Conditions to Utilisation. Save as otherwise provided in this Agreement, an Advance (other than a Swingline Facility Advance or an Incremental Term Facility Advance) will be made by the Lenders to the Borrower or a Documentary Credit will be issued by an L/C Bank at the Borrower’s request if: (a) the Agent has received from the Borrower a duly completed Utilisation Request stating whether the proposed Utilisation is to be by way of Advance or Documentary Credit not later than 9.30 a.m. on a day which is: (i) no more than 10 nor less than 2 Business Days prior to the proposed Utilisation Date for such Advance; or (ii) no more than 10 nor less than 4 Business Days prior to the proposed Utilisation Date for such Documentary Credit, receipt of which shall oblige the Borrower to borrow the amount requested on the date stated upon the terms and subject to the conditions contained in this Agreement provided that no Utilisation Request under the Revolving Facility shall be made prior to the first Utilisation Request under the Term Facilities; (b) the proposed Utilisation Date is a Business Day for the proposed currency of the Advance or Documentary Credit, as the case may be, which is or precedes the relevant Termination Date; (c) in the case of a Utilisation by way of an A Facility Advance, the proposed Euro Amount of such Advance is equal to €120,000,000; (d) in the case of a Utilisation by way of a B1 Facility Advance, the proposed Euro Amount of such Advance is equal to €305,000,000 (it being agreed that the equivalent in dollars is an amount equal to $380,000,000); (e) in the case of a Utilisation by way of a B2 Facility Advance, the proposed Euro Amount of such Advance is equal to €50,000,000; (f) in the case of a Utilisation by way of a Revolving Facility Advance, the proposed Euro Amount of such Advance is (i) equal to the amount of the corresponding Available Revolving Facility (minus the Unavailable Revolving Facility Amount (if any)) or (ii) less than such amount but equal to, or an integral multiple of, €1,000,000; (g) in the case of a Utilisation by way of Documentary Credit, the proposed Euro Amount of such Documentary Credit is equal to or less than the amount of the Available Revolving Facility (minus the Unavailable Revolving Facility Amount (if any)); (h) in the case of a Utilisation by way of a Revolving Facility Advance, (i) at any time prior to the Syndication Date, immediately after the making of such Advance there will be no more than 3 Revolving Facility Advances outstanding and (ii) at any time after the Syndication Date, immediately after the making of such Advance there will be no more than 10 Revolving Facility Advances (for the avoidance of doubt not including any Swingline Facility Advances) outstanding; (i) in the case of a Utilisation by way of a Documentary Credit, the proposed Term of the Documentary Credit is a period not exceeding 364 days, ending on or before the Termination Date in respect of the Revolving Facility; (j) in the case of a Utilisation by way of a Revolving Facility Advance, the proposed Term of such Revolving Facility Advance is a period of one week, two weeks, or 1, 2, 3 or 6 months or such other period as the Agent may agree, and ends on or before the Final Maturity Date of the Revolving Facility provided that, save as the Agent may otherwise agree, prior to the Syndication Date the Term of each Revolving Facility Advance shall be 1 week or 1 month (or, such duration as is necessary to ensure that such Term ends on the Syndication Date); (k) in the case of a Utilisation by way of an Advance other than a Rollover Advance, the interest rate applicable to such Advance’s first Interest Period or Term (as the case may be) will not have to be determined under Clause 16 (Market Disruption and Alternative Interest Rates); (l) in the case of a Utilisation by way of a Documentary Credit, the L/C Bank and the Agent have each approved the terms of such Documentary Credit (which, unless the Agent and the L/C Bank otherwise agree in writing, shall be in such form customarily used by the L/C Bank or in such other form as has been approved by the L/C Bank and shall specify the purpose of its issue, the name and address of the Beneficiary of it, the Beneficiary’s receiving bank account and its Expiry Date); (m) in the case of any Utilisation: (i) in the case of a Rollover Advance or a Documentary Credit which is being renewed pursuant to Clause 5.2 (Renewal of Documentary Credits), no Event of Default is continuing or would result from the proposed Rollover Advance or the renewal of that Documentary Credit and, in the case of any other Utilisation, no Default is continuing or would result from the proposed Utilisation; and (ii) save in the case of a Rollover Advance, the Repeating Representations made by each Obligor are true and correct in all material respects on the relevant Utilisation Date by reference to the circumstances then existing; and (n) in relation to the first Utilisation requested under this Agreement, the Agent is reasonably satisfied that the Parent will comply with its obligations under Clause 3.2 (Conditions Subsequent).
Appears in 3 contracts
Samples: Senior Facilities Agreement (Moore Labels Inc), Senior Facilities Agreement (Buhrmann Nv), Senior Facilities Agreement (Buhrmann Nv)
Conditions to Utilisation. Save as otherwise provided in this Agreement, an Advance (other than a Swingline Facility Advance or an Incremental Term Facility Advance) will be made by the Lenders to the a Borrower or a Documentary Credit will be issued by an L/C Bank at the a Borrower’s (other than the US Borrower’s) request if:
(a) in the case of an Advance, the Facility Agent has received from the such Borrower a duly completed Utilisation Request stating whether in the proposed relevant form, and in the case of a Documentary Credit, both the Facility Agent and the L/C Bank have received from a Borrower (other than the US Borrower) a duly completed Utilisation Request in the relevant form, in each case, no earlier than the day which is to be by way 10 Business Days and no later than 2:00 p.m. on the day which is 3 Business Days (or in the case of Advance or any Documentary Credit which is not or will not be in the form of Schedule 12 (Form of Documentary Credit), no later than 9.30 a.m. 2:00 p.m. on a the day which is:
(iis 5 Business Days) no more than 10 nor less than 2 Business Days prior to the proposed Utilisation Date for such Advance; or
(ii) no more than 10 nor less than 4 Business Days prior to the proposed Utilisation Date for such Advance or Documentary Credit, receipt of which shall oblige the such Borrower to borrow utilise the amount requested on the date Utilisation Date stated therein upon the terms and subject to the conditions contained in this Agreement provided that no Utilisation Request under the Revolving Facility shall be made prior to the first Utilisation Request under the Term FacilitiesAgreement;
(b) the proposed Utilisation Date is a Business Day for the proposed currency of the Advance or Documentary Credit, as the case may be, which is or precedes the relevant Termination Date;
(c) in the case of a Utilisation by way of an A Term Facility Advance, such Utilisation would result in the proposed Euro Amount maximum principal amount of such the Term Facility Advance is equal to €120,000,000;
(d) being utilised, or in the case of a Utilisation by way of a B1 RCF Facility Advance, such Utilisation occurs on or after the maximum principal amount of the Term Facility being utilised and, the proposed Euro Sterling Amount of such Advance is equal to €305,000,000 (it being agreed that the equivalent in dollars is an amount equal to $380,000,000);
(e) in the case of a Utilisation by way of a B2 RCF Facility Advance, the proposed Euro Amount of such Advance is equal to €50,000,000;
(f) in the case of a Utilisation by way of a Revolving Facility Advance, the proposed Euro Amount of such Advance is (i) equal to the amount of the corresponding Available Revolving RCF Facility (minus the Unavailable Revolving Facility Amount (if any)) Commitment at such time, or (ii) less than such amount but equal toto a minimum of £5 million, or an integral multiple of, €1,000,000of £1 million;
(gd) in the case of a Utilisation by way of Documentary Credit, the proposed Euro Sterling Amount of such Documentary Credit is (i) equal to or less than the amount of the Available Revolving RCF Facility or (minus ii) less than such amount but equal to or more than £1 million or such lesser amount as the Unavailable Revolving Facility Amount (if any))L/C Bank may agree;
(he) in the case of a Utilisation by way of a Revolving an RCF Facility Advance, :
(i) at any time prior to the Syndication DateTermination Date in respect of the Revolving Facility, immediately after the making of such Advance there will be no more than 3 Revolving Facility Advances outstanding and Secondary Revolving Facility shall be utilised at all times together, pro rata to the respective Commitments thereunder, as if such Facilities were one Facility; and
(ii) at any time after the Syndication Date, immediately after the making of such Advance there will be no more than 10 Revolving Facility Advances (for the avoidance of doubt not including any Swingline and 10 Secondary Revolving Facility Advances) Advances then outstanding;
(if) in the case of a Utilisation by way of a Documentary Credit, the proposed Term of the Documentary Credit ends on or before the Final Maturity Date in respect of the Revolving Facility (if the Utilisation Date is a period not exceeding 364 days, ending prior to such Final Maturity Date) or on or before the Termination Date in respect of the Secondary Revolving Facility (if the Utilisation Date is after the Final Maturity Date of the Revolving Facility);
