that are being repaid pari passu with the proceeds from other Facilities provided that the Additional Facility Borrowers and the relevant Additional Facility) Facility Lender may agree that an Additional Facility shares in the Security on a junior basis to the other Facilities which, if the Facility Agent executes so agreed, shall be set out in the relevant Additional Facility Accession AgreementDeed.
(e) Each party to this Agreement (other than each proposed Additional Facility Lender and the Company) 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 Additional Facility Lender, the Company and the each proposed Additional Facility Borrower, and the Parent and each Obligor agrees to be bound by such accession.
(f) The Facility Agent shall only be obliged to execute an Additional Facility Accession Agreement Deed delivered to it if:
(i) the terms of its and the Security Trustee’s compensation and indemnities for any additional administrative or other requirements and costs under the Relevant Finance Documents arising in relation to the relevant Additional Facility are satisfactory to it; and
(ii) it is satisfied that it has complied with all necessary “know your customerclient” or other similar checks under all applicable law and regulations in relation to the accession of such the relevant Additional Facility LenderLenders. For the avoidance of doubt, if any terms of an Additional Facility that affect the Facility Agent or L/C Bank in such capacity are different in any material respect from those applying under this Agreement on the Original Execution Date, such differences must be satisfactory to the Facility Agent and L/C Bank if it affects the Facility Agent or L/C Bank in any material and adverse respect.
(g) On the date that the Facility Agent executes an Additional Facility Accession AgreementDeed:
(i) each Additional Facility Lender party to that Additional Facility Accession AgreementDeed, each other Relevant Finance Party, the Parent and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had each Additional Facility Lender been an original 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
(ii) each Additional Facility Lender shall become a party to this Agreement as an “Additional Facility Lender”.
(h) The execution by the Company of an Additional Facility Accession Agreement Deed constitutes confirmation by the Parent and each Guarantor that its obligations under Clause 29 (Guarantee and Indemnity) shall continue unaffected, except that those obligations shall extend to the Total Commitments as increased by the addition of each relevant Additional Facility Lender’s Commitment and shall be owed to each Relevant Finance Party including such Additional Facility Lender.
(i) The Facility Agent is authorised and instructed to enter into such documentation as is reasonably required to amend this Agreement and any other Relevant Finance Document (in accordance with the terms of this Clause 2.9 (Additional Facility)2.6) to reflect the terms of each Additional FacilityFacility without the consent of any Lender other than the applicable Additional Facility Lender.
Appears in 1 contract
Additional Facility. The Seller may, by written notice to INSW, nominate an Eligible Facility to be included as a Facility for the purposes of this document and from which the Seller will supply Green Products to INSW (a) The Company may notify the Facility Agent that it wishes to establish one or more additional term loan facilities (each an “Additional Facility”) by delivery to the ). An Eligible Facility Agent of a duly completed Additional Facility Accession Agreement, duly executed nominated by the Company, each Additional Facility Lender for the Additional Facility and the Additional Facility Borrower for the Additional Facility, provided thatSeller under clause 3.8(a) must:
(i) no Event of Default is continuing;
(ii) if the terms of the Additional Eligible Facility provide that no Utilisation may be made of such Additional Facility if, has not yet achieved Commercial Operation as at the time of such Utilisation, an Event of Default the notice is continuing or would result from such Utilisation;
(iii) the Final Maturity Date applicable to the Additional Facility shall be no earlier than 3 September 2012 and there shall be no scheduled prior repayments required in relation to the Additional Facility;
(iv) the Additional Facility Borrower for the Additional Facility is an existing Borrower;
(v) the interest rate, fees and related provisions, tax gross-up provisions and indemnity provisions applicable to, and the currency of, the Additional Facility shall be agreed by the Additional Facility Borrower and the Additional Facility Lenders; provided that the Additional Facility Margin may not exceed the sum of:given under this clause 3.8(a):
(A) have a target date for achieving Commercial Operation of no later than 18 months after the highest Applicable Margin payable on date of the B7 Facility, B8 Facility, B9 Facility, B10 Facility, B11 Facility or B12 Facilitynotice; and
(B) 0.75% per annum;be developed by the Seller; or
(viii) an amount equal to if the Additional Eligible Facility Outstandings in relation to any drawing under such Additional Facility shall has achieved Commercial Operation as at the time the notice is given, be applied owned and operated by the Borrower in irrevocable repayment or prepayment of Outstandings in accordance with Clause 12.5(a)(iiiSeller.
A notice under clause 3.8(a) (Repayment from Debt Proceeds) and Clause 11.3 (Application of Repayments); and
(vii) the terms must set out a general description of the Additional Facility shall be consistent in all material respects with the Term Facilities except to the extent of variations therefrom with respect to availability(including proposed location, interest periodcapacity and generation profile, conditions precedentarea, representations timeline and warranties, utilisation mechanics, voluntary cancellation proposed volumes and voluntary prepayment, fees, costs and expenses, transfers and amendments and waivers, in each case which relate and (subject as provided below) apply exclusively to associated infrastructure for the Additional Facility). At any time before the Initial Facility and to specified in item 1(d) of schedule 1 ( ) achieves Commercial Operation, the rights and obligations of the Additional Lenders Seller may specify in a notice under the Additional Facility (for the avoidance of doubt, however, a breach of any term thereof shall be subject to Clause 27 (Events of Defaultclause 3.8(a) for all purposes hereunder, and the Lenders in relation to the Facilities (other than the Additional Facility Lenders) shall have the rights thereof in relation thereto, and any amendments or waivers in relation thereto or to any such provision shall be subject to Clause 43 (Amendments), provided that the Additional Facilities may contain covenants in addition to those contained in Clause 23 (Financial Condition), Clause 24 (Positive Undertakings) and Clause 25 (Negative Undertakings), but such additional covenants shall also then apply, mutatis mutandis, to the other Term Facilities, and provided further that in all such cases no variation from the terms of the Facilities may be made where, if such variation were made by amendment to this Agreement (solely for the purposes of making such variation, without giving effect to the Sixth Amendment), such amendment would require the prior written consent of any Lender under Clause 43.4 (Consents), unless the consent of such Lender has been obtained in writing.
(b) Each Additional Eligible Facility Accession Agreement shall set out details of the interest rate, principal amount and term of the proposed Additional Facility and confirm the requirements of paragraph (a) are fulfilled. Each Additional Facility Accession Agreement shall also specify the date upon which the Additional Facility is anticipated nominated to be made available to the relevant Additional Facility Borrower (the “Additional Facility Commencement Date”).
(c) Subject to the conditions in paragraphs (a) and (b) above being met, from the relevant Additional Facility Commencement Date for an Additional Facility, the 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.
(d) Each Additional Facility Lender shall become a party to this Agreement (and be entitled to share in the Security in accordance with the terms of the Finance Documents on the same terms as the Facilities that are being repaid with the proceeds from the relevant Additional Facility) if the Facility Agent executes the relevant Additional Facility Accession Agreement.
(e) Each party to this Agreement (other than each proposed Additional Facility Lender and the Company) 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 Additional Facility Lender, the Company and the Additional Facility Borrower, and the Parent and each Obligor agrees to be bound by such accession.
(f) The Facility Agent shall only be obliged to execute an Additional Facility Accession Agreement delivered to it ifunder such notice will replace the as an Initial Facility and, on any such nomination:
(i) the terms Facility; and will be deemed to no longer be an Initial
(ii) the Additional Facility will be deemed to be an Initial Facility for all purposes under this document, provided that any Additional Facility nominated for the purposes of its this clause 3.8(d) must, without limiting the requirements under clause 3.8(b), have a nameplate generating capacity of at least 4.95 MWac. INSW may request, and the Security Trustee’s compensation and indemnities for any additional administrative or Seller must provide, such other requirements and costs under the Finance Documents arising information in relation to the Additional Facility are satisfactory as INSW may reasonably require. For the avoidance of doubt, the Seller must sell and Transfer Green Products to itINSW equal to:
(i) in respect of a Quarter, the Quarterly Volume; and
(ii) it is satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable law and regulations in relation respect of a Year, the Base Guaranteed Volume, (including any amounts referable to the accession Additional Volume in respect of such Additional Facility Lender.
(gperiods) On the date that the Facility Agent executes an Additional Facility Accession Agreement:
(i) each Additional Facility Lender party to that Additional Facility Accession Agreement, each other Finance Party, the Parent and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had each 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
(ii) each Additional Facility Lender shall become a party to this Agreement as an “Additional Facility Lender”.
(h) The execution by the Company of an Additional Facility Accession Agreement constitutes confirmation by the Parent and each Guarantor that its obligations under Clause 29 (Guarantee and Indemnity) shall continue unaffected, except that those obligations shall extend to the Total Commitments as increased by the addition of each relevant Additional Facility Lender’s Commitment and shall be owed to each Finance Party including such Additional Facility Lender.
(i) 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 2.9 (document, regardless of whether or not the Seller has nominated an Additional FacilityFacility in accordance with clause 3.8(a)) to reflect the terms of each Additional Facility. The Seller may give one or more notices under this clause 3.8.
