Foreign Subsidiary Incremental Facilities. The Borrowers may at any time or from time to time after the Closing Date, by notice from the Parent to the Agent (whereupon the Agent shall promptly deliver a copy to each of the Lenders), request one or more additional asset-based revolving loan facilities be established hereunder (each a “Foreign Subsidiary Incremental Facility”, the commitments of the lenders thereunder, the “Foreign Subsidiary Incremental Commitment” any such loans thereunder, the “Foreign Subsidiary Incremental Loans”) and/or that any then-existing Foreign Subsidiary Incremental Commitments be increased, in each case, denominated in Dollars or another currency agreed to by the Agent and the Foreign Subsidiary Lenders providing such Foreign Subsidiary Incremental Facility and in a minimum amount of $25,000,000, or in increments of $10,000,000 in excess thereof; provided that, in each case, (i) the aggregate principal amount of Foreign Subsidiary Incremental Commitments established pursuant to this clause (c) shall not exceed $250,000,000; (ii) the borrowers of such Foreign Subsidiary Incremental Facilities (the “Foreign Subsidiary Borrowers”) shall be wholly-owned Subsidiaries of Parent that are organized under the laws of Canada, England & Wales, the Netherlands, Germany or such other jurisdiction as agreed to by the Agent and the Lenders providing such Foreign Subsidiary Incremental Loans (or, in each case, any state, province or territory thereof, as applicable) (provided that for the avoidance of doubt, such Foreign Subsidiary Borrower shall not be required to become a Guarantor with respect to any Loan); (iii) the borrowing base established for any such Foreign Subsidiary Incremental Facility (including the definitions and components thereof) will be reasonably acceptable to the Agent; (iv) the Agent and Foreign Subsidiary Lenders providing such Foreign Subsidiary Incremental Facility will have received on or prior to the effectiveness of such Foreign Subsidiary Incremental Facility customary field examinations and appraisals, in form and substance reasonably satisfactory to the Agent and such Foreign Subsidiary Lenders, of the Foreign Subsidiary Borrowers’ assets that will be included in the borrowing base for such Foreign Subsidiary Incremental Facility; (v) the advance rates with respect to the collateral of the Foreign Subsidiary Borrowers (the “Foreign Subsidiary Collateral”) under any such Foreign Subsidiary Incremental Facility shall be no higher than the advance rates applicable to the Tranche A Revolving Loans; (vi) the Foreign Subsidiary Lenders that provide such Foreign Subsidiary Incremental Facility shall benefit from a first-priority perfected security interest in the Foreign Subsidiary Collateral for such Foreign Subsidiary Incremental Facility pursuant to documentation reasonably satisfactory to the Agent; it being agreed that no Lender (other than a Foreign Subsidiary Lender in its capacity as such) will benefit from any security interest in the Foreign Subsidiary Collateral; (vii) any such Foreign Subsidiary Incremental Facility (x) may benefit from a guaranty from the Borrowers and the Guarantors which guaranty may be secured by the Collateral on a junior basis to the Liens securing the Obligations of the Lender Group (other than any Foreign Subsidiary Lender) or (y) to the extent requested by the Borrowers or the Agent, such Foreign Subsidiary Incremental Facility may benefit from a guaranty from the Borrower and the Guarantors which guaranty may be secured by the Collateral on a pari passu basis with the Liens securing the Obligations of the Lender Group and, in the event such Foreign Subsidiary Incremental Facility is secured on a pari passu basis with the Liens securing the Obligations of the Lender Group, (A) each Lender (including each Foreign Subsidiary Lender) shall enter into a customary loss sharing agreement in form and substance reasonably acceptable to the Agent and the Supermajority Lenders or (B) the post-enforcement “waterfall” under Section 2.4(b)(iv) shall be amended such that the proceeds of the Collateral of the Loan Parties organized in the United States (or any state or territory thereof) are applied to the Foreign Subsidiary Borrower’s Obligations only after the other Obligations have been paid in full; (viii) the maturity date of any such Foreign Subsidiary Incremental Facility will be the Maturity Date; (ix) each Foreign Subsidiary Borrower shall have appointed a process agent that is a Person incorporated or organized under the laws of the United States of America, any state thereof or in the District of Columbia; (x) no Default or Event of Default shall have occurred and be continuing or shall occur as a result of such establishment or increase in Foreign Subsidiary Incremental Facilities, as applicable; (xi) the representations and warranties contained in the Loan Documents shall be accurate in all material respects (or in all respects with respect to any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language) before and after such establishment or increase in Foreign Subsidiary Incremental Facilities, as applicable; (xii) prior to the date of such establishment or increase, each Lender shall have received written notice from Agent of the aggregate principal amount of such requested Foreign Subsidiary Incremental Facility or increase thereto, as applicable; (xiii) notwithstanding anything to the contrary in this Agreement or any of the other Loan Documents, (a) the Obligations of the Foreign Subsidiary Borrowers under this Agreement or any of the other Loan Documents shall be separate and distinct from the Obligations of any Loan Party organized in the United States including, without limitation, the Parent, and shall be expressly limited to the Obligations of each applicable Foreign Subsidiary Borrower, (b) the liability of any Foreign Subsidiary Borrower for the payment and performance of its covenants, representations and warranties or obligations (payment or otherwise) set forth in this Agreement and the other Loan Documents shall be several from but not joint with the Obligations of the Parent and any other Loan Party organized in the United States, and (c) the Foreign Subsidiary Collateral, or any other credit support provided by the Foreign Subsidiary Borrowers, shall not secure or be applied in satisfaction, by way of payment, prepayment, or otherwise, of all or any portion of the Obligations of the Parent and any other Loan Party organized in the United States; and (xiv) the Borrowers shall, and shall cause their applicable Subsidiaries (including any applicable Foreign Subsidiary Borrowers) to, execute and deliver such documents, opinions, certificates, instruments or information (including any “know your customer” information and any Beneficial Ownership Regulation information reasonably requested by the Agent or any Lender (through the Agent)) and take such other actions as may be reasonably requested by Agent in connection with such establishment or increase, as applicable. Any request under this Section 2.16(c) shall be submitted by the Borrowers to Agent (and Agent shall forward copies to the Lenders), specify the proposed effective date and the amount of each such requested Foreign Subsidiary Incremental Facility or increase thereto, as applicable, and be accompanied by an officer’s certificate of the Borrowers stating that (x) no Default or Event of Default exists or will occur as a result of such establishment or increase(s), as applicable and (y) the representations and warranties contained in the Loan Documents are accurate in all material respects (or in all respects with respect to any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language) before and after the such establishment or increase(s), as applicable. The Borrowers may also specify any fees offered to those Lenders and/or Additional Lenders (the “Foreign Subsidiary Lenders”) that agree to provide such Foreign Subsidiary Incremental Facilities or increases thereto, as applicable, which fees may be variable based upon the amount by which any such Foreign Subsidiary Lender is willing to increase the principal amount of its Foreign Subsidiary Incremental Commitments and/or provide a new Foreign Subsidiary Incremental Facility, as applicable. No Lender shall have any obligation, express or implied, to offer to provide any Foreign Subsidiary Incremental Facility or to increase its existing Foreign Subsidiary Incremental Commitments.