(jg) in the case of a Utilisation by way of a Revolving an RCF Facility Advance, the proposed Term of such Revolving Facility Advance is a period of one week, two weeks, or 1, 2, 3 or 6 months or such other period of up to 12 months as all the Agent Lenders having a Revolving Facility Commitment or Secondary Revolving Facility Commitment may agreeagree prior to submission of the relevant Utilisation Request, and ends on or before the Final Maturity Date in respect of the Revolving Facility (or, if the Utilisation Date is after such Final Maturity Date, the Final Maturity Date in respect of the Secondary Revolving Facility), provided that, save as the Agent Bookrunners may otherwise agree, prior to the Syndication Date Date, the Term of each Revolving Facility Advance and Secondary Revolving Facility Advance shall be 1 week or 1 month (or, if less, such duration as is necessary to ensure that such Term ends on the Syndication Date);
(kh) in the case of a Utilisation by way of an Advance (other than a Rollover Advance), the interest rate applicable to such Advance’s first Interest Period or Term (as the case may be) will not have to be determined under Clause 16 15 (Market Disruption and Alternative Interest Rates);
(li) in the case of a Utilisation by way of a Documentary Credit which is not substantially in the form set out in Schedule 12 (Form of Documentary Credit), the L/C Bank and the Agent shall have each approved the terms of such Documentary Credit (which, unless the Agent and the L/C Bank otherwise agree in writing, shall be in such form customarily used by the L/C Bank or in such other form as has been approved by the L/C Bank and shall specify the purpose of its issue, the name and address of the Beneficiary of it, the Beneficiary’s receiving bank account and its Expiry Dateacting reasonably);; and
(mj) in the case of any Utilisation, on the date of the Utilisation Request, the date of any Conversion Notice and the proposed Utilisation Date:
(i) in the case of a Rollover Advance or a Documentary Credit which is being renewed pursuant to Clause 5.2 (Renewal of Documentary Credits), no the Facility Agent shall not have received instructions from a Revolving Facility Instructing Group requiring the Facility Agent to refuse such rollover or renewal of a Documentary Credit by reason of an Event of Default having occurred which is continuing or would result from the proposed Rollover Advance or the renewal of that Documentary Credit and, Credit; or
(ii) in the case of any Utilisation other than that referred to in sub-paragraph (i):
(A) in the case of the first Utilisation of any Facility, subject to the provisions of Clause 3.5 (Vanilla Certain Funds Period), all representations set out in Clause 21 (Representations and Warranties) made by each of the persons identified as making those representations are true in all material respects by reference to the circumstances then existing and no Default is continuing or would result from the proposed Utilisation;
(B) in the case of any Utilisation under the A1 Facility and B1 Facility, subject to the provisions of Clause 3.6 (Baseball Certain Funds Period), the Repeating Representations made by the persons identified as making those representations are true in all material respects by reference to the circumstances then existing and no Default is continuing or would result from the proposed Utilisation;
(C) in the case of any Utilisation under the B2 Facility, B3 Facility, B4 Facility, B5 Facility and B6 Facility, the Repeating Representations made by the persons identified as making those representations are true in all material respects by reference to the circumstances then existing and no Default is continuing or would result from the proposed Utilisation;
(D) in the case of any Utilisation under the C Facility, the Repeating Representations made by the persons identified as making those representations are true in all material respects by reference to the circumstances then existing and no Default is continuing or would result from the proposed Utilisation; andor
(iiE) save in the case of a Rollover Advanceany Utilisation under the Additional Facility, the Repeating Representations made by each Obligor the persons identified as making those representations are true and correct in all material respects on the relevant Utilisation Date by reference to the circumstances then existing; and
(n) in relation to existing and no Default is continuing or would result from the first Utilisation requested under this Agreement, the Agent is reasonably satisfied that the Parent will comply with its obligations under Clause 3.2 (Conditions Subsequent)proposed Utilisation.
Appears in 3 contracts
Samples: Senior Facilities Agreement (Virgin Media Inc.), Senior Facilities Agreement (Virgin Media Inc.), Senior Facilities Agreement (Virgin Media Inc.)
Conditions to Utilisation. Save as otherwise provided in this Agreement, an Advance (other than a Swingline Facility Advance or an Incremental Term Facility Advance) will be made by the Lenders to the a Borrower or a Documentary Credit will be issued by an L/C Bank at the a Borrower’s request if:
(a) the Agent has received from the relevant Borrower a duly completed Utilisation Request stating whether the proposed Utilisation is to be by way of Advance or Documentary Credit not later than 9.30 a.m. on a day which is:
(i) no more than 10 nor less than 2 Business Days prior to the proposed Utilisation Date for such Advance; or
(ii) no more than 10 nor less than 4 Business Days prior to the proposed Utilisation Date for such Documentary Credit, receipt of which shall oblige the that Borrower to borrow the amount requested on the date stated upon the terms and subject to the conditions contained in this Agreement provided that no Utilisation Request under the Revolving Facility shall be made prior to the first Utilisation Request under the Term Facilities;
(b) the proposed Utilisation Date is a Business Day for the proposed currency of the Advance or Documentary Credit, as the case may be, which is or precedes the relevant Termination Date;
(c) in the case of a Utilisation by way of an A Facility Advance, the proposed Euro Amount of such Advance is equal to €120,000,000;
(d) in the case of a Utilisation by way of a B1 D1 Facility AdvanceAdvance prior to the Sixth Amendment and Restatement Effective Date, the proposed Euro Amount of such Advance is equal to €305,000,000 (it being agreed that the equivalent in dollars is an amount equal to $380,000,000);
(e) in the case of the Utilisation by way of D1 Facility Advance in relation to the Anton Acquisition Funds, the proposed amount of such Advance is equal to the total amount of the relevant Anton Acquisition Funds;
(f) in the case of a Utilisation by way of a B2 D2 Facility Advance, Advance the proposed Euro Amount of such Advance is equal to €50,000,000;
(fg) in the case of a Utilisation by way of a Revolving Facility Advance, the proposed Euro Amount of such Advance is (i) equal to the amount of the corresponding Available Revolving Facility (minus the Unavailable Revolving Facility Amount (if any)) or (ii) less than such amount but equal to, or an integral multiple of, €1,000,000;
(gh) in the case of a Utilisation by way of Documentary Credit, the proposed Euro Amount of such Documentary Credit is equal to or less than the amount of the Available Revolving Facility (minus the Unavailable Revolving Facility Amount (if any));
(hi) in the case of a Utilisation by way of a Revolving Facility Advance, (i) at any time prior to the Syndication Date, immediately after the making of such Advance there will be no more than 3 Revolving Facility Advances outstanding and (ii) at any time after the Syndication Date, immediately after the making of such Advance there will be no more than 10 Revolving Facility Advances (for the avoidance of doubt not including any Swingline Facility Advances) outstanding;
(ij) in the case of a Utilisation by way of a Documentary Credit, the proposed Term of the Documentary Credit is a period not exceeding 364 days, ending on or before the Termination Date in respect of the Revolving Facility;
(jk) in the case of a Utilisation by way of a Revolving Facility Advance, the proposed Term of such Revolving Facility Advance is a period of one week, two weeks, or 1, 2, 3 or 6 months or such other period as the Agent may agree, and ends on or before the Final Maturity Date of the Revolving Facility provided that, save as the Agent may otherwise agree, prior to the Syndication Date the Term of each Revolving Facility Advance shall be 1 week or 1 month (or, such duration as is necessary to ensure that such Term ends on the Syndication Date);
(kl) in the case of a Utilisation by way of an Advance other than a Rollover Advance, the interest rate applicable to such Advance’s first Interest Period or Term (as the case may be) will not have to be determined under Clause 16 (Market Disruption and Alternative Interest Rates);
(lm) in the case of a Utilisation by way of a Documentary Credit, the L/C Bank and the Agent have each approved the terms of such Documentary Credit (which, unless the Agent and the L/C Bank otherwise agree in writing, shall be in such form customarily used by the L/C Bank or in such other form as has been approved by the L/C Bank and shall specify the purpose of its issue, the name and address of the Beneficiary of it, the Beneficiary’s receiving bank account and its Expiry Date);
(mn) in the case of any Utilisation:
(i) in the case of a Rollover Advance or a Documentary Credit which is being renewed pursuant to Clause 5.2 (Renewal of Documentary Credits), no Event of Default is continuing or would result from the proposed Rollover Advance or the renewal of that Documentary Credit and, in the case of any other Utilisation, no Default is continuing or would result from the proposed Utilisation; and
(ii) save in the case of a Rollover Advance, the Repeating Representations made by each Obligor are true and correct in all material respects on the relevant Utilisation Date by reference to the circumstances then existing; and
(no) in relation to the first Utilisation requested under this Agreement, the Agent is reasonably satisfied that the Parent will comply with its obligations under Clause 3.2 (Conditions Subsequent).