Appears in 1 contract
Samples: Green Products Purchase Agreement
Additional Facility. (a) The Company may notify Borrower shall have the Facility Agent that it wishes right at any time (so long as no Default or Event of Default then exists) and from time to establish one or more additional term loan facilities (each an “Additional Facility”) by delivery time after the Syndication Period and prior to the Facility Agent earlier of a duly completed Additional Facility Accession Agreement, duly executed by the Company, each Additional Facility Lender for the Additional Facility and the Additional Facility Borrower for the Additional Facility, provided that:
(i) no Event of Default is continuing;
the date the Borrower together with Orius Capital Corp. issue additional Senior Subordinated Notes in accordance with Section 8.2(e) or (ii) the terms first anniversary of the Additional Facility provide Restatement Date, to incur from one or more existing Lenders and/or other Persons that no Utilisation may be made of such Additional Facility if, at the time of such Utilisation, an Event of Default is continuing or would result from such Utilisation;
(iii) the Final Maturity Date applicable to the Additional Facility shall be no earlier than 3 September 2012 and there shall be no scheduled prior repayments required in relation to the Additional Facility;
(iv) the Additional Facility Borrower for the Additional Facility is an existing Borrower;
(v) the interest rate, fees and related provisions, tax gross-up provisions and indemnity provisions applicable toare Eligible Assignees, and the currency of, the Additional Facility shall be agreed by the Additional Facility Borrower and the Additional Facility Lenders; provided that the Additional Facility Margin may not exceed the sum of:
(A) the highest Applicable Margin payable on the B7 Facility, B8 Facility, B9 Facility, B10 Facility, B11 Facility or B12 Facility; and
(B) 0.75% per annum;
(vi) an amount equal to the Additional Facility Outstandings in relation to any drawing under such Additional Facility shall be applied by the Borrower in irrevocable repayment or prepayment of Outstandings in accordance with Clause 12.5(a)(iii) (Repayment from Debt Proceeds) and Clause 11.3 (Application of Repayments); and
(vii) the terms of the Additional Facility shall be consistent in all material respects with the Term Facilities except to the extent of variations therefrom with respect to availability, interest period, conditions precedent, representations and warranties, utilisation mechanics, voluntary cancellation and voluntary prepayment, fees, costs and expenses, transfers and amendments and waiverswhich, in each case which relate and (subject as provided below) apply exclusively case, agree to make such loans to the Additional Facility and Borrower, loans in an aggregate principal amount not to the rights and obligations of the Additional Lenders under the Additional Facility exceed $50,000,000, which loans may be incurred as (for the avoidance of doubtx) additional Term C Loans, however, a breach of any term thereof shall be subject with all references in this Agreement to Clause 27 (Events of Default) for all purposes hereunder, and the Lenders in relation to the Facilities Term C Loans (other than the Additional Facility Lendersprovisions requiring Term C Loans to be incurred on the Restatement Date) shall have to include the rights thereof in relation thereto, and any amendments or waivers in relation thereto or loans made pursuant to any such provision shall be subject to Clause 43 (Amendmentsthis Section 2.10(a)(x), provided (y) term loans (the "Term D Loans") that are pari passu in all respects to the Loans made pursuant to Section 2.01 under a facility that would provide that the Additional Facilities may contain covenants Term D Loans would have an average life to maturity and a final maturity no earlier than Term C Loans or (z) a combination of additional Term C Loans and Term D Loans allocated in addition a manner reasonably acceptable to those contained in Clause 23 (Financial Condition), Clause 24 (Positive Undertakings) and Clause 25 (Negative Undertakings), but such additional covenants shall also then apply, mutatis mutandis, to the other Term Facilities, and provided further that in all such cases no variation from the terms of the Facilities may be made where, if such variation were made by amendment to this Agreement (solely for the purposes of making such variation, without giving effect to the Sixth Amendment), such amendment would require the prior written consent of any Lender under Clause 43.4 (Consents), unless the consent of such Lender has been obtained in writingAgent.
(b) Each Additional Facility Accession Agreement shall set out details of the interest rate, principal amount and term of the proposed Additional Facility and confirm the requirements of paragraph (a) are fulfilled. Each Additional Facility Accession Agreement shall also specify the date upon which the Additional Facility is anticipated Lender making Term C Loans pursuant to be made available to the relevant Additional Facility Borrower (the “Additional Facility Commencement Date”).
(c) Subject to the conditions in paragraphs (a) and (b) above being met, from the relevant Additional Facility Commencement Date for an Additional Facility, the Additional Facility Lenders for that Additional Facility shall make available the Additional Facility in this Section 2.10 not theretofore a maximum aggregate amount not exceeding the aggregate Additional Facility Commitments in respect of that Additional Facility.
(d) Each Additional Facility Lender shall become a party to this Agreement (by executing a counterpart copy of this Agreement and be entitled returning the same to share Agent. Borrower will execute and issue to each Lender making additional Term C Loans pursuant to this Section 2.10 a promissory note dated the date of the respective additional Term C Loan with substantially identical language to that in the Security in accordance Term C Loans executed on the Restatement Date (which new notes shall constitute Term C Notes). Upon the incurrence of such additional Term C Loans, the definition of "Scheduled Term C Repayments" will be automatically adjusted such that the remaining repayments will be increased proportionately (as opposed to equally). To the extent that the Borrower desires to incur Term D Loans, it will enter into an amendment with the lenders (who shall by execution thereof become Lenders hereunder if not theretofore Lenders) to provide for such Term D Loans, which amendment shall set forth any terms and conditions of the Finance Documents on the same terms as the Facilities that are being repaid with the proceeds from the relevant Additional Facility) if the Facility Agent executes the relevant Additional Facility Accession Agreement.
(e) Each party to this Agreement (other than each proposed Additional Facility Lender and the Company) 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 Additional Facility Lender, the Company and the Additional Facility Borrower, and the Parent and each Obligor agrees to be bound Term D Loans not covered by such accession.
(f) The Facility Agent shall only be obliged to execute an Additional Facility Accession Agreement delivered to it if:
(i) the terms of its and the Security Trustee’s compensation and indemnities for any additional administrative or other requirements and costs under the Finance Documents arising in relation to the Additional Facility are satisfactory to it; and
(ii) it is satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable law and regulations in relation to the accession of such Additional Facility Lender.
(g) On the date that the Facility Agent executes an Additional Facility Accession Agreement:
(i) each Additional Facility Lender party to that Additional Facility Accession Agreement, each other Finance Party, the Parent and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had each 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
(ii) each Additional Facility Lender shall become a party to this Agreement as an “Additional Facility Lender”.
(h) The execution agreed by the Company of an Additional Facility Accession Agreement constitutes confirmation by the Parent Borrower and each Guarantor that its obligations under Clause 29 (Guarantee and Indemnity) shall continue unaffectedsuch Lenders, except that those obligations shall extend to the Total Commitments as increased by the addition of each relevant Additional Facility Lender’s Commitment and shall provide for the issuance of promissory notes to evidence the Term D Loans (which notes shall constitute Notes for purposes of this Agreement), with such amendment to be owed in form and substance acceptable to each Finance Party including such Additional Facility Lender.
(i) 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 consistent with the terms of this Clause 2.9 Section and of the other provisions of this Agreement. No consent of any Lender (Additional Facility)other than any Lender making a Term D Loan) is required to reflect permit the terms of each Additional FacilityLoans contemplated by this Section or the aforesaid amendment to effectuate the Term D Loans.