Appears in 2 contracts
Samples: Asset Based Revolving Credit Agreement (Cleveland-Cliffs Inc.), Asset Based Revolving Credit Agreement (Cleveland-Cliffs Inc.)
Foreign Subsidiary Incremental Facilities. The Borrowers may at any time or from time to time after the Closing Date, by notice from the Parent to the Agent (whereupon the Agent shall promptly deliver a copy to each of the Lenders), request one or more additional asset-based revolving loan facilities be established hereunder (each a “Foreign Subsidiary Incremental Facility”, the commitments of the lenders thereunder, the “Foreign Subsidiary Incremental Commitment” any such loans thereunder, the “Foreign Subsidiary Incremental Loans”) and/or that any then-existing Foreign Subsidiary Incremental Commitments be increased, in each case, denominated in Dollars or another currency agreed to by the Agent and the Foreign Subsidiary Lenders providing such Foreign Subsidiary Incremental Facility and in a minimum amount of $25,000,000, or in increments of $10,000,000 in excess thereof; provided that, in each case, (i) the aggregate principal amount of Foreign Subsidiary Incremental Commitments established pursuant to this clause (c) shall not exceed $250,000,000100,000,000 less, to the extent in excess of $300,000,000, the aggregate principal amount of Upsize Incremental Commitments made pursuant to Section 2.16(a) greater than $300,000,000; (ii) the borrowers of such Foreign Subsidiary Incremental Facilities (the “Foreign Subsidiary Borrowers”) shall be wholly-owned Subsidiaries of Parent that are organized under the laws of Canada, England & Wales, the Netherlands, Germany or such other jurisdiction as agreed to by the Agent and the Lenders providing such Foreign Subsidiary Incremental Loans (or, in each case, any state, province or territory thereof, as applicable) (provided that for the avoidance of doubt, such Foreign Subsidiary Borrower shall not be required to become a Guarantor with respect to any Loan); (iii) the borrowing base established for any such Foreign Subsidiary Incremental Facility (including the definitions and components thereof) will be reasonably acceptable to the Agent; (iv) the Agent and Foreign Subsidiary Lenders providing such Foreign Subsidiary Incremental Facility will have received on or prior to the effectiveness of such Foreign Subsidiary Incremental Facility customary field examinations and appraisals, in form and substance reasonably satisfactory to the Agent and such Foreign Subsidiary Lenders, of the Foreign Subsidiary Borrowers’ assets that will be included in the borrowing base for such Foreign Subsidiary Incremental Facility; (v) the advance rates with respect to the collateral of the Foreign Subsidiary Borrowers (the “Foreign Subsidiary Collateral”) under any such Foreign Subsidiary Incremental Facility shall be no higher than the advance rates applicable to the Tranche A Revolving Loans; (vi) the Foreign Subsidiary Lenders that provide such Foreign Subsidiary Incremental Facility shall benefit from a first-priority perfected security interest in the Foreign Subsidiary Collateral for such Foreign Subsidiary Incremental Facility pursuant to documentation reasonably satisfactory to the Agent; it being agreed that no Lender (other than a Foreign Subsidiary Lender in its capacity as such) will benefit from any security interest in the Foreign Subsidiary Collateral; (vii) any such Foreign Subsidiary Incremental Facility (x) may benefit from a guaranty from the Borrowers and the Guarantors which guaranty may be secured by the Collateral on a junior basis to the Liens securing the Obligations of the Lender Group (other than any Foreign Subsidiary Lender) or (y) to the extent requested by the Borrowers or the Agent, such Foreign Subsidiary Incremental Facility may benefit from a guaranty from the Borrower and the Guarantors which guaranty may be secured by the Collateral on a pari passu basis with the Liens securing the Obligations of the Lender Group and, in the event such Foreign Subsidiary Incremental Facility is secured on a pari passu basis with the Liens securing the Obligations of the Lender Group, (A) each Lender (including each Foreign Subsidiary Lender) shall enter into a customary loss sharing agreement in form and substance reasonably acceptable to the Agent and the Supermajority Lenders or (B) the post-enforcement “waterfall” under Section 2.4(b)(iv) shall be amended such that the proceeds of the Collateral of the Loan Parties organized in the United States (or any state or territory thereof) are applied to the Foreign Subsidiary Borrower’s Obligations only after the other Obligations have been paid in full; (viii) the maturity date of any such Foreign Subsidiary Incremental Facility will be the Maturity Date; (ix) each Foreign Subsidiary Borrower shall have appointed a process agent that is a Person incorporated or organized under the laws of the United States of America, any state thereof or in the District of Columbia; (x) no Default or Event of Default shall have occurred and be continuing or shall occur as a result of such establishment or increase in Foreign Subsidiary Incremental Facilities, as applicable; (xi) the representations and warranties contained in the Loan Documents shall be accurate in all material respects (or in all respects with respect to any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language) before and after such establishment or increase in Foreign Subsidiary Incremental Facilities, as applicable; (xii) prior to the date of such establishment or increase, each Lender shall have received written notice from Agent of the aggregate principal amount of such requested Foreign Subsidiary Incremental Facility or increase thereto, as applicable; (xiii) notwithstanding anything to the contrary in this Agreement or any of the other Loan Documents, (a) the Obligations of the Foreign Subsidiary Borrowers under this Agreement or any of the other Loan Documents shall be separate and distinct from the Obligations of any Loan Party organized in the United States including, without limitation, the Parent, and shall be expressly limited to the Obligations of each applicable Foreign Subsidiary Borrower, (b) the liability of any Foreign Subsidiary Borrower for the payment and performance of its covenants, representations and warranties or obligations (payment or otherwise) set forth in this Agreement and the other Loan Documents shall be several from but not joint with the Obligations of the Parent and any other Loan Party organized in the United States, and (c) the Foreign Subsidiary Collateral, or any other credit support provided by the Foreign Subsidiary Borrowers, shall not secure or be applied in satisfaction, by way of payment, prepayment, or otherwise, of all or any portion of the Obligations of the Parent and any other Loan Party organized in the United States; and (xiv) the Borrowers shall, and shall cause their applicable Subsidiaries (including any applicable Foreign Subsidiary Borrowers) to, execute and deliver such documents, opinions, certificates, instruments or information (including any “know your customer” information and any Beneficial Ownership Regulation information reasonably requested by the Agent or any Lender (through the Agent)) and take such other actions as may be reasonably requested by Agent in connection with such establishment or increase, as applicable. Any request under this Section 2.16(c) shall be submitted by the Borrowers to Agent (and Agent shall forward copies to the Lenders), specify the proposed effective date and the amount of each such requested Foreign Subsidiary Incremental Facility or increase thereto, as applicable, and be accompanied by an officer’s certificate of the Borrowers stating that (x) no Default or Event of Default exists or will occur as a result of such establishment or increase(s), as applicable and (y) the representations and warranties contained in the Loan Documents are accurate in all material respects (or in all respects with respect to any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language) before and after the such establishment or increase(s), as applicable. The Borrowers may also specify any fees offered to those Lenders and/or Additional Lenders (the “Foreign Subsidiary Lenders”) that agree to provide such Foreign Subsidiary Incremental Facilities or increases thereto, as applicable, which fees may be variable based upon the amount by which any such Foreign Subsidiary Lender is willing to increase the principal amount of its Foreign Subsidiary Incremental Commitments and/or provide a new Foreign Subsidiary Incremental Facility, as applicable. No Lender shall have any obligation, express or implied, to offer to provide any Foreign Subsidiary Incremental Facility or to increase its existing Foreign Subsidiary Incremental Commitments.