Appears in 2 contracts
Samples: Senior Facilities Agreement (Corporate Express N.V.), Senior Facilities Agreement (Buhrmann Nv)
Conditions to Utilisation. Save as otherwise provided in this Agreement, an Advance (other than a Swingline Facility Advance or an Incremental Term Facility Advance) will be made by the Lenders to the a Borrower or a Documentary Credit will be issued by an L/C Bank at the a Borrower’s request if:
(a) in the case of an Advance, the Facility Agent has received from the such Borrower a duly completed Utilisation Request stating whether in the proposed relevant form, and in the case of a Documentary Credit, both the Facility Agent and the relevant L/C Bank have received from a Borrower a duly completed Utilisation Request in the relevant form, in each case, no earlier than the day which is to be by way 10 Business Days and no later than 2:00 p.m. on the day which is 3 Business Days (or in the case of Advance or any Documentary Credit which is not or will not be in the form of Schedule 12 (Form of Documentary Credit), no later than 9.30 a.m. 2:00 p.m. on a the day which is:
(iis 3 Business Days) no more than 10 nor less than 2 Business Days prior to the proposed Utilisation Date for such Advance; or
(ii) no more than 10 nor less than 4 Business Days prior to the proposed Utilisation Date for such Advance or Documentary Credit, receipt of which shall oblige the such Borrower to borrow utilise the amount requested on the date Utilisation Date stated therein upon the terms and subject to the conditions contained in this Agreement provided that no Utilisation Request under the Revolving Facility shall be made prior to the first Utilisation Request under the Term FacilitiesAgreement;
(b) the proposed Utilisation Date is a Business Day for the proposed currency of the Advance or Documentary Credit, as the case may be, which is or precedes the relevant Termination Date;
(c) in the case of a proposed Utilisation by way of an Date for the A Facility Advance, Advance and all B Facilities Advances falls on the proposed Euro Amount of such Advance is equal to €120,000,000same Business Day;
(d) in the case of a Utilisation by way of a B1 Term Facility Advance, such Utilisation would result in the maximum principal amount of the Term Facility Advance being utilised, or in the case of a Utilisation by way of a Revolving Facility Advance, such Utilisation occurs on or after the maximum principal amount of the A Facility being utilised and, the proposed Euro Sterling Amount (or its equivalent) of such Revolving Facility Advance is (i) equal to €305,000,000 the amount of the Available Revolving Facility Commitment at such time, or (it being agreed that the equivalent in dollars is an ii) less than such amount but equal to $380,000,000)a minimum of £5 million, or an integral multiple of £1 million;
(e) the Utilisation Date for a Revolving Facility Advance is on a date not earlier than the Utilisation Date for the A Facility Advance and the B Facility Advances;
(f) in the case of a Utilisation by way of a B2 Facility AdvanceDocumentary Credit, the proposed Euro Sterling Amount (or its equivalent) of such Advance Documentary Credit is equal to €50,000,000or more than £1 million or such lesser amount as the relevant L/C Bank may agree (acting reasonably);
(fg) in the case of a Utilisation by way of a Revolving Facility Advance, the proposed Euro Amount of such Advance is (i) equal to the amount of the corresponding Available Revolving Facility (minus the Unavailable Revolving Facility Amount (if any)) or (ii) less than such amount but equal to, or an integral multiple of, €1,000,000;
(g) in the case of a Utilisation by way of Documentary Credit, the proposed Euro Amount of such Documentary Credit is equal to or less than the amount of the Available Revolving Facility (minus the Unavailable Revolving Facility Amount (if any));
(h) in the case of a Utilisation by way of a Revolving Facility Advance, (i) at any time prior to the Syndication Date, immediately after the making of such Advance there will be no more than 3 25 Revolving Facility Advances outstanding and (ii) at any time after the Syndication Date, immediately after the making of such Advance there will be no more than 10 Revolving Facility Advances (for the avoidance of doubt not including any Swingline Facility Advances) then outstanding;
(ih) in the case of a Utilisation by way of a Documentary Credit, the proposed Term of the Documentary Credit is a period not exceeding 364 days, ending ends on or before the Termination Final Maturity Date in respect of the Revolving Facility and immediately after the making of such Utilisation there will be no more than 25 Documentary Credits then outstanding;
(i) in the case of a Utilisation by way of a Revolving Facility Advance, the proposed Term of such Advance is a period of 1, 2, 3 or 6 months or such other period of up to 12 months as all the Lenders having a Revolving Facility Commitment may agree prior to submission of the relevant Utilisation Request, and ends on or before the Final Maturity Date in respect of the Revolving Facility;
(j) in the case of a Utilisation by way of a Revolving Facility Advance, the proposed Term of such Revolving Facility Advance is a period of one week, two weeks, or 1, 2, 3 or 6 months or such other period as the Agent may agree, and ends on or before the Final Maturity Date of the Revolving Facility provided that, save as the Agent may otherwise agree, prior to the Syndication Date the Term of each Revolving Facility Advance shall be 1 week or 1 month (or, such duration as is necessary to ensure that such Term ends on the Syndication Date);
(k) in the case of a Utilisation by way of an Advance (other than a Rollover Advance), the interest rate applicable to such Advance’s first Interest Period or Term (as the case may be) will not have to be determined under Clause 16 15 (Market Disruption and Alternative Interest Rates);
(lk) in the case of a Utilisation by way of a Documentary Credit which is not substantially in the form set out in Schedule 12 (Form of Documentary Credit), the relevant L/C Bank and the Agent shall have each approved the terms of such Documentary Credit (which, unless the Agent and the L/C Bank otherwise agree in writing, shall be in such form customarily used by the L/C Bank or in such other form as has been approved by the L/C Bank and shall specify the purpose of its issue, the name and address of the Beneficiary of it, the Beneficiary’s receiving bank account and its Expiry Dateacting reasonably);; and
(ml) in the case of any Utilisation, on the date of the Utilisation Request, the date of any Conversion Notice and the proposed Utilisation Date:
(i) in the case of a Rollover Advance or a Documentary Credit which is being renewed pursuant to Clause 5.2 (Renewal of Documentary Credits), no Event of Default is continuing the Facility Agent shall not have received instructions from a Revolving Facility Instructing Group requiring the Facility Agent to refuse such rollover or would result from the proposed Rollover Advance or the renewal of that a Documentary Credit and, by reason of the Acceleration Date having occurred; or
(ii) in the case of any Utilisation other Utilisationthan that referred to in sub-paragraph (i) above, the Repeating Representations made by the persons identified as making those representations are true in all material respects by reference to the circumstances then existing and no Default is continuing or would result from the proposed Utilisation; and
(ii) save in the case of a Rollover Advance, the Repeating Representations made by each Obligor are true and correct in all material respects on the relevant Utilisation Date by reference to the circumstances then existing; and
(n) in relation to the first Utilisation requested under this Agreement, the Agent is reasonably satisfied that the Parent will comply with its obligations under Clause 3.2 (Conditions Subsequent).
Appears in 2 contracts
Samples: Senior Facilities Agreement (VMWH LTD), Senior Facilities Agreement (Virgin Media Inc.)
Conditions to Utilisation. Save as otherwise provided in this Agreement, an Advance (other than a Swingline Facility Advance or an Incremental Term Facility Advance) will be made by the Lenders to the Borrower or a Documentary Credit will be issued by an L/C Bank at the Borrower’s request if:
(a) in the case of an Advance, the Facility Agent has received from the Borrower a duly completed Utilisation Request stating whether in the proposed relevant form, and in the case of a Documentary Credit, both the Facility Agent and the L/C Bank have received from the Borrower a duly completed Utilisation Request in the relevant form, in each case, no earlier than the day which is to be by way 10 Business Days and no later than 2:00 p.m. on the day which is 3 Business Days (or in the case of Advance or any Documentary Credit which is not or will not be in the form of Schedule 12 (Form of Documentary Credit), no later than 9.30 a.m. 2:00 p.m. on a the day which is:
(iis 5 Business Days) no more than 10 nor less than 2 Business Days prior to the proposed Utilisation Date for such Advance; or
(ii) no more than 10 nor less than 4 Business Days prior to the proposed Utilisation Date for such Advance or Documentary Credit, receipt of which shall oblige the Borrower to borrow utilise the amount requested on the date Utilisation Date stated therein upon the terms and subject to the conditions contained in this Agreement provided that no Utilisation Request under the Revolving Facility shall be made prior to the first Utilisation Request under the Term FacilitiesAgreement;
(b) the proposed Utilisation Date is a Business Day for the proposed currency of the Advance or Documentary Credit, as the case may be, which is or precedes the relevant Termination Date;
(c) in the case of a Utilisation by way of an A Term Facility Advance, the proposed Euro Amount of such Advance is equal to €120,000,000;
(d) Utilisation would result in the case maximum principal amount of a Utilisation by way of a B1 each Term Facility AdvanceAdvance being utilised, the proposed Euro Amount of such Advance is equal to €305,000,000 (it being agreed that the equivalent in dollars is an amount equal to $380,000,000);
(e) in the case of a Utilisation by way of a B2 Facility Advance, the proposed Euro Amount of such Advance is equal to €50,000,000;
(f) or in the case of a Utilisation by way of a Revolving Facility Advance, the proposed Euro Sterling Amount of such Revolving Facility Advance is (i) equal to the amount of the corresponding Available Revolving Facility (minus the Unavailable Revolving Facility Amount (if any)) Commitment at such time, or (ii) less than such amount but equal to, or an integral multiple of, €1,000,000of £10 million;
(gd) in the case of a Utilisation by way of Documentary Credit, the proposed Euro Sterling Amount of such Documentary Credit is (i) equal to or less than the amount of the Available Revolving Facility or (minus ii) less than such amount but equal to or more than £1 million or such lesser amount as the Unavailable Revolving Facility Amount (if any))L/C Bank may agree;
(he) in the case of a Utilisation by way of a Revolving Facility Advance, (i) at any time prior to the Syndication Date, immediately after the making of such Advance there will be no more than 3 Revolving Facility Advances outstanding and (ii) at any time after the Syndication Date, immediately after the making of such Advance there will be no more than 10 Revolving Facility Advances (for the avoidance of doubt not including any Swingline Facility Advances) outstanding;