Appears in 1 contract
Additional Facility. (a) The Company may notify Borrowers shall have the Facility right at any time (so long as (x) no Unmatured Event of Default or Event of Default then exists and (y) Borrowers shall have delivered to Administrative Agent that it wishes a Compliance Certificate for the period of four full Fiscal Quarters immediately preceding the incurrence described below (prepared in good faith and in a manner and using such methodology which is consistent with the most recent financial statements delivered pursuant to establish Section 7.1) giving pro forma effect to such incurrence and evidencing compliance with the covenants set forth in Article IX and a pro forma Senior Secured Leverage Ratio of not more than 2.25:1.0 as of the last day of such period), and from time to time after the Syndication Date to incur from one or more existing Lenders and/or other Persons that are Eligible Assignees and which, in each case, agree to make such loans to the applicable Borrower, loans and commitments to make loans in an aggregate principal amount not to exceed $300,000,000 (or the Dollar Equivalent thereof at the time of funding), which loans may be incurred as one or more tranches of additional term loan facilities loans (each an “the "Additional Facility”Term Loans") as determined by delivery Administrative Agent that are pari passu in all respects to the Facility Agent of Term Loans made pursuant to Section 2.1(a) under a duly completed Additional Facility Accession Agreement, duly executed by the Company, each Additional Facility Lender for facility that would provide that the Additional Facility Term Loans would have a Weighted Average Life to Maturity of not less than the Term Loan with the then longest Weighted Average Life to Maturity and the Additional Facility Borrower for the Additional Facilitya final maturity no earlier than latest Term Maturity Date; provided, provided that:
that (i) no Event the terms and conditions of Default is continuing;
any Additional Term Loans shall be substantially similar to those applicable to the existing Term Loan Facilities and (ii) the terms applicable margins (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (amortized over the life of such loan) payable to all Lenders providing such Additional Term Loans, but exclusive of any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Additional Term Loans) determined as of the initial funding date for such Additional Term Loans shall not be greater than 0.50% above the applicable margins then in effect for Term B Dollar Loans or Term B Euro Loans, as applicable based on the currency of the Additional Facility provide that no Utilisation may Term Loan (which, for such purposes only, shall be made deemed to include all upfront or similar fees or original issue discount (amortized over the life of such Additional Facility ifloan) paid to all Term B Dollar Lenders or Term B Euro Lenders, at the time of such Utilisation, an Event of Default is continuing or would result from such Utilisation;
(iii) the Final Maturity Date as applicable to the Additional Facility shall be no earlier than 3 September 2012 and there shall be no scheduled prior repayments required in relation to the Additional Facility;
(iv) the Additional Facility Borrower for the Additional Facility is an existing Borrower;
(v) the interest rate, fees and related provisions, tax gross-up provisions and indemnity provisions applicable to, and based on the currency of, the Additional Facility shall be agreed by the Additional Facility Borrower and the Additional Facility Lenders; provided that the Additional Facility Margin may not exceed the sum of:
(A) the highest Applicable Margin payable on the B7 Facility, B8 Facility, B9 Facility, B10 Facility, B11 Facility or B12 Facility; and
(B) 0.75% per annum;
(vi) an amount equal to the Additional Facility Outstandings in relation to any drawing under such Additional Facility shall be applied by the Borrower in irrevocable repayment or prepayment of Outstandings in accordance with Clause 12.5(a)(iii) (Repayment from Debt Proceeds) and Clause 11.3 (Application of Repayments); and
(vii) the terms of the Additional Facility shall be consistent in all material respects with the Term Facilities except to the extent of variations therefrom with respect to availability, interest period, conditions precedent, representations and warranties, utilisation mechanics, voluntary cancellation and voluntary prepayment, fees, costs and expenses, transfers and amendments and waivers, in each case which relate and (subject Loans as provided below) apply exclusively to the Additional Facility and to the rights and obligations of the initial funding date for such Additional Lenders under the Additional Facility (for the avoidance of doubtTerm Loans, however, a breach but exclusive of any term thereof shall be subject to Clause 27 (Events of Default) for arrangement, structuring or other fees payable in connection therewith that are not shared with all purposes hereunder, and the Lenders in relation to the Facilities (other than the Additional Facility Term B Dollar Lenders) shall have the rights thereof in relation thereto, and any amendments or waivers in relation thereto or to any such provision shall be subject to Clause 43 (Amendments), provided that the Additional Facilities may contain covenants in addition to those contained in Clause 23 (Financial Condition), Clause 24 (Positive Undertakings) and Clause 25 (Negative Undertakings), but such additional covenants shall also then apply, mutatis mutandis, to the other Term Facilities, and provided further that in all such cases no variation from the terms of the Facilities may be made where, if such variation were made by amendment to this Agreement (solely for the purposes of making such variation, without giving effect to the Sixth Amendment), such amendment would require the prior written consent of any Lender under Clause 43.4 (Consents), unless the consent of such Lender has been obtained in writing.
(b) Each In the event that any Borrower desires to incur Additional Facility Accession Agreement Term Loans, such Borrower will enter into an amendment with the lenders (who shall by execution thereof become Lenders hereunder if not theretofore Lenders) to provide for such Additional Term Loans, which amendment shall set out details forth any terms and conditions of the interest rate, principal amount and term of the proposed Additional Facility and confirm the requirements of paragraph (a) are fulfilled. Each Additional Facility Accession Agreement shall also specify the date upon which the Additional Facility is anticipated to be made available to the relevant Additional Facility Borrower (the “Additional Facility Commencement Date”).
(c) Subject to the conditions in paragraphs (a) and (b) above being met, from the relevant Additional Facility Commencement Date for an Additional Facility, the Additional Facility Lenders for that Additional Facility shall make available the Additional Facility in a maximum aggregate amount Term Loans not exceeding the aggregate Additional Facility Commitments in respect of that Additional Facility.
(d) Each Additional Facility Lender shall become a party to this Agreement (and be entitled to share in the Security in accordance with the terms of the Finance Documents on the same terms as the Facilities that are being repaid with the proceeds from the relevant Additional Facility) if the Facility Agent executes the relevant Additional Facility Accession Agreement.
(e) Each party to this Agreement (other than each proposed Additional Facility Lender and the Company) 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 Additional Facility Lender, the Company and the Additional Facility Borrower, and the Parent and each Obligor agrees to be bound covered by such accession.
(f) The Facility Agent shall only be obliged to execute an Additional Facility Accession Agreement delivered to it if:
(i) the terms of its and the Security Trustee’s compensation and indemnities for any additional administrative or other requirements and costs under the Finance Documents arising in relation to the Additional Facility are satisfactory to it; and
(ii) it is satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable law and regulations in relation to the accession of such Additional Facility Lender.
(g) On the date that the Facility Agent executes an Additional Facility Accession Agreement:
(i) each Additional Facility Lender party to that Additional Facility Accession Agreement, each other Finance Party, the Parent and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had each 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
(ii) each Additional Facility Lender shall become a party to this Agreement as an “Additional Facility Lender”.
(h) The execution agreed by the Company applicable Borrower and such Lenders, and shall provide for the issuance of an promissory notes to evidence the Additional Facility Accession Agreement constitutes confirmation Term Loans if requested by the Parent lenders advancing Additional Term Loans (which notes shall constitute Term Notes for purposes of this Agreement), with such amendment to be in form and each Guarantor that its obligations under Clause 29 (Guarantee substance reasonably acceptable to Administrative Agent and Indemnity) shall continue unaffected, except that those obligations shall extend to the Total Commitments as increased by the addition of each relevant Additional Facility Lender’s Commitment and shall be owed to each Finance Party including such Additional Facility Lender.
(i) 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 consistent with the terms of this Clause 2.9 Section 2.9(b) and of the other provisions of this Agreement. No consent of any Lender (other than any Lender making Additional Facility)Term Loans) is required to reflect permit the terms of each Loans contemplated by this Section 2.9(b) or the aforesaid amendment to effectuate the Additional FacilityTerm Loans. This section shall supercede any provisions contained in this Agreement, including, without limitation, Section 12.1, to the contrary.
Appears in 1 contract
Samples: Credit Agreement (Ball Corp)
Additional Facility. (a) The Company may notify the Facility Agent by no less than 5 Business Days notice that it wishes to establish one or more additional term loan facilities (each an “Additional Facility”) by delivery to the Facility Agent of a duly completed Additional Facility Accession AgreementDeed, duly executed by the Company, each Additional Facility Lender for the Additional Facility and the each Additional Facility Borrower for the relevant Additional Facility, provided provided, in respect of each Additional Facility, that:
(i) no Event of Default is continuing;
(ii) the terms of the that Additional Facility provide that no Utilisation may be made of such Additional Facility if, at the time of such Utilisation, an Event of Default is continuing or would result from such Utilisation;
(iii) the Final Maturity Date applicable to the that Additional Facility shall be no earlier than 3 September 2012 and there 31 December 2015 and, in the event that such Additional Facility provides for any scheduled repayments prior to 31 December 2015, the weighted average life to maturity of such Additional Facility shall not be no scheduled prior repayments required in relation shorter than the weighted average life to maturity of any A Facility outstanding under this Agreement at the time of establishment of such Additional Facility;
(iv) the each Additional Facility Borrower for the that Additional Facility is an existing BorrowerObligor;
(v) the principal amount, interest rate, Final Maturity Date, use of proceeds, repayment schedule, availability, fees and related provisions, tax gross-up provisions and indemnity provisions applicable to, and the currency of, the of that Additional Facility shall be agreed by the relevant Additional Facility Borrower Borrowers and the relevant Additional Facility Lenders; provided that Lenders (and, in the case of currency, the Facility Agent) and set out in the relevant Additional Facility Margin may not exceed the sum of:
(A) the highest Applicable Margin payable on the B7 Facility, B8 Facility, B9 Facility, B10 Facility, B11 Facility or B12 Facility; and
(B) 0.75% per annumAccession Deed;