Appears in 2 contracts
Samples: Asset Based Revolving Credit Agreement (Cleveland-Cliffs Inc.), Asset Based Revolving Credit Agreement (Cleveland-Cliffs Inc.)
Foreign Subsidiary Incremental Facilities. The Borrowers Borrower Agent may request in writing at any time or from time to time after the Closing Date, by notice from the Parent to the Agent (whereupon the Agent shall promptly deliver a copy to each establishment of the Lenders), request one or more an additional asset-based revolving loan facilities be established facility hereunder (each a “Foreign Subsidiary Incremental Facility”, the commitments of the lenders Lenders thereunder, the “Foreign Subsidiary Incremental CommitmentRevolver Commitments” any such and the loans thereunder, the “Foreign Subsidiary Incremental Revolver Loans”) and/or that any then-or the increase of a then existing Foreign Subsidiary Incremental Commitments be increasedFacility, in each case, denominated in Dollars or another currency agreed to by the Agent and the Foreign Subsidiary Lenders providing such Foreign Subsidiary Incremental Facility and case in a minimum amount of $25,000,00010,000,000, or in increments an increment of $10,000,000 in excess thereof; provided that, in each case, (i) the aggregate principal amount of Foreign Subsidiary Incremental Commitments Facility established pursuant to this clause (c) Section 2.1.6 shall not exceed the lesser of (x) $250,000,00050,000,000 and (y) an amount equal to $500,000,000 minus the aggregate principal amount of increases in Revolver Commitments made pursuant to Section 2.2.1; (ii) the borrowers of under such Foreign Subsidiary Incremental Facilities Facility (the “Foreign Subsidiary Borrowers”) shall be whollyWholly-owned Owned Subsidiaries of Parent the Borrower that are organized under the laws of Canada, England & Wales, the Netherlands, Germany or such other jurisdiction as agreed to by the Agent and the Lenders providing such Foreign Subsidiary Incremental Loans Canada (or, in each case, any state, province or territory thereof, as applicable) (provided that for the avoidance of doubt, such Foreign Subsidiary Borrower shall not be required to become a Guarantor with respect to any Loan); (iii) the borrowing base established for any such Foreign Subsidiary Incremental Facility (including the definitions and components thereof) will be reasonably acceptable to the Agent; (iv) the Agent and Foreign Subsidiary Lenders providing such the Foreign Subsidiary Incremental Facility will have received on or prior to the effectiveness of such the Foreign Subsidiary Incremental Facility customary field examinations and appraisals, in form and substance reasonably satisfactory to the Agent and such Foreign Subsidiary Lenders, of the Foreign Subsidiary Borrowers’ assets that will be included in the borrowing base for such Foreign Subsidiary Incremental Facility; (v) the advance rates with respect to the collateral of the Foreign Subsidiary Borrowers (the “Foreign Subsidiary Collateral”) under any such Foreign Subsidiary Incremental Facility shall be no higher than the advance rates applicable to the Tranche A Revolving Loans; (vi) the Foreign Subsidiary Lenders that provide such Foreign Subsidiary Incremental Facility shall benefit from a first-priority perfected security interest in the Foreign Subsidiary Collateral for such Foreign Subsidiary Incremental Facility pursuant to documentation reasonably satisfactory to the Agent; it being agreed that no Lender (other than a Foreign Subsidiary Lender in its capacity as such) will benefit from any security interest in the Foreign Subsidiary Collateral; (vii) any such Foreign Subsidiary Incremental Facility (x) may benefit from a guaranty from the Borrowers and the Guarantors which guaranty may be secured by the Collateral on a junior basis to the Liens securing the Obligations of the Lender Group (other than any Foreign Subsidiary Lender) or (y) to the extent requested by the Borrowers or the Agent, such Foreign Subsidiary Incremental Facility may benefit from a guaranty from the Borrower and the Guarantors which guaranty may be secured by the Collateral on a pari passu basis with the Liens securing the Obligations of the Lender Group and, in the event such Foreign Subsidiary Incremental Facility is secured on a pari passu basis with the Liens securing the Obligations of the Lender Group, (A) each Lender (including each Foreign Subsidiary Lender) shall enter into a customary loss sharing agreement in form and substance reasonably acceptable to the Agent and the Supermajority Lenders or (B) the post-enforcement “waterfall” under Section 2.4(b)(iv) shall be amended such that the proceeds of the Collateral of the Loan Parties organized in the United States (or any state or territory thereof) are applied to the Foreign Subsidiary Borrower’s Obligations only after the other Obligations have been paid in full; (viii) the maturity date of any such Foreign Subsidiary Incremental Facility will be the Maturity Date; (ix) each Foreign Subsidiary Borrower shall have appointed a process agent that is a Person incorporated or organized under the laws of the United States of America, any state thereof or in the District of Columbia; (x) no Default or Event of Default shall have occurred and be continuing or shall occur as a result of such establishment or increase in Foreign Subsidiary Incremental Facilities, as applicable; (xi) the representations and warranties contained in the Loan Documents shall be accurate in all material respects (or in all respects with respect to any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language) before and after such establishment or increase in Foreign Subsidiary Incremental Facilities, as applicable; (xii) prior to the date of such establishment or increase, each Lender shall have received written notice from Agent of the aggregate principal amount of such requested Foreign Subsidiary Incremental Facility or increase thereto, as applicable; (xiii) notwithstanding anything to the contrary in this Agreement or any of the other Loan Documents, (a) the Obligations of the Foreign Subsidiary Borrowers under this Agreement or any of the other Loan Documents shall be separate and distinct from the Obligations of any Loan Party organized in the United States including, without limitation, the Parent, and shall be expressly limited to the Obligations of each applicable Foreign Subsidiary Borrower, (b) the liability of any Foreign Subsidiary Borrower for the payment and performance of its covenants, representations and warranties or obligations (payment or otherwise) set forth in this Agreement and the other Loan Documents shall be several from but not joint with the Obligations of the Parent and any other Loan Party organized in the United States, and (c) the Foreign Subsidiary Collateral, or any other credit support provided by the Foreign Subsidiary Borrowers, shall not secure or be applied in satisfaction, by way of payment, prepayment, or otherwise, of all or any portion of the Obligations of the Parent and any other Loan Party organized in the United States; and (xiv) the Borrowers shall, and shall cause their applicable Subsidiaries (including any applicable Foreign Subsidiary Borrowers) to, execute