(if) in the case of a Utilisation by way of a Documentary Credit, the proposed Term of the Documentary Credit is a period not exceeding 364 days, ending ends on or before the Termination Date in respect of the Revolving Facility;
(jg) in the case of a Utilisation by way of a Revolving Facility Advance, the proposed Term of such Revolving Facility Advance is a period of one week, two weeks, or 1, 2, 3 or 6 months or such other period as the Facility Agent may agreeagree (provided that in respect of any period of more than 6 months, the Facility Agent shall obtain the prior consent of the Lenders), and ends on or before the Final Maturity Date in respect of the Revolving Facility provided that, save as the Agent Mandated Lead Arrangers may otherwise agree, prior to the Syndication Date Date, the Term of each Revolving Facility Advance shall be 1 week or 1 month (or, if less, such duration as is necessary to ensure that such Term ends on the Syndication Date);
(kh) in the case of a Utilisation by way of an Advance (other than a Rollover Advance), the interest rate applicable to such Advance’s first Interest Period or Term (as the case may be) will not have to be determined under Clause 16 15 (Market Disruption and Alternative Interest Rates);
(li) in the case of a Utilisation by way of a Documentary Credit which is not substantially in the form set out in Schedule 12 (Form of Documentary Credit), the L/C Bank and the Facility Agent shall each have each approved the terms of such Documentary Credit (which, unless the Agent and the L/C Bank otherwise agree in writing, shall be in such form customarily used by the L/C Bank or in such other form as has been approved by the L/C Bank and shall specify the purpose of its issue, the name and address of the Beneficiary of it, the Beneficiary’s receiving bank account and its Expiry Date)Credit;
(mj) in the case of a Utilisation by way of a Revolving Facility Advance upon and following an Integrated Merger Event, such Utilisation is made in accordance with the provisions of the Pari Passu Intercreditor Agreement; and
(k) in the case of any Utilisation, on the date of the Utilisation Request, the date of any Conversion Notice and the proposed Utilisation Date:
(i) in the case of a Rollover Advance or a Documentary Credit which is being renewed pursuant to Clause 5.2 (Renewal of Documentary Credits), no the Facility Agent shall not have received instructions from an Instructing Group requiring the Facility Agent to refuse such rollover or renewal of a Documentary Credit by reason of an Event of Default having occurred which is continuing or would result from the proposed Rollover Advance or the renewal of that Documentary Credit and, Credit; or
(ii) in the case of any Utilisation other Utilisationthan that referred to in sub-paragraph (i):
(A) in the case of the first Utilisation (except to the extent such first Utilisation occurs on the date immediately after the date of this Agreement), all representations set out in Clause 21 (Representations and Warranties) made by each of the persons identified as making those representations are true in all material respects by reference to the circumstances then existing and no Default is continuing or would result from the proposed Utilisation; andor
(iiB) save in the case of a Rollover Advanceany other Utilisation, the Repeating Representations made by each Obligor the persons identified as making those representations are true and correct in all material respects on the relevant Utilisation Date by reference to the circumstances then existing; and
(n) in relation to existing and no Default is continuing or would result from the first Utilisation requested under this Agreement, the Agent is reasonably satisfied that the Parent will comply with its obligations under Clause 3.2 (Conditions Subsequent)proposed Utilisation.
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Conditions to Utilisation. Save as otherwise provided in this Agreement, an Advance (other than a Swingline Facility Advance or an Incremental Term Facility Advance) will be made by the Lenders to the a Borrower or a Documentary Credit will be issued by an L/C Bank at the a Borrower’s request if:
(a) in the case of an Advance, the Facility Agent has received from such Borrower or, in the case of the US Borrower, the Parent or the US Borrower a duly completed Utilisation Request stating whether in the proposed relevant form, and in the case of a Documentary Credit, both the Facility Agent and the relevant L/C Bank have received from a Borrower a duly completed Utilisation is to be by way of Advance or Documentary Credit not later Request in the relevant form, in each case, no earlier than 9.30 a.m. on a the day which is:
(i) no more than is 10 nor less than 2 Business Days prior to the proposed requested Utilisation Date for such Advance; or
and, unless otherwise agreed with the Facility Agent (iiand, in relation to a Documentary Credit only, the L/C Bank) no more later than 10 nor less than 4 Business Days prior to the proposed Utilisation Date for such Documentary CreditSpecified Time, receipt of which shall oblige such Borrower or the US Borrower (as applicable) to borrow utilise the amount requested on the date Utilisation Date stated therein upon the terms and subject to the conditions contained in this Agreement provided that no Utilisation Request under the Revolving Facility shall be made prior to the first Utilisation Request under the Term FacilitiesAgreement;
(b) in the case of an Advance under the EUR B3 Facility or the US$ B3 Facility, for the purposes of a Margin Ratchet calculation the Facility Agent has received from the Parent a certificate signed by an authorised officer of the Parent establishing at the date of such certificate the ratios of (i) Senior Net Debt to Annualised EBITDA and (ii) Total Net Debt to Annualised EBITDA, in each case, for the immediately preceding Ratio Period but after giving pro forma effect to such Advance and the use of any proceeds of such Advance;
(c) the proposed Utilisation Date is a Business Day for the proposed currency of the Advance or Documentary Credit, as the case may be, which is within the Availability Period and is or precedes the relevant Termination Date;
(cd) in the case as a result of a Utilisation by way of an A Facility Advance, the proposed Euro Amount of such Advance is equal to €120,000,000;Utilisation:
(di) in the case of a Utilisation by way of a US$ B1 Facility Advance, immediately after the proposed Euro Amount making of such Advance is equal to €305,000,000 (it being agreed that the equivalent in dollars is an amount equal to $380,000,000)there will be no more than 10 US$ B1 Facility Loans outstanding;
(eii) in the case of a Utilisation by way of a EUR B1 Facility Advance, immediately after the making of such Advance there will be no more than 10 EUR B1 Facility Loans outstanding;
(iii) in the case of a Utilisation by way of a US$ B2 Facility Advance, immediately after the proposed Euro Amount making of such Advance is equal to €50,000,000there will be no more than 10 US$ B2 Facility Loans outstanding;
(fiv) in the case of a Utilisation by way of a EUR B2 Facility Advance, immediately after the making of such Advance there will be no more than 10 EUR B2 Facility Loans outstanding;
(v) in the case of a Utilisation by way of a US$ B3 Facility Advance, immediately after the making of such Advance there will be no more than 10 US$ B3 Facility Loans outstanding;
(vi) in the case of a Utilisation by way of a EUR B3 Facility Advance, immediately after the making of such Advance there will be no more than 10 EUR B3 Facility Loans outstanding; and
(vii) in the case of a Utilisation by way of a Revolving Facility Advance, immediately after the making of such Advance there will be no more than 25 Revolving Facility Advances then outstanding;
(e) in the case of a Utilisation by way of a Revolving Facility Advance, the proposed Euro Amount (or its equivalent) of such Revolving Facility Advance is (i) equal to the amount of the corresponding Available Revolving Facility (minus the Unavailable Revolving Facility Amount (if any)) or Commitment at such time, (ii) less than such amount but equal toto a minimum of €5,000,000, or an integral multiple ofof €1,000,000 or (iii) in relation to an RCF2 Facility Refinancing Advance, €1,000,000equal to the amount required to provide for the repayment in full of the RCF2 Facility;
(f) the Utilisation Date for a Revolving Facility Advance is on a date not earlier than the first Utilisation Date for the US$ B1 Facility Advance;
(g) in the case of a Utilisation by way of Documentary Credit, the proposed Euro Amount (or its equivalent) of such Documentary Credit is equal to or less more than €1,000,000 or such lesser amount as the amount of the Available Revolving Facility relevant L/C Bank may agree (minus the Unavailable Revolving Facility Amount (if any)acting reasonably);
(h) in the case of a Utilisation by way of a Revolving Facility Advance, (i) at any time prior to the Syndication Date, immediately after the making of such Advance there will be no more than 3 Revolving Facility Advances outstanding and (ii) at any time after the Syndication Date, immediately after the making of such Advance there will be no more than 10 Revolving Facility Advances (for the avoidance of doubt not including any Swingline Facility Advances) outstanding;
(i) in the case of a Utilisation by way of a Documentary Credit, the proposed Term of the Documentary Credit is a period not exceeding 364 days, ending on or before the Termination Date in respect of the Revolving Facility;
(j) in the case of a Utilisation by way of a Revolving Facility Advance, the proposed Term of such Revolving Facility Advance is a period of one week, two weeks, or 1, 2, 3 or 6 months or such other period as the Agent may agree, and ends on or before the Final Maturity Date in respect of the Revolving Facility provided that, save as and immediately after the Agent may otherwise agree, prior to the Syndication Date the Term making of each Revolving Facility Advance shall such Utilisation there will be 1 week or 1 month (or, such duration as is necessary to ensure that such Term ends on the Syndication Date)no more than 25 Documentary Credits then outstanding;
(k) in the case of a Utilisation by way of an Advance other than a Rollover Advance, the interest rate applicable to such Advance’s first Interest Period or Term (as the case may be) will not have to be determined under Clause 16 (Market Disruption and Alternative Interest Rates);
(li) in the case of a Utilisation by way of a Documentary Credit which is not substantially in the form set out in Schedule 13 (Form of Documentary Credit), the relevant L/C Bank and the Agent shall have each approved the terms of such Documentary Credit (which, unless the Agent and the L/C Bank otherwise agree in writing, shall be in such form customarily used by the L/C Bank or in such other form as has been approved by the L/C Bank and shall specify the purpose of its issue, the name and address of the Beneficiary of it, the Beneficiary’s receiving bank account and its Expiry Dateacting reasonably);; and
(mj) in the case of any Utilisation, on the date of the Utilisation Request, the date of any Conversion Notice and the proposed Utilisation Date:
(i) in the case of a Rollover Advance or a Documentary Credit which is being renewed pursuant to Clause 5.2 7.2 (Renewal of Documentary Credits), no Event of Default is continuing the Facility Agent shall not have received instructions from a Revolving Facility Instructing Group, requiring the Facility Agent to refuse such rollover or would result from the proposed Rollover Advance or the renewal of that a Documentary Credit by reason of the Acceleration Date having occurred; and,
(ii) in the case of any Utilisation other Utilisationthan that referred to in sub-paragraph (i) above and other than an RCF2 Facility Refinancing Advance or a Utilisation during the Certain Funds Period, the Repeating Representations made by the persons identified as making those representations are true in all material respects by reference to the circumstances then existing and no Default is continuing or would result from the proposed Utilisation; and;
(iik) save in the case of a Rollover Advanceany Utilisation of the Revolving Facility, the Repeating Representations made by each Obligor are true aggregate amount of the Revolving Facility Outstandings and correct the RCF2 Outstandings (provided that, for the purposes of such calculation, if the RCF2 Outstandings exceed €450,000,000 they shall be deemed to be €450,000,000) as a result of the proposed Utilisation will not exceed the Revolving Facility Commitment from time to time;
(l) in all material respects on the relevant case of any Utilisation Date by reference to of the circumstances then existing; andUS$ B1 Facility, a pro rata amount is simultaneously utilised under the EUR B1 Facility;
(m) in the case of any Utilisation of the US$ B2 Facility, a pro rata amount is simultaneously utilised under the EUR B2 Facility;
(n) in relation the case of any Utilisation of the US$ B3 Facility, a pro rata amount is simultaneously utilised under the EUR B3 Facility;
(o) in the case of any Utilisation of the EUR B1 Facility, a pro rata amount is simultaneously utilised under the US$ B1 Facility;
(p) in the case of any Utilisation of the EUR B2 Facility, a pro rata amount is simultaneously utilised under the US$ B2 Facility;
(q) in the case of any Utilisation of the EUR B3 Facility, a pro rata amount is simultaneously utilised under the US$ B3 Facility; and
(r) in the case of any Utilisation at any time prior to the first Utilisation requested under this Agreementearlier of (i) the Debt Pushdown Date, (ii) the Acquisition Facilities End Date and (iii) the date on which the Ziggo Acquisition Agreement has terminated in accordance with its terms, the Parent has delivered to the Facility Agent is reasonably satisfied a copy of any amendments to schedule 5 of the Ziggo Acquisition Agreement made since a copy of the Ziggo Acquisition Agreement was last delivered to the Facility Agent (provided that the Parent will comply with its obligations no Lender shall be under an obligation to make available any Advances under Clause 3.2 4.2 (Conditions SubsequentLenders’ Participations) if any such amendments are materially adverse to the interests of the Lenders, other than where such amendments have been consented to by the Instructing Group).
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Conditions to Utilisation. Save as otherwise provided in this Agreement, an Advance (other than a Swingline Facility Advance or an Incremental Term Facility Advance) will be made by the Lenders to the a Borrower or a Documentary Credit will be issued by an L/C Bank at the a Borrower’s (other than the US Borrower’s) request if:
(a) in the case of an Advance, the Facility Agent has received from the such Borrower a duly completed Utilisation Request stating whether in the proposed relevant form, and in the case of a Documentary Credit, both the Facility Agent and the L/C Bank have received from a Borrower (other than the US Borrower) a duly completed Utilisation Request in the relevant form, in each case, no earlier than the day which is to be by way 10 Business Days and no later than 2:00 p.m. on the day which is 3 Business Days (or in the case of Advance or any Documentary Credit which is not or will not be in the form of Schedule 12 (Form of Documentary Credit), no later than 9.30 a.m. 2:00 p.m. on a the day which is:
(iis 5 Business Days) no more than 10 nor less than 2 Business Days prior to the proposed Utilisation Date for such Advance; or
(ii) no more than 10 nor less than 4 Business Days prior to the proposed Utilisation Date for such Advance or Documentary Credit, receipt of which shall oblige the such Borrower to borrow utilise the amount requested on the date Utilisation Date stated therein upon the terms and subject to the conditions contained in this Agreement provided that no Utilisation Request under the Revolving Facility shall be made prior to the first Utilisation Request under the Term FacilitiesAgreement;
(b) the proposed Utilisation Date is a Business Day for the proposed currency of the Advance or Documentary Credit, as the case may be, which is or precedes the relevant Termination Date;
(c) in the case of a Utilisation by way of an A Term Facility Advance, such Utilisation would result in the maximum principal amount of the Term Facility Advance being utilised, or in the case of a Utilisation by way of a Revolving Facility Advance, such Utilisation occurs on or after the maximum principal amount of the Term Facility being utilised and, the proposed Euro Sterling Amount of such Revolving Facility Advance is (i) equal to €120,000,000the amount of the Available Revolving Facility Commitment at such time, or (ii) less than such amount but equal to a minimum of £5 million, or an integral multiple of £1 million;
(d) in the case of a Utilisation by way of a B1 Facility AdvanceDocumentary Credit, the proposed Euro Sterling Amount of such Advance Documentary Credit is (i) equal to €305,000,000 the amount of the Available Revolving Facility or (it being agreed that the equivalent in dollars is an ii) less than such amount but equal to $380,000,000)or more than £1 million or such lesser amount as the L/C Bank may agree;
(e) in the case of a Utilisation by way of a B2 Facility Advance, the proposed Euro Amount of such Advance is equal to €50,000,000;
(f) in the case of a Utilisation by way of a Revolving Facility Advance, the proposed Euro Amount of such Advance is (i) equal to the amount of the corresponding Available Revolving Facility (minus the Unavailable Revolving Facility Amount (if any)) or (ii) less than such amount but equal to, or an integral multiple of, €1,000,000;
(g) in the case of a Utilisation by way of Documentary Credit, the proposed Euro Amount of such Documentary Credit is equal to or less than the amount of the Available Revolving Facility (minus the Unavailable Revolving Facility Amount (if any));
(h) in the case of a Utilisation by way of a Revolving Facility Advance, (i) at any time prior to the Syndication Date, immediately after the making of such Advance there will be no more than 3 Revolving Facility Advances outstanding and (ii) at any time after the Syndication Date, immediately after the making of such Advance there will be no more than 10 Revolving Facility Advances (for the avoidance of doubt not including any Swingline Facility Advances) then outstanding;
(if) in the case of a Utilisation by way of a Documentary Credit, the proposed Term of the Documentary Credit is a period not exceeding 364 days, ending ends on or before the Termination Date in respect of the Revolving Facility;
(jg) in the case of a Utilisation by way of a Revolving Facility Advance, the proposed Term of such Revolving Facility Advance is a period of one week, two weeks, or 1, 2, 3 or 6 months or such other period of up to 12 months as all the Agent Lenders having a Revolving Facility Commitment may agreeagree prior to submission of the relevant Utilisation Request, and ends on or before the Final Maturity Date in respect of the Revolving Facility provided that, save as the Agent Bookrunners may otherwise agree, prior to the Syndication Date Date, the Term of each Revolving Facility Advance shall be 1 week or 1 month (or, if less, such duration as is necessary to ensure that such Term ends on the Syndication Date);
(kh) in the case of a Utilisation by way of an Advance (other than a Rollover Advance), the interest rate applicable to such Advance’s first Interest Period or Term (as the case may be) will not have to be determined under Clause 16 15 (Market Disruption and Alternative Interest Rates);
(li) in the case of a Utilisation by way of a Documentary Credit which is not substantially in the form set out in Schedule 12 (Form of Documentary Credit), the L/C Bank and the Agent shall have each approved the terms of such Documentary Credit (which, unless the Agent and the L/C Bank otherwise agree in writing, shall be in such form customarily used by the L/C Bank or in such other form as has been approved by the L/C Bank and shall specify the purpose of its issue, the name and address of the Beneficiary of it, the Beneficiary’s receiving bank account and its Expiry Dateacting reasonably);; and
(mj) in the case of any Utilisation, on the date of the Utilisation Request, the date of any Conversion Notice and the proposed Utilisation Date:
(i) in the case of a Rollover Advance or a Documentary Credit which is being renewed pursuant to Clause 5.2 (Renewal of Documentary Credits), no the Facility Agent shall not have received instructions from a Revolving Facility Instructing Group requiring the Facility Agent to refuse such rollover or renewal of a Documentary Credit by reason of an Event of Default having occurred which is continuing or would result from the proposed Rollover Advance or the renewal of that Documentary Credit and, Credit; or
(ii) in the case of any Utilisation other than that referred to in sub-paragraph (i):
(A) in the case of the first Utilisation of any Facility, subject to the provisions of Clause 3.5 (Vanilla Certain Funds Period), all representations set out in Clause 21 (Representations and Warranties) made by each of the persons identified as making those representations are true in all material respects by reference to the circumstances then existing and no Default is continuing or would result from the proposed Utilisation;
(B) in the case of any Utilisation under the A1 Facility and B1 Facility, subject to the provisions of Clause 3.6 (Baseball Certain Funds Period), the Repeating Representations made by the persons identified as making those representations are true in all material respects by reference to the circumstances then existing and no Default is continuing or would result from the proposed Utilisation;
(C) in the case of any Utilisation under the B2 Facility, B3 Facility, B4 Facility, B5 Facility and B6 Facility, the Repeating Representations made by the persons identified as making those representations are true in all material respects by reference to the circumstances then existing and no Default is continuing or would result from the proposed Utilisation; andor
(iiD) save in the case of a Rollover Advanceany Utilisation under the C Facility, the Repeating Representations made by each Obligor the persons identified as making those representations are true and correct in all material respects on the relevant Utilisation Date by reference to the circumstances then existing; and
(n) in relation to existing and no Default is continuing or would result from the first Utilisation requested under this Agreement, the Agent is reasonably satisfied that the Parent will comply with its obligations under Clause 3.2 (Conditions Subsequent)proposed Utilisation.