(vi) an amount equal with respect to the any Additional Facility Outstandings the proceeds of which are not applied in relation to any drawing under such Additional Facility shall be applied by the Borrower in irrevocable repayment or prepayment of Outstandings any of the Facilities or Existing Financial Indebtedness (in accordance with each case, in whole or in part), the Company can demonstrate that (A) the pro forma Leverage Ratio (giving effect to such incurrence and the use of proceeds thereof) on the Quarter Date prior to such incurrence (giving pro forma effect to any movement of cash out of the Bank Group since such date pursuant to Clause 12.5(a)(iii25.5 (Dividends, Distributions and Share Capital) and any Permitted Payments) would not exceed the Leverage Ratio required in order to incur any Financial Indebtedness pursuant to Clause 25.4(p) (Repayment from Debt ProceedsFinancial Indebtedness) and (B) the pro forma ratio of Consolidated Senior Net Debt (giving effect to such incurrence and the use of proceeds thereof and giving pro forma effect to any movement of cash out of the Bank Group since such date pursuant to Clause 11.3 25.5 (Application of Repayments); andDividends, Distributions and Share Capital) and any Permitted Payments) to Consolidated Operating Cashflow for the Quarter Date prior to such incurrence would not exceed the ratio set out in Clause 25.2(o) (Negative Pledge) for the Quarter Date following such incurrence;
(vii) the relevant Additional Facility Accession Deed shall specify whether that Additional Facility is in form of a term loan or a revolving loan, provided that an Additional Facility shall only be permitted to be established in the form of a revolving facility if (A) the Revolving Facility Commitments at such time are equal to zero and (B) the aggregate principal amount of all revolving facility commitments under this Agreement do not exceed £500 million at any time;
(viii) the proceeds of such Additional Facility shall not be used (A) in payment of any dividends or distributions to the Ultimate Parent and (B), prior to 1 August 2011, in repayment or prepayment of any 2016 High Yield Notes;
(ix) unless otherwise set out in the relevant Additional Facility Accession Deed, the general terms of the that Additional Facility shall be consistent in all material respects with the Term Facilities except to the extent terms of variations therefrom this Agreement including, without limitation, with respect to availabilityto, interest period, conditions precedent, tax gross-up provisions and indemnity provisions, representations and warranties, utilisation mechanics, voluntary cancellation and voluntary prepaymentprepayment (including the treatment of that Additional Facility under the prepayment waterfall), fees, costs and expenses, transfers and transfers, voting, amendments and waivers, financial and non-financial covenants and events of default; and
(x) if any terms relating to prepayment, financial and non-financial covenants and events of default are proposed in each case which relate and (subject as provided below) apply exclusively to the relevant Additional Facility and Accession Deed to be substantially different from the rights and obligations terms of this Agreement, the Additional Lenders under the Additional Facility (for the avoidance of doubt, however, a breach of any term thereof shall be subject to Clause 27 (Events of Default) for all purposes hereunder, and the Lenders in relation to the Facilities terms (other than relating to dividends and restricted payments) shall not be more onerous to the Bank Group as a whole than the terms that apply under this Agreement, the 2014 High Yield Notes or the Existing Senior Secured Notes and shall give no independent rights to the relevant Additional Facility LendersLenders (as a separate class) shall have to accelerate (but without prejudice to their rights as part of the rights thereof Instructing Group under Clauses 27.17 (Acceleration) or 27.18 (Repayment on Demand)) provided that, unless otherwise indicated in relation theretothe relevant Additional Facility Accession Deed, and any amendments covenants or waivers in relation thereto or to any such provision shall be subject to Clause 43 (Amendments), provided that the Additional Facilities may contain covenants events of default in addition to those contained in Clause 23 (Financial Condition), Clause 24 (Positive Undertakings) and ), Clause 25 (Negative Undertakings), but such additional covenants ) and Clause 27 (Events of Default) shall also then apply, mutatis mutandis, to the other Term Facilities, and provided further that in all such cases no variation from the terms of the Facilities may be made where, if such variation were made by amendment to this Agreement (solely for the purposes of making such variation, without giving effect to the Sixth Amendment), such amendment would require the prior written consent of any Lender under Clause 43.4 (Consents), unless the consent of such Lender has been obtained in writing.
(b) Each Additional Facility Accession Agreement Deed shall set out details of the interest rate, principal amount and term of the proposed Additional Facility and confirm that the requirements of in paragraph (a) above are fulfilled. Each Additional Facility Accession Agreement fulfilled and shall also specify the date upon which the Additional Facility is anticipated to be made available to the relevant Additional Facility Borrower Borrowers (the “Additional Facility Commencement Date”).
(c) Subject to the conditions in paragraphs (a) and (b) above being met, from the relevant Additional Facility Commencement Date for an Additional Facility, the 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 FacilityFacility as set out in the relevant Additional Facility Accession Deed.
(d) Each Additional Facility Lender shall become a party to this Agreement (and be entitled to share in the Security in accordance with the terms of the Finance Group Intercreditor Agreement and the Security Documents on the same terms as the Facilities that are being repaid pari passu with the proceeds from other Facilities provided that the Additional Facility Borrowers and the relevant Additional Facility) Facility Lender may agree that an Additional Facility shares in the Security on a junior basis to the other Facilities which, if the Facility Agent executes so agreed, shall be set out in the relevant Additional Facility Accession AgreementDeed.
(e) Each party to this Agreement (other than each proposed Additional Facility Lender and the Company) 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 Additional Facility Lender, the Company and the each proposed Additional Facility Borrower, and the Parent and each Obligor agrees to be bound by such accession.
(f) The Facility Agent shall only be obliged to execute an Additional Facility Accession Agreement Deed delivered to it if:
(i) the terms of its and the Security Trustee’s compensation and indemnities for any additional administrative or other requirements and costs under the Relevant Finance Documents arising in relation to the relevant Additional Facility are satisfactory to it; and
(ii) it is satisfied that it has complied with all necessary “know your customerclient” or other similar checks under all applicable law and regulations in relation to the accession of such the relevant Additional Facility LenderLenders. For the avoidance of doubt, if any terms of an Additional Facility that affect the Facility Agent or L/C Bank in such capacity are different in any material respect from those applying under this Agreement on the Original Execution Date, such differences must be satisfactory to the Facility Agent and L/C Bank if it affects the Facility Agent or L/C Bank in any material and adverse respect.
(g) On the date that the Facility Agent executes an Additional Facility Accession AgreementDeed:
(i) each Additional Facility Lender party to that Additional Facility Accession AgreementDeed, each other Relevant Finance Party, the Parent and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had each Additional Facility Lender been an original 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
(ii) each Additional Facility Lender shall become a party to this Agreement as an “Additional Facility Lender”.
(h) The execution by the Company of an Additional Facility Accession Agreement Deed constitutes confirmation by the Parent and each Guarantor that its obligations under Clause 29 (Guarantee and Indemnity) shall continue unaffected, except that those obligations shall extend to the Total Commitments as increased by the addition of each relevant Additional Facility Lender’s Commitment and shall be owed to each Relevant Finance Party including such Additional Facility Lender.
(i) The Facility Agent is authorised and instructed to enter into such documentation as is reasonably required to amend this Agreement and any other Relevant Finance Document (in accordance with the terms of this Clause 2.9 (Additional Facility)2.5) to reflect the terms of each Additional FacilityFacility without the consent of any Lender other than the applicable Additional Facility Lender.
Appears in 1 contract
Additional Facility. (a) The Company may notify the Facility Agent that it wishes to establish one or more additional term loan facilities (each an “Additional Facility”) by delivery to the Facility Agent of a duly completed Additional Facility Accession Agreement, duly executed by the Company, each Additional Facility Lender for the Additional Facility and the Additional Facility Borrower for the Additional Facility, provided that:
(i) no Event of Default is continuing;
(ii) the terms of the Additional Facility provide that no Utilisation may be made of such Additional Facility if, at the time of such Utilisation, an Event of Default is continuing or would result from such Utilisation;
(iii) the Final Maturity Date applicable to the Additional Facility shall be no earlier than 3 September 2012 and there shall be no scheduled prior repayments required in relation to the Additional Facility;
(iv) the Additional Facility Borrower for the Additional Facility is an existing Borrower;
(v) the interest rate, fees and related provisions, tax gross-up provisions and indemnity provisions applicable to, and the currency of, the Additional Facility shall be agreed by the Additional Facility Borrower and the Additional Facility Lenders; provided that the Additional Facility Margin may not exceed the sum of:
(A) the highest Applicable Margin payable on the B7 Facility, B8 Facility, B9 Facility, B10 Facility, B11 Facility or B12 Facility; and
(B) 0.75% per annum;
(vi) an amount equal to the Additional Facility Outstandings in relation to any drawing under such Additional Facility shall be applied by the Borrower in irrevocable repayment or prepayment of Outstandings in accordance with Clause 12.5(a)(iii) (Repayment from Debt Proceeds) and Clause 11.3 (Application of Repayments); and
(vii) the terms of the Additional Facility shall be consistent in all material respects with the Term Facilities except to the extent of variations therefrom with respect to availability, interest period, conditions precedent, representations and warranties, utilisation mechanics, voluntary cancellation and voluntary prepayment, fees, costs and expenses, transfers and amendments and waivers, in each case which relate and (subject as provided below) apply exclusively to the Additional Facility and to the rights and obligations of the Additional Lenders under the Additional Facility (for the avoidance of doubt, however, a breach of any term thereof shall be subject to Clause 27 (Events of Default) for all purposes hereunder, and the Lenders in relation to the Facilities (other than the Additional Facility Lenders) shall have the rights thereof in relation thereto, and any amendments or waivers in relation thereto or to any such provision shall be subject to Clause 43 (Amendments), provided that the Additional Facilities may contain covenants in addition to those contained in Clause 23 (Financial Condition), Clause 24 (Positive Undertakings) and Clause 25 (Negative Undertakings), but such additional covenants shall also then apply, mutatis mutandis, to the other Term Facilities, and provided further that in all such cases no variation from the terms of the Facilities may be made where, if such variation were made by amendment to this Agreement (solely for the purposes of making such variation, without giving effect to the Sixth Amendment), such amendment would require the prior written consent of any Lender under Clause 43.4 (Consents), unless the consent of such Lender has been obtained in writing.