and deliver such documents, opinions, certificates, instruments or information (including any “know your customer” information and any Beneficial Ownership Regulation information reasonably requested by the Agent or any Lender (through the Agent)) and take such other actions as may be reasonably requested by Agent in connection with such establishment or increase, as applicable. Any request under this Section 2.16(c) shall be submitted by the Borrowers to Agent (and Agent shall forward copies to the Lenders), specify the proposed effective date and the amount of each such requested Foreign Subsidiary Incremental Facility or increase thereto, as applicable, and be accompanied by an officer’s certificate of the Borrowers stating that (x) no Default or Event of Default exists or will occur as a result of such establishment or increase(s), as applicable and (y) the representations and warranties contained in the Loan Documents are accurate in all material respects (or in all respects with respect to any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language) before and after the such establishment or increase(s), as applicable. The Borrowers may also specify any fees offered to those Lenders and/or Additional Lenders (the “Foreign Subsidiary Lenders”) that agree to provide such Foreign Subsidiary Incremental Facilities or increases thereto, as applicable, which fees may be variable based upon the amount by which any such Foreign Subsidiary Lender is willing to increase the principal amount of its Foreign Subsidiary Incremental Commitments and/or provide a new Foreign Subsidiary Incremental Facility, as applicable. No Lender shall have any obligation, express or implied, to offer to provide any Foreign Subsidiary Incremental Facility or to increase its existing Foreign Subsidiary Incremental Commitments.Subsidiary
Appears in 1 contract
Samples: Credit Agreement (Calumet Specialty Products Partners, L.P.)
Foreign Subsidiary Incremental Facilities. The Borrowers Borrower may request in writing at any time or from time to time after the Closing Date, by notice from the Parent to the Agent (whereupon the Agent shall promptly deliver a copy to each of the Lenders), request that one or more additional asset-based revolving loan facilities be established hereunder (each a “Foreign Subsidiary Incremental Facility”, the commitments of the lenders Lenders thereunder, the “Foreign Subsidiary Incremental CommitmentRevolver Commitments” any such and the loans thereunder, the “Foreign Subsidiary Incremental Revolver Loans”) and/or that any then-then existing Foreign Subsidiary Incremental Commitments Facility be increased, in each case, denominated in Dollars or another currency agreed to by the Agent and the Foreign Subsidiary Lenders providing such Foreign Subsidiary Incremental Facility and case in a minimum amount of $25,000,000, or in increments an increment of $10,000,000 in excess thereof; provided that, in each case, (i) the aggregate principal amount of Foreign Subsidiary Incremental Commitments Facilities established pursuant to this clause (cSection 2.1.4(e) shall not exceed $250,000,000100,000,000 less, to the extent in excess of $300,000,000; the aggregate principal amount of increases in Revolver Commitments made pursuant to Section 2.1.4(d); (ii) the borrowers of such Foreign Subsidiary Incremental Facilities (the “Foreign Subsidiary Borrowers”) shall be whollyWholly-owned Owned Subsidiaries of Parent the Borrower that are organized under the laws of Canada, England & Wales, the Netherlands, Netherlands or Germany or such other jurisdiction as agreed to by the Agent and the Lenders providing such Foreign Subsidiary Incremental Loans (or, in each case, any state, province or territory thereof, as applicable) (provided that for the avoidance of doubt, such Foreign Subsidiary Borrower shall not be required to become a Guarantor with respect to any Loan); (iii) the borrowing base established for any such Foreign Subsidiary Incremental Facility (including the definitions and components thereof) will be reasonably acceptable to the Agent; (iv) the Agent and Foreign Subsidiary Lenders providing such Foreign Subsidiary Incremental Facility will have received on or prior to the effectiveness of such Foreign Subsidiary Incremental Facility customary field examinations and appraisals, in form and substance reasonably satisfactory to the Agent and such Foreign Subsidiary Lenders, of the Foreign Subsidiary Borrowers’ assets that will be included in the borrowing base for such Foreign Subsidiary Incremental Facility; (v) the advance rates with respect to the collateral of the Foreign Subsidiary Borrowers (the “Foreign Subsidiary Collateral”) under any such Foreign Subsidiary Incremental Facility shall be no higher than the advance rates applicable to the Tranche A Revolving Revolver Loans; (vi) the Foreign Subsidiary Lenders that provide such Foreign Subsidiary Incremental Facility shall benefit from a first-priority perfected security interest in the Foreign Subsidiary Collateral for such Foreign Subsidiary Incremental Facility pursuant to documentation reasonably satisfactory to the AgentFacility; it being agreed that no Lender (other than a Foreign Subsidiary Lender in its capacity as such) will benefit from any security interest in the Foreign Subsidiary Collateral); (vii) any such Foreign Subsidiary Incremental Facility (x) may benefit from a guaranty from the Borrowers Borrower and the Guarantors which guaranty may be secured by the Collateral on a junior basis (including by operation of modifying the provisions of Section 5.6 hereof) to the Liens securing the Obligations of the Lender Group Secured Parties (other than any Foreign Subsidiary Lender or New Foreign Subsidiary Lender) or (y) to the extent requested by the Borrowers Borrower or the Agent, such Foreign Subsidiary Incremental Facility may benefit from a guaranty from the Borrower and the Guarantors which guaranty may be secured by the Collateral on a pari passu basis with the Liens securing the Obligations of the Lender Group Secured Parties and, in the event such Foreign Subsidiary Incremental Facility is secured on a pari passu basis with the Liens securing the Obligations of the Lender GroupSecured Parties, (A) each Lender (including each Foreign Subsidiary Lender) shall enter into a customary loss sharing agreement in form and substance reasonably acceptable to the Agent and the Supermajority Lenders or (B) the post-enforcement “waterfall” under Section 2.4(b)(iv) shall be amended such that the proceeds of the Collateral of the Loan Parties organized in the United States (or any state or territory thereof) are applied to the Foreign Subsidiary Borrower’s Obligations only after the other Obligations have been paid in fullRequired Lenders; (viii) the maturity date of any such Foreign Subsidiary Incremental Facility will be the Maturity Revolver Termination Date; (ix) each Foreign Subsidiary Borrower shall have appointed a process agent that is a Person incorporated or organized under the laws of the United States of America, any state thereof or in the District of Columbia; (x) no Default or Event of Default shall have occurred and be continuing or shall occur as a result of such establishment