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Samples: Senior Facilities Agreement (Virgin Media Investment Holdings LTD)
Conditions to Utilisation. Save as otherwise provided in this Agreement, an Advance (other than a Swingline Facility Advance or an Incremental Term Facility Advance) will be made by the Lenders to the relevant Borrower or a Documentary Credit will be issued by an L/C Bank at the BorrowerTCN’s request if:
(a) in the case of an Advance, the Facility Agent has received from the Borrower TCN or Telewest Global Finance LLC as appropriate, a duly completed Utilisation Request stating whether in the proposed relevant form, and in the case of a Documentary Credit, both the Facility Agent and the L/C Bank have received from TCN a duly completed Utilisation Request in the relevant form, in each case, no earlier than the day which is to be by way 10 Business Days and no later than 2:00 p.m. on the day which is 3 Business Days (or in the case of Advance or any Documentary Credit which is not or will not be in the form of Schedule 12 (Form of Documentary Credit), no later than 9.30 a.m. 2:00 p.m. on a the day which is:
(iis 5 Business Days) no more than 10 nor less than 2 Business Days prior to the proposed Utilisation Date for such Advance; or
(ii) no more than 10 nor less than 4 Business Days prior to the proposed Utilisation Date for such Advance or Documentary Credit, receipt of which shall oblige the relevant Borrower to borrow utilise the amount requested on the date Utilisation Date stated therein upon the terms and subject to the conditions contained in this Agreement provided that no Utilisation Request under the Revolving Facility shall be made prior to the first Utilisation Request under the Term FacilitiesAgreement;
(b) the proposed Utilisation Date is a Business Day for the proposed currency of the Advance or Documentary Credit, as the case may be, which is or precedes the relevant Termination Date;
(c) in the case of a Utilisation by way of an A Term Facility Advance, the proposed Euro Amount of such Advance is equal to €120,000,000;
(d) Utilisation would result in the case maximum principal amount of a Utilisation by way of a B1 each Term Facility AdvanceAdvance being utilised, the proposed Euro Amount of such Advance is equal to €305,000,000 (it being agreed that the equivalent in dollars is an amount equal to $380,000,000);
(e) in the case of a Utilisation by way of a B2 Facility Advance, the proposed Euro Amount of such Advance is equal to €50,000,000;
(f) or in the case of a Utilisation by way of a Revolving Facility Advance, the proposed Euro Sterling Amount of such Revolving Facility Advance is (i) equal to the amount of the corresponding Available Revolving Facility (minus the Unavailable Revolving Facility Amount (if any)) Commitment at such time, or (ii) less than such amount but equal toto a minimum amount of £5,000,000, or and an integral multiple of, €of £1,000,000;
(gd) in the case of a Utilisation by way of Documentary Credit, the proposed Euro Sterling Amount of such Documentary Credit is (i) equal to or less than the amount of the Available Revolving Facility or (minus ii) less than such amount but equal to or more than £1,000,000 or such lesser amount as the Unavailable Revolving Facility Amount (if any))L/C Bank may agree;
(he) in the case of a Utilisation by way of a Revolving Facility Advance, (i) at any time prior to the Syndication Date, immediately after the making of such Advance there will be no more than 3 Revolving Facility Advances outstanding and (ii) at any time after the Syndication Date, immediately after the making of such Advance there will be no more than 10 Revolving Facility Advances (for the avoidance of doubt not including any Swingline Facility Advances) then outstanding;
(if) in the case of a Utilisation by way of a Documentary Credit, the proposed Term of the Documentary Credit is a period not exceeding 364 days, ending ends on or before the Termination Date in respect of the Revolving Facility;
(jg) in the case of a Utilisation by way of a Revolving Facility Advance, the proposed Term of such Revolving Facility Advance is a period of one week, two weeks, or 1, 2, 3 or 6 months months, or such other period of up to 12 months as all the Agent Lenders having a Revolving Facility Commitment may agreeagree (prior to submission of the relevant Utilisation Request), and ends on or before the Final Maturity Date in respect of the Revolving Facility provided that, save as the Agent Mandated Lead Arrangers may otherwise agree, prior to the Syndication Date Date, the Term of each Revolving Facility Advance shall be 1 week or 1 month (or, if less, such duration as is necessary to ensure that such Term ends on the Syndication Date);
(kh) in the case of the first Advance, the Facility Agent has received evidence satisfactory to it that £250,000,000 (or its equivalent in other currencies) has been or will, simultaneously with the drawing of the first Advance hereunder, be drawn by the Borrowers under the Second Lien Facility;
(i) in the case of a Utilisation by way of an Advance (other than a Rollover Advance), the interest rate applicable to such Advance’s first Interest Period or Term (as the case may be) will not have to be determined under Clause 16 14 (Market Disruption and Alternative Interest Rates);
(lj) in the case of a Utilisation by way of a Documentary Credit which is not substantially in the form set out in Schedule 12 (Form of Documentary Credit), the L/C Bank and the Facility Agent shall each have each approved the terms of such Documentary Credit (which, unless the Agent and the L/C Bank otherwise agree in writing, shall be in such form customarily used by the L/C Bank or in such other form as has been approved by the L/C Bank and shall specify the purpose of its issue, the name and address of the Beneficiary of it, the Beneficiary’s receiving bank account and its Expiry Date)Credit;
(mk) in the case of a Utilisation by way of a Revolving Facility Advance upon and following an Integrated Merger Event, such Utilisation is made in accordance with the provisions of the Pari Passu Intercreditor Agreement; and
(l) in the case of any Utilisation, on the date of the Utilisation Request, the date of any Conversion Notice and the proposed Utilisation Date:
(i) in the case of a Rollover Advance or a Documentary Credit which is being renewed pursuant to Clause 5.2 (Renewal of Documentary Credits), no the Facility Agent shall not have received instructions from an Instructing Group requiring the Facility Agent to refuse such rollover or renewal of a Documentary Credit by reason of an Event of Default having occurred which is continuing or would result from the proposed Rollover Advance or the renewal of that Documentary Credit and, Credit; or
(ii) in the case of any Utilisation other Utilisationthan that referred to in sub-paragraph (i):
(A) in the case of the first Utilisation (except to the extent such first Utilisation occurs on the date immediately after the date of this Agreement), all representations set out in Clause 20 (Representations and Warranties) made by each of the persons identified as making those representations are true in all material respects by reference to the circumstances then existing and no Default is continuing or would result from the proposed Utilisation; andor
(iiB) save in the case of a Rollover Advanceany other Utilisation, the Repeating Representations made by each Obligor the persons identified as making those representations are true and correct in all material respects on the relevant Utilisation Date by reference to the circumstances then existing; and
(n) in relation to existing and no Default is continuing or would result from the first Utilisation requested under this Agreement, the Agent is reasonably satisfied that the Parent will comply with its obligations under Clause 3.2 (Conditions Subsequent)proposed Utilisation.