(b) Each Additional Facility Accession Agreement shall set out details of the interest rate, principal amount and term of the proposed Additional Facility and confirm the requirements of paragraph (a) are fulfilled. Each Additional Facility Accession Agreement shall also specify the date upon which the Additional Facility is anticipated to be made available to the relevant Additional Facility Borrower (the “Additional Facility Commencement Date”).
(c) Subject to the conditions in paragraphs (a) and (b) above being met, from the relevant Additional Facility Commencement Date for an Additional Facility, the 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.
(d) Each Additional Facility Lender shall become a party to this Agreement (and be entitled to share in the Security in accordance with the terms of the Finance Documents on the same terms as the Facilities that are being repaid with the proceeds from the relevant Additional Facility) if the Facility Agent executes the relevant Additional Facility Accession Agreement.
(e) Each party to this Agreement (other than each proposed Additional Facility Lender and the Company) 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 Additional Facility Lender, the Company and the Additional Facility Borrower, and the Parent and each Obligor agrees to be bound by such accession.
(f) The Facility Agent shall only be obliged to execute an Additional Facility Accession Agreement delivered to it if:
(i) the terms of its and the Security Trustee’s Trustees compensation and indemnities for any additional administrative or other requirements and costs under the Finance Documents arising in relation to the Additional Facility are satisfactory to it; and
(ii) it is satisfied it has complied with all necessary “know your customer” customer or other similar checks under all applicable law and regulations in relation to the accession of such Additional Facility Lender.
(g) On the date that the Facility Agent executes an Additional Facility Accession Agreement:
(i) each Additional Facility Lender party to that Additional Facility Accession Agreement, each other Finance Party, the Parent and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had each 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
(ii) each Additional Facility Lender shall become a party to this Agreement as an “Additional Facility Lender”.
(h) The execution by the Company of an Additional Facility Accession Agreement constitutes confirmation by the Parent and each Guarantor that its obligations under Clause 29 (Guarantee and Indemnity) shall continue unaffected, except that those obligations shall extend to the Total Commitments as increased by the addition of each relevant Additional Facility Lender’s Lenders Commitment and shall be owed to each Finance Party including such Additional Facility Lender.
(i) 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 2.9 (Additional Facility)) to reflect the terms of each Additional Facility.
Appears in 1 contract
Additional Facility. (a) The Subject to the terms of this Clause 2.3, the Company may notify may, with the prior consent of the Majority Noteholders, establish an Additional Facility under this Agreement by notice to the Agent that it wishes to establish one or more additional term loan facilities (each such notice, an “Additional FacilityFacility Notice”)
(b) by delivery to the The Additional Facility Agent of a Notice shall not be regarded as having been duly completed Additional Facility Accession Agreement, duly executed unless it is signed by each party thereto and specifies the Company, each Additional Facility Lender for the Additional Facility and the Additional Facility Borrower for the following matters in respect of such Additional Facility, provided that:
(i) no Event of Default is continuingthe Issuer for the Additional Facility;
(ii) the terms person(s) to become Additional Facility Noteholders in respect of the Additional Facility provide that no Utilisation may be made and the amount of the commitments of such Additional Facility if, at the time of such Utilisation, an Event of Default is continuing or would result from such Utilisationallocated to each Additional Facility Noteholder;
(iii) the Final Maturity Date applicable to aggregate amount of the commitments of the Additional Facility shall be no earlier than 3 September 2012 and there shall be no scheduled prior repayments required in relation to the currency being made available and any other or optional currency or currencies which are available for issuance under such Additional Facility;
(iv) the Additional Facility Borrower for Margin applicable to the Additional Facility is an existing BorrowerFacility;
(v) the interest rate, fees Establishment Date and related provisions, tax gross-up Availability Period for the Additional Facility; and
(vi) the Termination Date and amortisation scheduled (if any) and any mandatory redemption provisions and indemnity provisions applicable to, and the currency of, (including whether the Additional Facility will share rateably or less than rateably in mandatory redemptions).
(c) Nothing in this Clause 2.3 shall be agreed by oblige any Noteholder to provide any Additional Facility Commitment at any time.
(d) Subject to the terms of this Clause 2.3, the Company may exercise its rights to request commitments for Additional Facilities on as many occasions as it wishes during the life of the Facilities.
(e) No person may become a Noteholder in respect of an Additional Facility unless such person is a U.S. Exempt Noteholder.
(f) If the Additional Facility Borrower Noteholders in respect of any Additional Facility Commitment (acting reasonably) and the Company so agree, those Additional Facility Commitments shall be made available on a certain funds basis in connection with an acquisition not prohibited by this Agreement, for such period and on such terms as the Company and those Additional Facility Noteholders shall agree.
(g) The establishment of an Additional Facility will only be effective on:
(i) the execution of the Additional Facility Lenders; provided that the Notice relating to such Additional Facility Margin may not exceed by the sum ofCompany and/or the relevant Issuer(s) and the relevant Additional Facility Noteholder(s) and delivery of such executed notice to the Agent; and
(ii) in respect of each Acceding Noteholder:
(A) the highest Applicable Margin payable on performance by the B7 FacilityAgent of all necessary “know-your-customer” or similar checks under all applicable laws and regulations, B8 Facility, B9 Facility, B10 Facility, B11 Facility or B12 Facilitythe completion of which the Agent shall promptly notify to the Company; and
(B) 0.75% per annum;that Acceding Noteholder entering into an Additional Noteholder Accession Deed.
(vih) On the Establishment Date, the relevant Additional Facility shall come into effect and be established in accordance with its terms and:
(i) subject to the terms of this Agreement, the Additional Facility Noteholders make available to the relevant Issuer(s) a notes facility in an aggregate amount equal to the Additional Facility Outstandings Commitments specified in relation the Additional Facility Notice, and irrevocably agree to any drawing subscribe for the notes to be issued under such facility;
(ii) each of the Obligors and each Additional Facility Noteholder shall be applied by assume obligations towards one another and/or acquire rights against one another as the Borrower Obligors and that Additional Facility Noteholder would have assumed and/or acquired had that Additional Facility Noteholder been an Original Notes Purchaser with respect to the Additional Facility Commitment specified opposite its name in irrevocable repayment or prepayment the Additional Facility Notice;
(iii) each Additional Facility Noteholder and each of Outstandings the other Finance Parties shall assume obligations towards one another and acquire rights against one another as that Additional Facility Noteholder and those Finance Parties would have assumed and/or acquired had the Additional Facility Noteholder been an Original Notes Purchaser with respect to the Additional Facility Commitment specified opposite its name in accordance with Clause 12.5(a)(iiithe Additional Facility Notice;
(iv) (Repayment from Debt Proceeds) and Clause 11.3 (Application of Repayments)each Additional Facility Noteholder shall become a Party as a “Noteholder”; and
(viiv) the Commitments of the other Noteholders shall continue in full force and effect.
(i) Each Obligor confirms:
(i) the authority of the Company to agree, implement and establish the Additional Facility in accordance with this Agreement; and
(ii) that its guarantee and indemnity recorded in Clause 21 (Guarantee and Indemnity) (or any applicable Accession Deed or other Finance Document), and all Transaction Security granted by it will, subject only to any applicable limitation on such guarantee and indemnity referred to in Clause 21 (Guarantee and Indemnity) and any Accession Deed pursuant to which is became an Obligor or the terms of the Transaction Security Documents, extend to include the relevant Additional Facility Notes and any other obligations arising under or in respect of the relevant Additional Facility Commitments.
(j) Each Finance Party agrees and empowers:
(i) the Agent promptly (upon request of (and as reasonably requested by) the Company) to acknowledge, execute and confirm acceptance of each Additional Facility Notice; and
(ii) the Agent and the Collateral Agent at the cost of the Obligors (provided such costs are reasonably incurred) to (and the relevant Obligor shall promptly upon request by the Agent or the Collateral Agent in accordance with the Agreed Security Principles) execute any necessary amendments to the Transaction Security Documents and other Finance Documents (including this Agreement and the Intercreditor Agreement) as may be required in order to ensure that any Additional Facility Commitments are made available on the terms contemplated in this Clause 2.3 and the Additional Facility Notice.
(k) The Agent and/or the Collateral Agent shall as soon as reasonably practicable send to the Company a copy of each executed Additional Facility Notice and, if applicable, Additional Noteholder Accession Deed and if applicable, the documentation required for the Additional Facility Noteholder to accede to the Intercreditor Agreement.