or increase in Foreign Subsidiary Incremental Facilities, as applicable; (xi) the representations and warranties contained in the Loan Documents shall be accurate in all material respects (or in all respects with respect to any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language) before and after such establishment or increase in Foreign Subsidiary Incremental Facilities, as applicable; (xii) prior to the date of such establishment or increase, each Lender shall have received written notice from Agent of the aggregate principal amount of such requested Foreign Subsidiary Incremental Facility or increase thereto, as applicable; (xiiixii) notwithstanding anything to the contrary in this Agreement or any of the other Loan Documents, (a) the Obligations of the Foreign Subsidiary Borrowers under this Agreement or any of the other Loan Documents shall be separate and distinct from the Obligations of any Loan Party organized in the United States including, without limitation, the Parent, and shall be expressly limited to the Obligations of each applicable Foreign Subsidiary Borrower, (b) the liability of any Foreign Subsidiary Borrower for the payment and performance of its covenants, representations and warranties or obligations (payment or otherwise) set forth in this Agreement and the other Loan Documents shall be several from but not joint with the Obligations of the Parent and any other Loan Party organized in the United States, and (c) the Foreign Subsidiary Collateral, or any other credit support provided by the Foreign Subsidiary Borrowers, shall not secure or be applied in satisfaction, by way of payment, prepayment, or otherwise, of all or any portion of the Obligations of the Parent and any other Loan Party organized in the United States; and (xiv) the Borrowers shall, and shall cause their its applicable Subsidiaries (including any applicable Foreign Subsidiary Borrowers) to, execute and deliver such documents, opinions, certificates, documents and instruments or information (including any “know your customer” information and any Beneficial Ownership Regulation information reasonably requested by the Agent or any Lender (through the Agent)) and take such other actions as may be reasonably requested by Agent in connection with such establishment or increase, as applicable, and (xiii) such establishment or increase, as applicable, of Foreign Subsidiary Incremental Facilities shall be subject to successful syndication thereof. Any request under this Section 2.16(c2.1.4(e) shall be submitted by the Borrowers Borrower to Agent (and Agent shall forward copies to the Lenders), specify the proposed effective date and the amount of each such requested Foreign Subsidiary Incremental Facility or increase thereto, as applicable, and be accompanied by an officer’s certificate of the Borrowers Borrower stating that (x) no Default or Event of Default exists or will occur as a result of such establishment or increase(s), as applicable and (y) the representations and warranties contained in the Loan Documents are accurate in all material respects (or in all respects with respect to any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language) before and after the such establishment or increase(s), as applicable. The Borrowers Borrower may also specify any fees offered to those Lenders and/or Additional Lenders (the “Foreign Subsidiary Lenders”) that agree to provide such Foreign Subsidiary Incremental Facilities or increases thereto, as applicable, which fees may be variable based upon the amount by which any such Foreign Subsidiary Lender is willing to increase the principal amount of its Foreign Subsidiary Incremental Revolver Commitments and/or provide a new Foreign Subsidiary Incremental Facility, as applicable. No Lender shall have any obligation, express or implied, to offer to provide any Foreign Subsidiary Incremental Facility or to increase its existing Foreign Subsidiary Revolver Commitments. Only the consent of each Foreign Subsidiary Lender and Agent shall be required for the establishment of a Foreign Subsidiary Incremental Facility and/or increase in the aggregate principal amount of the Foreign Subsidiary Revolver Commitments pursuant to this Section 2.1.4(e). No Lender that elects not to increase the principal amount of its Foreign Subsidiary Revolver Commitment may be replaced in respect of its existing Foreign Subsidiary Revolver Commitment as a result thereof without such Lender’s consent. Each Foreign Subsidiary Lender that desires to provide a Foreign Subsidiary Incremental Facility and/or increase its Foreign Subsidiary Revolver Commitment (each a “Foreign Subsidiary Responding Lender”), shall as soon as practicable specify the amount of each such proposed Foreign Subsidiary Revolver Commitment or increase thereto, as applicable, which it is willing to assume. If the total amount that Foreign Subsidiary Responding Lenders are willing to provide and/or increase, as applicable, their Foreign Subsidiary Revolver Commitments exceeds the amount of the requested Foreign Subsidiary Incremental Facility or increase of Foreign Subsidiary Revolver Commitments., as applicable, Agent shall allocate the proposed Foreign Subsidiary Revolver Commitments or increases thereto, as applicable, among the Foreign Subsidiary Responding Lenders ratably in proportion to the amount that each Foreign Subsidiary Responding Lender specified that it was willing to assume. If the total amount that the Foreign Subsidiary Responding Lenders are willing to provide and/or increase their Foreign Subsidiary Revolver Commitments, as applicable, is less than the amount of the proposed Foreign Subsidiary Incremental Facility or increase of the Foreign Subsidiary
Appears in 1 contract
Samples: Loan and Security Agreement (Ak Steel Holding Corp)
Foreign Subsidiary Incremental Facilities. The Borrowers may at any time or from time to time after the Closing Date, by notice from the Parent to the Agent (whereupon the Agent shall promptly deliver a copy to each of the Lenders), request one or more additional asset-based revolving loan facilities be established hereunder (each a “Foreign Subsidiary Incremental Facility”, the commitments of the lenders thereunder, the “Foreign Subsidiary Incremental Commitment” any such loans thereunder, the “Foreign Subsidiary Incremental Loans”) and/or that any then-existing Foreign Subsidiary Incremental Commitments be increased, in each case, denominated in Dollars or another currency agreed to by the Agent and the Foreign Subsidiary Lenders providing such Foreign Subsidiary Incremental Facility and in a minimum amount of $25,000,000, or in increments of $10,000,000 in excess thereof; provided that, in each case, (i) the aggregate principal amount of Foreign Subsidiary Incremental Commitments established pursuant to this clause (c) shall not exceed $250,000,000100,000,000 less, to the extent in excess of $400,000,000, the aggregate principal amount of Upsize Incremental Commitments made pursuant to Section 2.16(a) greater than $400,000,000; (ii) the borrowers of such Foreign Subsidiary Incremental Facilities (the “Foreign Subsidiary Borrowers”) shall be wholly-owned Subsidiaries of Parent that are organized under the laws of