Appears in 1 contract
Conditions to Utilisation. Save as otherwise provided in this Agreement, an Advance (other than a Swingline Facility Advance or an Incremental Term Facility Advance) will be made by the Lenders to the a Borrower or a Documentary Credit will be issued by an L/C Bank at the a Borrower’s request if:
(a) in the case of an Advance, the Facility Agent has received from the such Borrower a duly completed Utilisation Request stating whether in the proposed relevant form, and in the case of a Documentary Credit, both the Facility Agent and the relevant L/C Bank have received from a Borrower a duly completed Utilisation Request in the relevant form, in each case, no earlier than the day which is to be by way 10 Business Days and no later than 2:00 p.m. on the day which is 5 Business Days (or in the case of Advance or any Documentary Credit which is not or will not be in the form of Schedule 12 (Form of Documentary Credit), no later than 9.30 a.m. 2:00 p.m. on a the day which is:
(iis 5 Business Days) no more than 10 nor less than 2 Business Days prior to the proposed Utilisation Date for such Advance; or
(ii) no more than 10 nor less than 4 Business Days prior to the proposed Utilisation Date for such Advance or Documentary Credit, receipt of which shall oblige the such Borrower to borrow utilise the amount requested on the date Utilisation Date stated therein upon the terms and subject to the conditions contained in this Agreement provided that no Utilisation Request under the Revolving Facility shall be made prior to the first Utilisation Request under the Term FacilitiesAgreement;
(b) the proposed Utilisation Date is a Business Day for the proposed currency of the Advance or Documentary Credit, as the case may be, which is or precedes the relevant Termination Date;
(c) in the case of a proposed Utilisation by way of an Date for the A Facility Advance, Advance and all B Facilities Advances falls on the proposed Euro Amount of such Advance is equal to €120,000,000same Business Day;
(d) in the case of a Utilisation by way of a B1 Term Facility Advance, such Utilisation would result in the maximum principal amount of the Term Facility Advance being utilised, or in the case of a Utilisation by way of a Revolving Facility Advance, such Utilisation occurs on or after the maximum principal amount of the A Facility being utilised and, the proposed Euro Sterling Amount (or its equivalent) of such Revolving Facility Advance is (i) equal to €305,000,000 the amount of the Available Revolving Facility Commitment at such time, or (it being agreed that the equivalent in dollars is an ii) less than such amount but equal to $380,000,000)a minimum of £5 million, or an integral multiple of £1 million;
(e) the Utilisation Date for a Revolving Facility Advance is on a date not earlier than the Utilisation Date for the A Facility Advance and the B Facility Advances;
(f) in the case of a Utilisation by way of a B2 Facility AdvanceDocumentary Credit, the proposed Euro Sterling Amount (or its equivalent) of such Advance Documentary Credit is equal to €50,000,000or more than £1 million or such lesser amount as the relevant L/C Bank may agree (acting reasonably);
(fg) in the case of a Utilisation by way of a Revolving Facility Advance, the proposed Euro Amount of such Advance is (i) equal to the amount of the corresponding Available Revolving Facility (minus the Unavailable Revolving Facility Amount (if any)) or (ii) less than such amount but equal to, or an integral multiple of, €1,000,000;
(g) in the case of a Utilisation by way of Documentary Credit, the proposed Euro Amount of such Documentary Credit is equal to or less than the amount of the Available Revolving Facility (minus the Unavailable Revolving Facility Amount (if any));
(h) in the case of a Utilisation by way of a Revolving Facility Advance, (i) at any time prior to the Syndication Date, immediately after the making of such Advance there will be no more than 3 25 Revolving Facility Advances outstanding and (ii) at any time after the Syndication Date, immediately after the making of such Advance there will be no more than 10 Revolving Facility Advances (for the avoidance of doubt not including any Swingline Facility Advances) then outstanding;
(ih) in the case of a Utilisation by way of a Documentary Credit, the proposed Term of the Documentary Credit is a period not exceeding 364 days, ending ends on or before the Termination Final Maturity Date in respect of the Revolving Facility and immediately after the making of such Utilisation there will be no more than 25 Documentary Credits then outstanding;
(i) in the case of a Utilisation by way of a Revolving Facility Advance, the proposed Term of such Advance is a period of 1, 2, 3 or 6 months or such other period of up to 12 months as all the Lenders having a Revolving Facility Commitment may agree prior to submission of the relevant Utilisation Request, and ends on or before the Final Maturity Date in respect of the Revolving Facility;
(j) in the case of a Utilisation by way of a Revolving Facility Advance, the proposed Term of such Revolving Facility Advance is a period of one week, two weeks, or 1, 2, 3 or 6 months or such other period as the Agent may agree, and ends on or before the Final Maturity Date of the Revolving Facility provided that, save as the Agent may otherwise agree, prior to the Syndication Date the Term of each Revolving Facility Advance shall be 1 week or 1 month (or, such duration as is necessary to ensure that such Term ends on the Syndication Date);
(k) in the case of a Utilisation by way of an Advance (other than a Rollover Advance), the interest rate applicable to such Advance’s first Interest Period or Term (as the case may be) will not have to be determined under Clause 16 15 (Market Disruption and Alternative Interest Rates);
(lk) in the case of a Utilisation by way of a Documentary Credit which is not substantially in the form set out in Schedule 12 (Form of Documentary Credit), the relevant L/C Bank and the Agent shall have each approved the terms of such Documentary Credit (which, unless the Agent and the L/C Bank otherwise agree in writing, shall be in such form customarily used by the L/C Bank or in such other form as has been approved by the L/C Bank and shall specify the purpose of its issue, the name and address of the Beneficiary of it, the Beneficiary’s receiving bank account and its Expiry Dateacting reasonably);; and
(ml) in the case of any Utilisation, on the date of the Utilisation Request, the date of any Conversion Notice and the proposed Utilisation Date:
(i) in the case of a Rollover Advance or a Documentary Credit which is being renewed pursuant to Clause 5.2 (Renewal of Documentary Credits), no Event of Default is continuing the Facility Agent shall not have received instructions from a Revolving Facility Instructing Group requiring the Facility Agent to refuse such rollover or would result from the proposed Rollover Advance or the renewal of that a Documentary Credit and, by reason of the Acceleration Date having occurred; or
(ii) in the case of any Utilisation other Utilisationthan that referred to in sub-paragraph (i) above, the Repeating Representations made by the persons identified as making those representations are true in all material respects by reference to the circumstances then existing and no Default is continuing or would result from the proposed Utilisation; and
(ii) save in the case of a Rollover Advance, the Repeating Representations made by each Obligor are true and correct in all material respects on the relevant Utilisation Date by reference to the circumstances then existing; and
(n) in relation to the first Utilisation requested under this Agreement, the Agent is reasonably satisfied that the Parent will comply with its obligations under Clause 3.2 (Conditions Subsequent).
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Conditions to Utilisation. Save as otherwise provided in this Agreement, an Advance (other than a Swingline Facility Advance or an Incremental Term Facility Advance) will be made by the Lenders to the a Borrower or a Documentary Credit will be issued by an L/C Bank at the a Borrower’s request if:
(a) in the case of an Advance, the Facility Agent has received from the such Borrower a duly completed Utilisation Request stating whether in the proposed relevant form, and in the case of a Documentary Credit, both the Facility Agent and the relevant L/C Bank have received from a Borrower a duly completed Utilisation Request in the relevant form, in each case, no earlier than the day which is to be by way 10 Business Days and no later than 2:00 p.m. on the day which is 5 Business Days (or in the case of Advance or any Documentary Credit which is not or will not be in the form of Schedule 12 (Form of Documentary Credit), no later than 9.30 a.m. 2:00 p.m. on a the day which is:
(iis 5 Business Days) no more than 10 nor less than 2 Business Days prior to the proposed Utilisation Date for such Advance; or
(ii) no more than 10 nor less than 4 Business Days prior to the proposed Utilisation Date for such Advance or Documentary Credit, receipt of which shall oblige the such Borrower to borrow utilise the amount requested on the date Utilisation Date stated therein upon the terms and subject to the conditions contained in this Agreement provided that no Utilisation Request under the Revolving Facility shall be made prior to the first Utilisation Request under the Term FacilitiesAgreement;
(b) the proposed Utilisation Date is a Business Day for the proposed currency of the Advance or Documentary Credit, as the case may be, which is or precedes the relevant Termination Date;
(c) in the case of a proposed Utilisation by way of an Date for the A Facility Advance, Advance and all B Facilities Advances falls on the proposed Euro Amount of such Advance is equal to €120,000,000same Business Day;
(d) in the case of a Utilisation by way of a B1 Term Facility Advance, such Utilisation would result in the maximum principal amount of the Term Facility Advance being utilised, or in the case of a Utilisation by way of a Revolving Facility Advance, such Utilisation occurs on or after the maximum principal amount of the A Facility being utilised and, the proposed Euro Sterling Amount (or its equivalent) of such Revolving Facility Advance is is
(i) equal to €305,000,000 the amount of the Available Revolving Facility Commitment at such time, or (it being agreed that the equivalent in dollars is an ii) less than such amount but equal to $380,000,000)a minimum of £5 million, or an integral multiple of £1 million;
(e) the Utilisation Date for a Revolving Facility Advance is on a date not earlier than the Utilisation Date for the A Facility Advance and the B Facility Advances;