(l) The terms applicable to any Additional Facility will be those agreed by the Additional Facility Noteholders in respect of that Additional Facility and the Company. If there is any inconsistency between any such term agreed in respect of an Additional Facility and any other term of a Finance Document, the term agreed in respect of the Additional Facility shall be consistent in all material respects with the Term Facilities except to the extent of variations therefrom prevail with respect to availability, interest period, conditions precedent, representations and warranties, utilisation mechanics, voluntary cancellation and voluntary prepayment, fees, costs and expenses, transfers and amendments and waivers, in each case which relate and (subject as provided below) apply exclusively to the Additional Facility and to the rights and obligations of the Additional Lenders under the Additional Facility (for the avoidance of doubt, however, a breach of any term thereof shall be subject to Clause 27 (Events of Default) for all purposes hereunder, and the Lenders in relation to the Facilities (other than the Additional Facility Lenders) shall have the rights thereof in relation thereto, and any amendments or waivers in relation thereto or to any such provision shall be subject to Clause 43 (Amendments), provided that the Additional Facilities may contain covenants in addition to those contained in Clause 23 (Financial Condition), Clause 24 (Positive Undertakings) and Clause 25 (Negative Undertakings), but such additional covenants shall also then apply, mutatis mutandis, to the other Term Facilities, and provided further that in all such cases no variation from the terms of the Facilities may be made where, if such variation were made by amendment to this Agreement (solely for the purposes of making such variation, without giving effect to the Sixth Amendment), such amendment would require the prior written consent of any Lender under Clause 43.4 (Consents), unless the consent of such Lender has been obtained in writing.
(b) Each Additional Facility Accession Agreement shall set out details of the interest rate, principal amount and term of the proposed Additional Facility and confirm the requirements of paragraph (a) are fulfilled. Each Additional Facility Accession Agreement shall also specify the date upon which the Additional Facility is anticipated to be made available to the relevant Additional Facility Borrower (the “Additional Facility Commencement Date”).
(c) Subject to the conditions in paragraphs (a) and (b) above being met, from the relevant Additional Facility Commencement Date for an Additional Facility, the 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.
(dm) Each Additional Facility Lender shall become a party to this Agreement (and be entitled to share in Noteholder by executing the Security in accordance with the terms of the Finance Documents on the same terms as the Facilities that are being repaid with the proceeds from the relevant Additional Facility) if the Facility Agent executes the relevant Additional Facility Accession Agreement.
(e) Each party to this Agreement (other than each proposed Additional Facility Lender Notice confirms, acknowledges, and agrees, that the Company) irrevocably authorises and instructs the Facility Agent has authority to execute on its behalf any Additional Facility Accession Agreement which amendments or waiver that has been duly completed and signed approved by or on behalf of each proposed the requisite Noteholder or Noteholders in accordance with this Agreement on or prior to the date on which the establishment of the Additional Facility Lenderbecomes effective.
(n) The Agent is authorised by the Group to disclose the terms of any Additional Facility Notice to any of the other Finance Parties and, upon request by the other Finance Parties, will promptly disclose such terms to the other Finance Parties.
(o) Subject to the terms of this Clause 2.3, the Company may pay to an Additional Facility Noteholder a fee or closing payment in the amount and at the times agreed between the Company and the Additional Facility Borrower, and the Parent and each Obligor agrees to be bound by such accessionNoteholder.
(f) The Facility Agent shall only be obliged to execute an Additional Facility Accession Agreement delivered to it if:
(i) the terms of its and the Security Trustee’s compensation and indemnities for any additional administrative or other requirements and costs under the Finance Documents arising in relation to the Additional Facility are satisfactory to it; and
(ii) it is satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable law and regulations in relation to the accession of such Additional Facility Lender.
(g) On the date that the Facility Agent executes an Additional Facility Accession Agreement:
(i) each Additional Facility Lender party to that Additional Facility Accession Agreement, each other Finance Party, the Parent and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had each 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
(ii) each Additional Facility Lender shall become a party to this Agreement as an “Additional Facility Lender”.
(h) The execution by the Company of an Additional Facility Accession Agreement constitutes confirmation by the Parent and each Guarantor that its obligations under Clause 29 (Guarantee and Indemnity) shall continue unaffected, except that those obligations shall extend to the Total Commitments as increased by the addition of each relevant Additional Facility Lender’s Commitment and shall be owed to each Finance Party including such Additional Facility Lender.
(i) 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 2.9 (Additional Facility)) to reflect the terms of each Additional Facility.
Appears in 1 contract
Samples: Notes Purchase Agreement (Membership Collective Group Inc.)
Additional Facility. (a) The Company may notify Borrowers shall have the Facility right at any time so long as (x) no Unmatured Event of Default or Event of Default then exists and (y) Borrowers shall have delivered to Administrative Agent that it wishes a Compliance Certificate for the period of four full Fiscal Quarters immediately preceding the incurrence described below (prepared in good faith and in a manner and using such methodology which is consistent with the most recent financial statements delivered pursuant to establish Section 7.1) giving pro forma effect to such incurrence and evidencing compliance with the covenants set forth in Article IX, and from time to time after the Restatement Date to incur from one or more additional term loan facilities (existing Lenders and/or other Persons that are Eligible Assignees and which, in each an “Additional Facility”) by delivery case, agree to make such loans to the Facility Agent of a duly completed Additional Facility Accession Agreementapplicable Borrower, duly executed by the Company, each Additional Facility Lender for loans and commitments to make loans in an aggregate principal amount not to exceed the Additional Facility Limit, which loans may be incurred as (i) one or more tranches of additional term loans (the “Additional Term Loans”) as allocated by Administrative Agent and Company that are pari passu in all respects to the Term Loans made pursuant to Section 2.1(a) 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 Loan with the then longest Weighted Average Life to Maturity and a final maturity no earlier than the latest existing Term Maturity Date; provided, that the terms and conditions of any Additional Term Loans shall be substantially similar to those applicable to the existing Term Facilities (other than as to pricing, fees and other economic terms), (ii) increases to one or more existing Term Facilities and/or (iii) increases to the Multicurrency Revolving Credit Facility; provided that increases to the Multicurrency Revolving Credit Facility shall not exceed an aggregate of more than $500,000,000 (or the Dollar Equivalent thereof at the time of funding) (collectively, “Additional Facilities”). Any Person which becomes a Lender with respect to a tranche of Additional Term Loans added pursuant to this Section 2.9 (each such Lender, a “New Term Loan Lender”) hereby acknowledges and agrees that the term of the Multicurrency Revolving Facility and each subfacility thereof may be extended or replaced and that each New Term Loan Lender, solely with respect to the Additional Term Loans held by such New Term Lender, agrees in advance to any changes made to this Credit Agreement 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 reasonably proposed to be made by Company (Company’s signature to be conclusive evidence of such reasonability). Each New Term Loan Lender 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 preceding sentence, provided that the foregoing provision shall not be construed to require a New Term Loan Lender to execute any amendment, agreement, instrument or document which contains changes other than those relating solely to such extended or replaced facility or facilities.
(b) In the event that any Borrower for the desires to create an Additional Facility, provided that:
such Borrower will enter into an amendment with the lenders (iwho shall by execution thereof become Lenders hereunder if not theretofore Lenders) no Event of Default is continuing;
(ii) the to provide for such Additional Facility, which amendment shall set forth any terms and conditions of the Additional Facility not covered by this Agreement as agreed by the applicable Borrower and such Lenders, and shall provide that no Utilisation may be made for the issuance of such Additional Facility if, at the time of such Utilisation, an Event of Default is continuing or would result from such Utilisation;
(iii) the Final Maturity Date applicable promissory notes to evidence the Additional Facility shall be no earlier than 3 September 2012 and there shall be no scheduled prior repayments required in relation to the Additional Facility;
(iv) the Additional Facility Borrower for the Additional Facility is an existing Borrower;
(v) the interest rate, fees and related provisions, tax gross-up provisions and indemnity provisions applicable to, and the currency of, the Additional Facility shall be agreed if requested by the Additional Facility Borrower and the Additional Facility Lenders; provided that the Additional Facility Margin may not exceed the sum of:
(A) the highest Applicable Margin payable on the B7 Facility, B8 Facility, B9 Facility, B10 Facility, B11 Facility or B12 Facility; and
(B) 0.75% per annum;
(vi) an amount equal to the Additional Facility Outstandings in relation to any drawing under such Additional Facility shall be applied by the Borrower in irrevocable repayment or prepayment of Outstandings in accordance with Clause 12.5(a)(iii) (Repayment from Debt Proceeds) and Clause 11.3 (Application of Repayments); and
(vii) the terms of the Additional Facility shall be consistent in all material respects with the Term Facilities except to the extent of variations therefrom with respect to availability, interest period, conditions precedent, representations and warranties, utilisation mechanics, voluntary cancellation and voluntary prepayment, fees, costs and expenses, transfers and amendments and waivers, in each case which relate and (subject as provided below) apply exclusively to the Additional Facility and to the rights and obligations of the Additional Lenders making advances under the Additional Facility (which notes shall constitute Term Notes or Multicurrency Revolving Notes, as applicable, for the avoidance purposes of doubt, however, a breach of any term thereof shall be subject to Clause 27 (Events of Default) for all purposes hereunder, and the Lenders in relation to the Facilities (other than the Additional Facility Lenders) shall have the rights thereof in relation thereto, and any amendments or waivers in relation thereto or to any such provision shall be subject to Clause 43 (Amendmentsthis Agreement), provided that the Additional Facilities may contain covenants in addition to those contained in Clause 23 (Financial Condition), Clause 24 (Positive Undertakings) and Clause 25 (Negative Undertakings), but with such additional covenants shall also then apply, mutatis mutandis, to the other Term Facilities, and provided further that in all such cases no variation from the terms of the Facilities may be made where, if such variation were made by amendment to this Agreement (solely for the purposes of making such variation, without giving effect be in form and substance reasonably acceptable to the Sixth Amendment), such amendment would require the prior written consent of any Lender under Clause 43.4 (Consents), unless the consent of such Lender has been obtained in writing.