Canada, England & Wales, the Netherlands, Germany or such other jurisdiction as agreed to by the Agent and the Lenders providing such Foreign Subsidiary Incremental Loans (or, in each case, any state, province or territory thereof, as applicable) (provided that for the avoidance of doubt, such Foreign Subsidiary Borrower shall not be required to become a Guarantor with respect to any Loan); (iii) the borrowing base established for any such Foreign Subsidiary Incremental Facility (including the definitions and components thereof) will be reasonably acceptable to the Agent; (iv) the Agent and Foreign Subsidiary Lenders providing such Foreign Subsidiary Incremental Facility will have received on or prior to the effectiveness of such Foreign Subsidiary Incremental Facility customary field examinations and appraisals, in form and substance reasonably satisfactory to the Agent and such Foreign Subsidiary Lenders, of the Foreign Subsidiary Borrowers’ assets that will be included in the borrowing base for such Foreign Subsidiary Incremental Facility; (v) the advance rates with respect to the collateral of the Foreign Subsidiary Borrowers (the “Foreign Subsidiary Collateral”) under any such Foreign Subsidiary Incremental Facility shall be no higher than the advance rates applicable to the Tranche A Revolving Loans; (vi) the Foreign Subsidiary Lenders that provide such Foreign Subsidiary Incremental Facility shall benefit from a first-priority perfected security interest in the Foreign Subsidiary Collateral for such Foreign Subsidiary Incremental Facility pursuant to documentation reasonably satisfactory to the Agent; it being agreed that no Lender (other than a Foreign Subsidiary Lender in its capacity as such) will benefit from any security interest in the Foreign Subsidiary Collateral; (vii) any such Foreign Subsidiary Incremental Facility (x) may benefit from a guaranty from the Borrowers and the Guarantors which guaranty may be secured by the Collateral on a junior basis to the Liens securing the Obligations of the Lender Group (other than any Foreign Subsidiary Lender) or (y) to the extent requested by the Borrowers or the Agent, such Foreign Subsidiary Incremental Facility may benefit from a guaranty from the Borrower and the Guarantors which guaranty may be secured by the Collateral on a pari passu basis with the Liens securing the Obligations of the Lender Group and, in the event such Foreign Subsidiary Incremental Facility is secured on a pari passu basis with the Liens securing the Obligations of the Lender Group, (A) each Lender (including each Foreign Subsidiary Lender) shall enter into a customary loss sharing agreement in form and substance reasonably acceptable to the Agent and the Supermajority Lenders or (B) the post-enforcement “waterfall” under Section 2.4(b)(iv) shall be amended such that the proceeds of the Collateral of the Loan Parties organized in the United States (or any state or territory thereof) are applied to the Foreign Subsidiary Borrower’s Obligations only after the other Obligations have been paid in full; (viii) the maturity date of any such Foreign Subsidiary Incremental Facility will be the Maturity Date; (ix) each Foreign Subsidiary Borrower shall have appointed a process agent that is a Person incorporated or organized under the laws of the United States of America, any state thereof or in the District of Columbia; (x) no Default or Event of Default shall have occurred and be continuing or shall occur as a result of such establishment or increase in Foreign Subsidiary Incremental Facilities, as applicable; (xi) the representations and warranties contained in the Loan Documents shall be accurate in all material respects (or in all respects with respect to any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language) before and after such establishment or increase in Foreign Subsidiary Incremental Facilities, as applicable; (xii) prior to the date of such establishment or increase, each Lender shall have received written notice from Agent of the aggregate principal amount of such requested Foreign Subsidiary Incremental Facility or increase thereto, as applicable; (xiii) notwithstanding anything to the contrary in this Agreement or any of the other Loan Documents, (a) the Obligations of the Foreign Subsidiary Borrowers under this Agreement or any of the other Loan Documents shall be separate and distinct from the Obligations of any Loan Party organized in the United States including, without limitation, the Parent, and shall be expressly limited to the Obligations of each applicable Foreign Subsidiary Borrower, (b) the liability of any Foreign Subsidiary Borrower for the payment and performance of its covenants, representations and warranties or obligations (payment or otherwise) set forth in this Agreement and the other Loan Documents shall be several from but not joint with the Obligations of the Parent and any other Loan Party organized in the United States, and (c) the Foreign Subsidiary Collateral, or any other credit support provided by the Foreign Subsidiary Borrowers, shall not secure or be applied in satisfaction, by way of payment, prepayment, or otherwise, of all or any portion of the Obligations of the Parent and any other Loan Party organized in the United States; and (xiv) the Borrowers shall, and shall cause their applicable Subsidiaries (including any applicable Foreign Subsidiary Borrowers) to, execute and deliver such documents, opinions, certificates, instruments or information (including any “know your customer” information and any Beneficial Ownership Regulation information reasonably requested by the Agent or any Lender (through the Agent)) and take such other actions as may be reasonably requested by Agent in connection with such establishment or increase, as applicable. Any request under this Section 2.16(c) shall be submitted by the Borrowers to Agent (and Agent shall forward copies to the Lenders), specify the proposed effective date and the amount of each such requested Foreign Subsidiary Incremental Facility or increase thereto, as applicable, and be accompanied by an officer’s certificate of the Borrowers stating that (x) no Default or Event of Default exists or will occur as a result of such establishment or increase(s), as applicable and (y) the representations and warranties contained in the Loan Documents are accurate in all material respects (or in all respects with respect to any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language) before and after the such establishment or increase(s), as applicable. The Borrowers may also specify any fees offered to those Lenders and/or Additional Lenders (the “Foreign Subsidiary Lenders”) that agree to provide such Foreign Subsidiary Incremental Facilities or increases thereto, as applicable, which fees may be variable based upon the amount by which any such Foreign Subsidiary Lender is willing to increase the principal amount of its Foreign Subsidiary Incremental Commitments and/or provide a new Foreign Subsidiary Incremental Facility, as applicable. No Lender shall have any obligation, express or implied, to offer to provide any Foreign Subsidiary Incremental Facility or to increase its existing Foreign Subsidiary Incremental Commitments.