(f) in the case of a Utilisation by way of a B2 Facility AdvanceDocumentary Credit, the proposed Euro Sterling Amount (or its equivalent) of such Advance Documentary Credit is equal to €50,000,000or more than £1 million or such lesser amount as the relevant L/C Bank may agree (acting reasonably);
(fg) in the case of a Utilisation by way of a Revolving Facility Advance, the proposed Euro Amount of such Advance is (i) equal to the amount of the corresponding Available Revolving Facility (minus the Unavailable Revolving Facility Amount (if any)) or (ii) less than such amount but equal to, or an integral multiple of, €1,000,000;
(g) in the case of a Utilisation by way of Documentary Credit, the proposed Euro Amount of such Documentary Credit is equal to or less than the amount of the Available Revolving Facility (minus the Unavailable Revolving Facility Amount (if any));
(h) in the case of a Utilisation by way of a Revolving Facility Advance, (i) at any time prior to the Syndication Date, immediately after the making of such Advance there will be no more than 3 25 Revolving Facility Advances outstanding and (ii) at any time after the Syndication Date, immediately after the making of such Advance there will be no more than 10 Revolving Facility Advances (for the avoidance of doubt not including any Swingline Facility Advances) then outstanding;
(ih) in the case of a Utilisation by way of a Documentary Credit, the proposed Term of the Documentary Credit is a period not exceeding 364 days, ending ends on or before the Termination Final Maturity Date in respect of the Revolving Facility and immediately after the making of such Utilisation there will be no more than 25 Documentary Credits then outstanding;
(i) in the case of a Utilisation by way of a Revolving Facility Advance, the proposed Term of such Advance is a period of 1, 2, 3 or 6 months or such other period of up to 12 months as all the Lenders having a Revolving Facility Commitment may agree prior to submission of the relevant Utilisation Request, and ends on or before the Final Maturity Date in respect of the Revolving Facility;
(j) in the case of a Utilisation by way of a Revolving Facility Advance, the proposed Term of such Revolving Facility Advance is a period of one week, two weeks, or 1, 2, 3 or 6 months or such other period as the Agent may agree, and ends on or before the Final Maturity Date of the Revolving Facility provided that, save as the Agent may otherwise agree, prior to the Syndication Date the Term of each Revolving Facility Advance shall be 1 week or 1 month (or, such duration as is necessary to ensure that such Term ends on the Syndication Date);
(k) in the case of a Utilisation by way of an Advance (other than a Rollover Advance), the interest rate applicable to such Advance’s first Interest Period or Term (as the case may be) will not have to be determined under Clause 16 15 (Market Disruption and Alternative Interest Rates);
(lk) in the case of a Utilisation by way of a Documentary Credit which is not substantially in the form set out in Schedule 12 (Form of Documentary Credit), the relevant L/C Bank and the Agent shall have each approved the terms of such Documentary Credit (which, unless the Agent and the L/C Bank otherwise agree in writing, shall be in such form customarily used by the L/C Bank or in such other form as has been approved by the L/C Bank and shall specify the purpose of its issue, the name and address of the Beneficiary of it, the Beneficiary’s receiving bank account and its Expiry Dateacting reasonably);; and
(ml) in the case of any Utilisation, on the date of the Utilisation Request, the date of any Conversion Notice and the proposed Utilisation Date:
(i) in the case of a Rollover Advance or a Documentary Credit which is being renewed pursuant to Clause 5.2 (Renewal of Documentary Credits), no Event of Default is continuing the Facility Agent shall not have received instructions from a Revolving Facility Instructing Group requiring the Facility Agent to refuse such rollover or would result from the proposed Rollover Advance or the renewal of that a Documentary Credit and, by reason of the Acceleration Date having occurred; or
(ii) in the case of any Utilisation other Utilisationthan that referred to in sub-paragraph (i) above, the Repeating Representations made by the persons identified as making those representations are true in all material respects by reference to the circumstances then existing and no Default is continuing or would result from the proposed Utilisation; and
(ii) save in the case of a Rollover Advance, the Repeating Representations made by each Obligor are true and correct in all material respects on the relevant Utilisation Date by reference to the circumstances then existing; and
(n) in relation to the first Utilisation requested under this Agreement, the Agent is reasonably satisfied that the Parent will comply with its obligations under Clause 3.2 (Conditions Subsequent).
Appears in 1 contract
Conditions to Utilisation. Save as otherwise provided in this Agreement, an Advance (other than a Swingline Facility Advance or an Incremental Term Facility Advance) will be made by the Lenders to each of the Borrower or a Documentary Credit will be issued by an L/C Bank Borrowers at the relevant Borrower’s request if:
(a) the Facility Agent has received from the Borrower TCN or Telewest Global Finance LLC, as appropriate, a duly completed Utilisation Request stating whether no earlier than the proposed Utilisation day which is to be by way of Advance or Documentary Credit not 10 Business Days and no later than 9.30 a.m. 2:00 p.m. on a the day which is:
(i) no more than 10 nor less than 2 is 3 Business Days prior to the proposed Utilisation Date for such Advance; or
(ii) no more than 10 nor less than 4 Business Days prior to the proposed Utilisation Date for such Documentary Credit, receipt of which shall oblige the relevant Borrower to borrow the amount requested on the date Utilisation Date stated therein upon the terms and subject to the conditions contained in this Agreement provided that no Utilisation Request under the Revolving Facility shall be made prior to the first Utilisation Request under the Term FacilitiesAgreement;
(b) the proposed Utilisation Date is a Business Day for the proposed currency of the Advance or Documentary Credit, as the case may be, which is or precedes the relevant Termination Date;
(c) the Utilisation would result in the case maximum principal amount of a Utilisation by way of an A the Available Facility Advance, the proposed Euro Amount of such Advance is equal to €120,000,000being borrowed;
(d) in the case of a Utilisation by way of a B1 Facility Advance, the proposed Euro Amount of such Advance is equal Agent has received evidence satisfactory to €305,000,000 it that £1,450,000,000 (it being agreed that the or its equivalent in dollars is an amount equal to $380,000,000)other currencies) has been or will, simultaneously with the drawing of the first Advance hereunder, be drawn by the Borrowers under the Senior Facilities;
(e) in the case of a Utilisation by way of a B2 Facility Advance, the proposed Euro Amount of such Advance is equal to €50,000,000;
(f) in the case of a Utilisation by way of a Revolving Facility Advance, the proposed Euro Amount of such Advance is (i) equal to the amount of the corresponding Available Revolving Facility (minus the Unavailable Revolving Facility Amount (if any)) or (ii) less than such amount but equal to, or an integral multiple of, €1,000,000;
(g) in the case of a Utilisation by way of Documentary Credit, the proposed Euro Amount of such Documentary Credit is equal to or less than the amount of the Available Revolving Facility (minus the Unavailable Revolving Facility Amount (if any));
(h) in the case of a Utilisation by way of a Revolving Facility Advance, (i) at any time prior to the Syndication Date, immediately after the making of such Advance there will be no more than 3 Revolving Facility Advances outstanding and (ii) at any time after the Syndication Date, immediately after the making of such Advance there will be no more than 10 Revolving Facility Advances (for the avoidance of doubt not including any Swingline Facility Advances) outstanding;
(i) in the case of a Utilisation by way of a Documentary Credit, the proposed Term of the Documentary Credit is a period not exceeding 364 days, ending on or before the Termination Date in respect of the Revolving Facility;
(j) in the case of a Utilisation by way of a Revolving Facility Advance, the proposed Term of such Revolving Facility Advance is a period of one week, two weeks, or 1, 2, 3 or 6 months or such other period as the Agent may agree, and ends on or before the Final Maturity Date of the Revolving Facility provided that, save as the Agent may otherwise agree, prior to the Syndication Date the Term of each Revolving Facility Advance shall be 1 week or 1 month (or, such duration as is necessary to ensure that such Term ends on the Syndication Date);
(k) in the case of a Utilisation by way of an Advance other than a Rollover Advance, the interest rate applicable to such Advance’s first Interest Period or Term (as the case may be) will not have to be determined under Clause 16 9 (Market Disruption and Alternative Interest Rates);
(lf) in on the case date of a the Utilisation by way of a Documentary Credit, the L/C Bank Request and the Agent have proposed Utilisation Date, all representations set out in Clause 15 (Representations and Warranties) made by each approved the terms of such Documentary Credit (which, unless the Agent and the L/C Bank otherwise agree in writing, shall be in such form customarily used by the L/C Bank or in such other form as has been approved by the L/C Bank and shall specify the purpose of its issue, the name and address of the Beneficiary of it, persons identified as making those representations are true in all material respects by reference to the Beneficiary’s receiving bank account circumstances then existing and its Expiry Date);
(m) in the case of any Utilisation:
(i) in the case of a Rollover Advance or a Documentary Credit which is being renewed pursuant to Clause 5.2 (Renewal of Documentary Credits), no Event of Default is continuing or would result from the proposed Rollover Advance or the renewal of that Documentary Credit and, in the case of any other Utilisation, no Default is continuing or would result from the making of the proposed Utilisation; and
(ii) save in the case of a Rollover Advance, the Repeating Representations made by each Obligor are true and correct in all material respects on the relevant Utilisation Date by reference to the circumstances then existing; and
(n) in relation to the first Utilisation requested under this Agreement, the Agent is reasonably satisfied that the Parent will comply with its obligations under Clause 3.2 (Conditions Subsequent).
Appears in 1 contract
Samples: Second Lien Facility Agreement (Telewest Global Inc)