(b) Each Additional Facility Accession Agreement shall set out details of the interest rate, principal amount Administrative Agent and term of the proposed Additional Facility and confirm the requirements of paragraph (a) are fulfilled. Each Additional Facility Accession Agreement shall also specify the date upon which the Additional Facility is anticipated to be made available to the relevant Additional Facility Borrower (the “Additional Facility Commencement Date”).
(c) Subject to the conditions in paragraphs (a) and (b) above being met, from the relevant Additional Facility Commencement Date for an Additional Facility, the 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.
(d) Each Additional Facility Lender shall become a party to this Agreement (and be entitled to share in the Security in accordance with the terms of the Finance Documents on the same terms as the Facilities that are being repaid with the proceeds from the relevant Additional Facility) if the Facility Agent executes the relevant Additional Facility Accession Agreement.
(e) Each party to this Agreement (other than each proposed Additional Facility Lender and the Company) 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 Additional Facility Lender, the Company and the Additional Facility Borrower, and the Parent and each Obligor agrees to be bound by such accession.
(f) The Facility Agent shall only be obliged to execute an Additional Facility Accession Agreement delivered to it if:
(i) the terms of its and the Security Trustee’s compensation and indemnities for any additional administrative or other requirements and costs under the Finance Documents arising in relation to the Additional Facility are satisfactory to it; and
(ii) it is satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable law and regulations in relation to the accession of such Additional Facility Lender.
(g) On the date that the Facility Agent executes an Additional Facility Accession Agreement:
(i) each Additional Facility Lender party to that Additional Facility Accession Agreement, each other Finance Party, the Parent and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had each 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
(ii) each Additional Facility Lender shall become a party to this Agreement as an “Additional Facility Lender”.
(h) The execution by the Company of an Additional Facility Accession Agreement constitutes confirmation by the Parent and each Guarantor that its obligations under Clause 29 (Guarantee and Indemnity) shall continue unaffected, except that those obligations shall extend to the Total Commitments as increased by the addition of each relevant Additional Facility Lender’s Commitment and shall be owed to each Finance Party including such Additional Facility Lender.
(i) 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 consistent with the terms of this Clause 2.9 Section 2.9(b) and of the other provisions of this Agreement. No consent of any Lender (other than any Lender making loans or whose commitment is increased under the Additional Facility)) is required to reflect permit the terms of each Loans contemplated by this Section 2.9(b) or the aforesaid amendment to effectuate the Additional Facility. This section shall supercede any provisions contained in this Agreement, including, without limitation, Section 12.1, to the contrary.
Appears in 1 contract
Samples: Credit Agreement (Ball Corp)
Additional Facility. (a) The Subject to this Clause 2.3, the Company may notify may, at any time and from time to time following the Closing Date, by delivering to the Agent and the Security Agent a duly completed Additional Facility Agent that it wishes Notice signed by an Authorised Signatory and complying with paragraphs (b) and (c) below, establish an Additional Facility by way of (i) the introduction of a new additional commitment or facility as a Facility under this Agreement or (ii) as an additional tranche of or increase in an existing Facility (including any previously incurred Additional Facility) under this Agreement.
(b) No consent of any Finance Party is required to establish one or more additional term loan facilities an Additional Facility at any time (each other than, in relation to an “Additional Facility”, the relevant Additional Facility Lenders) provided that the Financial Indebtedness under such Additional Facility constitutes Permitted Additional Debt and is designated as “Senior Lender Liabilities” as defined in and for the purposes of the Intercreditor Agreement.
(c) Each Additional Facility Notice shall not be regarded as having been duly completed unless it is signed by delivery the Company and each party thereto and specifies the following matters in respect of such Additional Facility:
(i) the proposed borrower(s) (which, if not a Borrower, shall accede in accordance with Clause 28 (Changes to the Obligors)) and guarantor(s) in respect of the Additional Facility;
(ii) the person(s) to become Additional Facility Lenders (which shall not be a Group Member) in respect of the Additional Facility and the amount of the commitments of such Additional Facility allocated to each Additional Facility Lender (and whether such Lender is a Sponsor Affiliate);
(iii) the aggregate amount of the commitments of the Additional Facility and the currency being made available and any other or optional currency or currencies which are available for utilisation under such Additional Facility;
(iv) the purpose and permitted usage of such Additional Facility and any additional conditions to drawdown of such Additional Facility (which may be as agreed between the Company and the Additional Facility Lenders providing that Additional Facility), including any applicable certain funds period and related conditions;
(v) the rate of interest applicable to the Additional Facility (including any applicable margin, basis, floor and/or margin ratchet) and commitment fee and other fees payable in respect of that Facility;
(vi) the Additional Facility Commencement Date and Availability Period for the Additional Facility;
(vii) the Termination Date, repayment profile, amortisation schedule and any mandatory prepayment provisions; and
(viii) each of the requirements of paragraph (b) above and confirmation of each of the conditions set out in paragraph (b) above are satisfied; and such Additional Facility Notice shall be deemed to have been duly completed if it is signed by each party thereto and specifies the matters in paragraphs (c)(i) to (c)(viii) above in respect of such Additional Facility, and prior to the applicable Additional Facility Commencement Date, without prejudice to the rights of the Agent to request any other information which the Agent or Security Agent may reasonably require in relation to such Additional Facility provided that where the Additional Facility is an additional tranche or class of, or an increase of, or an extension of, any existing Facility or a previously incurred Additional Facility (the Original Facility), then the terms applicable to that Additional Facility set out in paragraph 2 of the Additional Facility Notice shall be the same as those applicable to the Original Facility (other than the identity of the Additional Facility Lenders and the amount of the Additional Facility Commitment).
(d) Subject to the conditions set out in paragraphs (b) and (c) of this Clause 2.3 being satisfied, following receipt by the Agent of a duly completed Additional Facility Accession Agreement, duly executed by Notice and with effect from the Companyrelevant Additional Facility Commencement Date (or any later date on which the conditions set out in paragraph (e) below are satisfied) the relevant Additional Facility shall come into effect and be established in accordance with its terms and:
(i) the Additional Facility Lenders participating in the relevant Additional Facility shall make available that Additional Facility in the aggregate amount set out in the Additional Facility Notice;
(ii) each of the Obligors and each Additional Facility Lender shall assume such obligations towards one another and/or acquire such rights against one another as the Obligors and such Additional Facility Lenders would have assumed and/or acquired had the Additional Facility Lenders been Original Initial Term Facility Lenders;
(iii) in relation to an Additional Facility Lender which is not already a Lender, each Additional Facility Lender under the relevant Additional Facility shall become a Party to this Agreement as a Lender;
(iv) each Additional Facility Lender under the relevant Additional Facility and each of the other Finance Parties shall assume such obligations towards one another and acquire such rights against one another as those Additional Facility Lenders and those Finance Parties would have assumed and/or acquired had the Additional Facility Lenders been Original Initial Term Facility Lenders in respect of the relevant Additional Facility; and
(v) the Commitments of the other Lenders shall continue in full force and effect.
(e) The establishment of an Additional Facility will only be effective on:
(i) the execution of the Additional Facility Notice relating to such Additional Facility by the Company, the relevant Borrower(s) and the relevant Additional Facility Lender(s) and delivery of such executed notice to the Agent;
(ii) in relation to an Additional Facility Lender which is not already a Lender, receipt by the Agent of an Additional Facility Lender Accession Notice from each person referred to in the relevant Additional Facility Notice as an Additional Facility Lender and the accession of each Additional Facility Lender to the Intercreditor Agreement as a “Senior Lender” (as defined in the Intercreditor Agreement); and
(iii) in relation to an Additional Facility Lender which is not already a Lender, the performance by the Agent of all necessary know your customer or other similar checks under all applicable laws and regulations in relation to that Additional Facility Lender making available an Additional Facility, the completion of which the Agent shall promptly notify to the Company, no Utilisation Request in relation to an Additional Facility shall be valid unless prior to (or simultaneously with) the delivery of the relevant Utilisation Request in relation to such Additional Facility, the requirements of this Clause 2.3 have been satisfied.
(f) Each Obligor and the Parent:
(i) irrevocably authorises the Company to sign each Additional Facility Notice and to agree, implement and establish Additional Facilities in accordance with this Agreement on its behalf; and
(ii) confirms that its guarantee and indemnity recorded in Clause 20 (Guarantee and Indemnity) (or any applicable Accession Deed or other Finance Document) and all Transaction Security granted by it will, subject only to any applicable limitations on such guarantee and indemnity referred to in Clause 20 (Guarantee and Indemnity) and any Accession Deed pursuant to which it became an Obligor or the terms of the Transaction Security Documents, extend to include the Additional Facility Loans and any other obligations arising under or in respect of the Additional Facility Commitments.