Appears in 1 contract
Samples: Asset Based Revolving Credit Agreement (Cleveland-Cliffs Inc.)
Foreign Subsidiary Incremental Facilities. The Borrowers may at any time or from time to time after the Closing Date, by notice from the Parent to the Agent (whereupon the Agent shall promptly deliver a copy to each of the Lenders), request one or more additional asset-based revolving loan facilities be established hereunder (each a “Foreign Subsidiary Incremental Facility”, the commitments of the lenders thereunder, the “Foreign Subsidiary Incremental Commitment” any such loans thereunder, the “Foreign Subsidiary Incremental Loans”) and/or that any then-existing Foreign Subsidiary Incremental Commitments be increased, in each case, denominated in Dollars or another currency agreed to by the Agent and the Foreign Subsidiary Lenders providing such Foreign Subsidiary Incremental Facility and in a minimum amount of $25,000,000, or in increments of $10,000,000 in excess thereof; provided that, in each case, (i) the aggregate principal amount of Foreign Subsidiary Incremental Commitments established pursuant to this clause (c) shall not exceed $250,000,000100,000,000 less, to the extent in excess of $300,000,000400,000,000, the aggregate principal amount of Upsize Incremental Commitments made pursuant to Section 2.16(a) greater than $300,000,000400,000,000; (ii) the borrowers of such Foreign Subsidiary Incremental Facilities (the “Foreign Subsidiary Borrowers”) shall be wholly-owned Subsidiaries of Parent that are organized under the laws of Canada, England & Wales, the Netherlands, Germany or such other jurisdiction as agreed to by the Agent and the Lenders providing such Foreign Subsidiary Incremental Loans (or, in each case, any state, province or territory thereof, as applicable) (provided that for the avoidance of doubt, such Foreign Subsidiary Borrower shall not be required to become a Guarantor with respect to any Loan); (iii) the borrowing base established for any such Foreign Subsidiary Incremental Facility (including the definitions and components thereof) will be reasonably acceptable to the Agent; (iv) the Agent and Foreign Subsidiary Lenders providing such Foreign Subsidiary Incremental Facility will have received on or prior to the effectiveness of such Foreign Subsidiary Incremental Facility customary field examinations and appraisals, in form and substance reasonably satisfactory to the Agent and such Foreign Subsidiary Lenders, of the Foreign Subsidiary Borrowers’ assets that will be included in the borrowing base for such Foreign Subsidiary Incremental Facility; (v) the advance rates with respect to the collateral of the Foreign Subsidiary Borrowers (the “Foreign Subsidiary Collateral”) under any such Foreign Subsidiary Incremental Facility shall be no higher than the advance rates applicable to the Tranche A Revolving Loans; (vi) the Foreign Subsidiary Lenders that provide such Foreign Subsidiary Incremental Facility shall benefit from a first-priority perfected security interest in the Foreign Subsidiary Collateral for such Foreign Subsidiary Incremental Facility pursuant to documentation reasonably satisfactory to the Agent; it being agreed that no Lender (other than a Foreign Subsidiary Lender in its capacity as such) will benefit from any security interest in the Foreign Subsidiary Collateral; (vii) any such Foreign Subsidiary Incremental Facility (x) may benefit from a guaranty from the Borrowers and the Guarantors which guaranty may be secured by the Collateral on a junior basis to the Liens securing the Obligations of the Lender Group (other than any Foreign Subsidiary Lender) or (y) to the extent requested by the Borrowers or the Agent, such Foreign Subsidiary Incremental Facility may benefit from a guaranty from the Borrower and the Guarantors which guaranty may be secured by the Collateral on a pari passu basis with the Liens securing the Obligations of the Lender Group and, in the event such Foreign Subsidiary Incremental Facility is secured on a pari passu basis with the Liens securing the Obligations of the Lender Group, (A) each Lender (including each Foreign Subsidiary Lender) shall enter into a customary loss sharing agreement in form and substance reasonably acceptable to the Agent and the Supermajority Lenders or (B) the post-enforcement “waterfall” under Section 2.4(b)(iv) shall be amended such that the proceeds of the Collateral of the Loan Parties organized in the United States (or any state or territory thereof) are applied to the Foreign Subsidiary Borrower’s Obligations only after the other Obligations have been paid in full; (viii) the maturity date of any such Foreign Subsidiary Incremental Facility will be the Maturity Date; (ix) each Foreign Subsidiary Borrower shall have appointed a process agent that is a Person incorporated or organized under the laws of the United States of America, any state thereof or in the District of Columbia; (x) no Default or Event of Default shall have occurred and be continuing or shall occur as a result of such establishment or increase in Foreign Subsidiary Incremental Facilities, as applicable; (xi) the representations and warranties contained in the Loan Documents shall be accurate in all material respects (or in all respects with respect to any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language) before and after such establishment or increase in Foreign Subsidiary Incremental Facilities, as applicable; (xii) prior to the date of such establishment or increase, each Lender shall have received written notice from Agent of the aggregate principal amount of such requested Foreign Subsidiary Incremental Facility or increase thereto, as applicable; (xiii) notwithstanding anything to the contrary in this Agreement or any of the other Loan Documents, (a) the Obligations of the Foreign Subsidiary Borrowers under this Agreement or any of the other Loan Documents shall be separate and distinct from the Obligations of any Loan Party organized in the United States including, without limitation, the Parent, and shall be expressly limited to the Obligations of each applicable Foreign Subsidiary Borrower, (b) the liability of any Foreign Subsidiary Borrower for the payment and performance of its covenants, representations and warranties or obligations (payment or otherwise) set forth in this Agreement and the other Loan Documents shall be several from but not joint with the Obligations of the Parent and any other Loan Party organized in the United States, and (c) the Foreign Subsidiary Collateral, or any other credit support provided by the Foreign Subsidiary Borrowers, shall not secure or be applied in satisfaction, by way of payment, prepayment, or otherwise, of all or any portion of the Obligations of the Parent and any other Loan Party organized in the United States; and (xiv) the Borrowers shall, and shall cause their applicable Subsidiaries (including any applicable Foreign Subsidiary Borrowers) to, execute and deliver such documents, opinions, certificates, instruments or information (including any “know your customer” information and any Beneficial Ownership Regulation information reasonably requested by the Agent or any Lender (through the Agent)) and take such other actions as may be reasonably requested by Agent in connection with such establishment or increase, as applicable. Any request under this Section 2.16(c) shall be submitted by the Borrowers to Agent (and Agent shall forward copies to the Lenders), specify the proposed effective date and the amount of each such requested Foreign Subsidiary Incremental Facility or increase thereto, as applicable, and be accompanied by an officer’s certificate of the Borrowers stating that (x) no Default or Event of Default exists or will occur as a result of such establishment or increase(s), as applicable and (y) the representations and warranties contained in the Loan Documents are accurate in all material respects (or in all respects with respect to any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language) before and after the such establishment or increase(s), as applicable. The Borrowers may also specify any fees offered to those Lenders and/or Additional Lenders (the “Foreign Subsidiary Lenders”) that agree to provide such Foreign Subsidiary Incremental Facilities or increases thereto, as applicable, which fees may be variable based upon the amount by which any such Foreign Subsidiary Lender is willing to increase the principal amount of its Foreign Subsidiary Incremental Commitments and/or provide a new Foreign Subsidiary Incremental Facility, as applicable. No Lender shall have any obligation, express or implied, to offer to provide any Foreign Subsidiary Incremental Facility or to increase its existing Foreign Subsidiary Incremental Commitments.