(g) Each Party irrevocably authorises, empowers and instructs:
(i) the Agent to acknowledge, execute and confirm acceptance of each Additional Facility Notice;
(ii) the Agent and the Security Agent to acknowledge, execute and confirm acceptance of each Additional Facility Lender Accession Notice and if applicable, the documentation required for the Additional Facility Lender to accede to the Intercreditor Agreement; and
(iii) the Agent and the Security Agent to execute any necessary amendments, confirmations, supplements or revisions to this Agreement, the Transaction Security Documents and any other Finance Documents as may be required in order to ensure that any Additional Facility, if legally possible, ranks pari passu with the other Facilities and that the Transaction Security is shared pari passu between the Secured Parties.
(h) The Agent and/or the Security Agent shall as soon as reasonably practicable send to the Company a copy of each executed Additional Facility Notice and, if applicable, Additional Facility Lender Accession Notice and if applicable, the documentation required for the Additional Facility Lender to accede to the Intercreditor Agreement.
(i) By signing an Additional Facility Notice as an Additional Facility Lender, each such entity agrees to commit the Additional Facility Commitments set out against its name in that notice and, in the case of an entity which is not already a party to this Agreement as a Lender, become a Lender and a Party to this Agreement and to the Intercreditor Agreement.
(j) Notwithstanding any provision of a Finance Document to the contrary, there shall be no obligation or requirement to enter into any hedging arrangement or other derivative transaction in relation to any Additional Facility.
(k) Each Additional Facility Lender, by executing the relevant Additional Facility Notice confirms (for the avoidance of doubt) that the Agent has authority to execute on its behalf any consent, release, waiver or amendment 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 relevant Additional Facility becomes effective and that it is bound by that decision and by the operations of any other provisions of this Agreement in relation to such consent, release, waiver or amendment.
(l) No Lender will have any obligation to participate in an Additional Facility (unless it has executed and delivered an Additional Facility Lender Accession Notice or otherwise become an Additional Facility Lender in respect of that Additional Facility). By signing an Additional Facility Notice as an Additional Facility Lender, each such entity agrees to commit the Additional Facility Commitments set out against its name in that Additional Facility Notice.
(m) The Agent may, and is authorised to, disclose the terms of any Additional Facility Notice to any of the other Finance Parties and will do so promptly upon request by the Company or other Finance Parties.
(n) Clause 26.4 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this Clause 2.3 in relation to an Additional Facility Lender as if references in that Clause to:
(i) an Existing Lender were references to all the Lenders immediately prior to the establishment of the relevant Additional Facility;
(ii) the New Lender were references to that Additional Facility Lender; and
(iii) a re-transfer and re-assignment were references to respectively a transfer and assignment.
(o) The Company may pay to an Additional Facility Lender a fee in the amount and at the times agreed between the Company and the Additional Facility Borrower for Lender in a Fee Letter.
(p) The establishment, terms or conditions or use of proceeds of any Additional Facility shall be governed by this Clause 2.3 which shall apply irrespective and notwithstanding any other provision of this Agreement and, except to the extent as provided in this Clause 2.3, the terms applicable to any Additional Facility will be those agreed by the Additional FacilityFacility Lenders in respect of that Additional Facility and the Company and set out in the applicable Additional Facility Notice, provided that:
(i) no Event if there is any inconsistency between any such term agreed in respect of Default is continuingan Additional Facility and any term of a Finance Document, the term agreed in respect of the Additional Facility shall prevail with respect to such Additional Facility (subject to the other terms and conditions of this Clause 2.3);
(ii) unless otherwise specified in the applicable Additional Facility Notice, the terms of the any Additional Facility provide that no Utilisation may which is a term facility shall be made of such Additional Facility if, at the time of such Utilisation, an Event of Default is continuing or would result from such Utilisationsame as the terms given to the Initial Term Facilities under this Agreement;
(iii) the Final Maturity Date applicable provisions of this Agreement will apply to each Additional Facility and the provisions of Clause 4 (Conditions of Utilisation) and Clause 5 (Utilisation - Loans) will apply to all Utilisations of any Additional Facility, provided that no Utilisation Request in relation to an Additional Facility shall be no earlier than 3 September 2012 and there shall be no scheduled valid unless prior repayments required in relation to (or simultaneously with) such Utilisation Request being delivered the Additional Facility;requirements of this Clause 2.3 have been satisfied; and
(iv) the Additional Facility Borrower for the Additional Facility is an existing Borrower;
(v) the interest rate, fees and related provisions, tax gross-up provisions and indemnity provisions applicable to, and the currency of, the any Additional Facility shall be agreed by rank pari passu with the Additional Facility Borrower other Facilities and the Additional Facility Lenders; provided that the Additional Facility Margin may not exceed the sum of:
(A) the highest Applicable Margin payable on the B7 Facility, B8 Facility, B9 Facility, B10 Facility, B11 Facility or B12 Facility; and
(B) 0.75% per annum;
(vi) an amount equal to the Additional Facility Outstandings in relation to any drawing under such Additional Facility shall be applied by the Borrower in irrevocable repayment or prepayment of Outstandings in accordance with Clause 12.5(a)(iii) (Repayment from Debt Proceeds) and Clause 11.3 (Application of Repayments); and
(vii) the terms of the Additional Facility shall be consistent in all material respects with the Term Facilities except and treatment given to the extent of variations therefrom with respect to availability, interest period, conditions precedent, representations and warranties, utilisation mechanics, voluntary cancellation and voluntary prepayment, fees, costs and expenses, transfers and amendments and waivers, in each case which relate and (subject as provided below) apply exclusively to the Additional Facility and to the rights and obligations of the Additional Lenders under the Additional Facility (for the avoidance of doubt, however, a breach of any term thereof shall be subject to Clause 27 (Events of Default) for all purposes hereunder, and the Lenders in relation to the Facilities (other than the Additional Facility Lenders) shall have the rights thereof in relation thereto, and any amendments or waivers in relation thereto or to any such provision shall be subject to Clause 43 (Amendments), provided that the Additional Facilities may contain covenants in addition to those contained in Clause 23 (Financial Condition), Clause 24 (Positive Undertakings) and Clause 25 (Negative Undertakings), but such additional covenants shall also then apply, mutatis mutandis, to the other Term Facilities, and provided further that in all such cases no variation from the terms of the Facilities may be made where, if such variation were made by amendment to this Agreement (solely for the purposes of making such variation, without giving effect to the Sixth Amendment), such amendment would require the prior written consent of any Lender under Clause 43.4 (Consents), unless the consent of such Lender has been obtained in writing.
(b) Each Additional Facility Accession Agreement shall set out details of the interest rate, principal amount and term of the proposed Additional Facility and confirm the requirements of paragraph (a) are fulfilled. Each Additional Facility Accession Agreement shall also specify the date upon which the Additional Facility is anticipated to be made available to the relevant Additional Facility Borrower (the “Additional Facility Commencement Date”).
(c) Subject to the conditions in paragraphs (a) and (b) above being met, from the relevant Additional Facility Commencement Date for an Additional Facility, the 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.
(d) Each Additional Facility Lender shall become a party to this Agreement (and be entitled to share in the Security in accordance with the terms of the Finance Documents on the same terms as the Facilities that are being repaid with the proceeds from the relevant Additional Facility) if the Facility Agent executes the relevant Additional Facility Accession Agreement.
(e) Each party to this Agreement (other than each proposed Additional Facility Lender and the Company) 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 Additional Facility Lender, the Company and the Additional Facility Borrower, and the Parent and each Obligor agrees to be bound by such accession.
(f) The Facility Agent shall only be obliged to execute an Additional Facility Accession Agreement delivered to it if:
(i) the terms of its and the Security Trustee’s compensation and indemnities for any additional administrative more favourable or other requirements and costs under the Finance Documents arising in relation advantageous to the Additional Facility are satisfactory to it; and
(ii) it is satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable law and regulations in relation to the accession lenders of such Additional Facility Lenderthan the Initial Term Facilities (save as contemplated by paragraph (b) above).
(g) On the date that the Facility Agent executes an Additional Facility Accession Agreement:
(i) each Additional Facility Lender party to that Additional Facility Accession Agreement, each other Finance Party, the Parent and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had each 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
(ii) each Additional Facility Lender shall become a party to this Agreement as an “Additional Facility Lender”.
(h) The execution by the Company of an Additional Facility Accession Agreement constitutes confirmation by the Parent and each Guarantor that its obligations under Clause 29 (Guarantee and Indemnity) shall continue unaffected, except that those obligations shall extend to the Total Commitments as increased by the addition of each relevant Additional Facility Lender’s Commitment and shall be owed to each Finance Party including such Additional Facility Lender.
(i) 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 2.9 (Additional Facility)) to reflect the terms of each Additional Facility.
Appears in 1 contract
Samples: Facilities Agreement (New Frontier Public Holding Ltd.)