Appears in 1 contract
Samples: Asset Based Revolving Credit Agreement (Cleveland-Cliffs Inc.)
Foreign Subsidiary Incremental Facilities. The Borrowers Borrower may request in writing at any time or from time to time after the Closing Date, by notice from the Parent to the Agent (whereupon the Agent shall promptly deliver a copy to each of the Lenders), request that one or more additional asset-based revolving loan facilities be established hereunder (each a “Foreign Subsidiary Incremental Facility”, the commitments of the lenders Lenders thereunder, the “Foreign Subsidiary Incremental CommitmentRevolver Commitments” any such and the loans thereunder, the “Foreign Subsidiary Incremental Revolver Loans”) and/or that any then-then existing Foreign Subsidiary Incremental Commitments Facility be increased, in each case, denominated in Dollars or another currency agreed to by the Agent and the Foreign Subsidiary Lenders providing such Foreign Subsidiary Incremental Facility and case in a minimum amount of $25,000,000, or in increments an increment of $10,000,000 in excess thereof; provided that, in each case, (i) the aggregate principal amount of Foreign Subsidiary Incremental Commitments Facilities established pursuant to this clause (cSection 2.1.4(e) shall not exceed $250,000,000100,000,000 less, to the extent in excess of $300,000,000; the aggregate principal amount of increases in Revolver Commitments made pursuant to Section 2.1.4(d); (ii) the borrowers of such Foreign Subsidiary Incremental Facilities (the “Foreign Subsidiary Borrowers”) shall be whollyWholly-owned Owned Subsidiaries of Parent the Borrower that are organized under the laws of Canada, England & Wales, the Netherlands, Netherlands or Germany or such other jurisdiction as agreed to by the Agent and the Lenders providing such Foreign Subsidiary Incremental Loans (or, in each case, any state, province or territory thereof, as applicable) (provided that for the avoidance of doubt, such Foreign Subsidiary Borrower shall not be required to become a Guarantor with respect to any Loan); (iii) the borrowing base established for any such Foreign Subsidiary Incremental Facility (including the definitions and components thereof) will be reasonably acceptable to the Agent; (iv) the Agent and Foreign Subsidiary Lenders providing such Foreign Subsidiary Incremental Facility will have received on or prior to the effectiveness of such Foreign Subsidiary Incremental Facility customary field examinations and appraisals, in form and substance reasonably satisfactory to the Agent and such Foreign Subsidiary Lenders, of the Foreign Subsidiary Borrowers’ assets that will be included in the borrowing base for such Foreign Subsidiary Incremental Facility; (v) the advance rates with respect to the collateral of the Foreign Subsidiary Borrowers (the “Foreign Subsidiary Collateral”) under any such Foreign Subsidiary Incremental Facility shall be no higher than the advance rates applicable to the Tranche A Revolving Revolver Loans; (vi) the Foreign Subsidiary Lenders that provide such Foreign Subsidiary Incremental Facility shall benefit from a first-priority perfected security interest in the Foreign Subsidiary Collateral for such Foreign Subsidiary Incremental Facility pursuant to documentation reasonably satisfactory to the AgentFacility; it being agreed that no Lender (other than a Foreign Subsidiary Lender in its capacity as such) will benefit from any security interest in the Foreign Subsidiary Collateral); (vii) any such Foreign Subsidiary Incremental Facility (x) may benefit from a guaranty from the Borrowers Borrower and the Guarantors which guaranty may be secured by the Collateral on a junior basis (including by operation of modifying the provisions of Section 5.6 hereof) to the Liens securing the Obligations of the Lender Group Secured Parties (other than any Foreign Subsidiary Lender or New Foreign Subsidiary Lender) or (y) to the extent requested by the Borrowers Borrower or the Agent, such Foreign Subsidiary Incremental Facility may benefit from a guaranty from the Borrower and the Guarantors which guaranty may be secured by the Collateral on a pari passu basis with the Liens securing the Obligations of the Lender Group Secured Parties and, in the event such Foreign Subsidiary Incremental Facility is secured on a pari passu basis with the Liens securing the Obligations of the Lender GroupSecured Parties, (A) each Lender (including each Foreign Subsidiary Lender) shall enter into a customary loss sharing agreement in form and substance reasonably acceptable to the Agent and the Supermajority Lenders or (B) the post-enforcement “waterfall” under Section 2.4(b)(iv) shall be amended such that the proceeds of the Collateral of the Loan Parties organized in the United States (or any state or territory thereof) are applied to the Foreign Subsidiary Borrower’s Obligations only after the other Obligations have been paid in fullRequired Lenders; (viii) the maturity date of any such Foreign Subsidiary Incremental Facility will be the Maturity Revolver Termination Date; (ix) each Foreign Subsidiary Borrower shall have appointed a process agent that is a Person incorporated or organized under the laws of the United States of America, any state thereof or in the District of Columbia; (x) no Default or Event of Default shall have occurred and be continuing or shall occur as a result of such establishment or increase in Foreign Subsidiary Incremental Facilities, as applicable; (xi) the representations and warranties contained in the Loan Documents shall be accurate in all material respects (or in all respects with respect to any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language) before and after such establishment or increase in Foreign Subsidiary Incremental Facilities, as applicable; (xii) prior to the date of such establishment or increase, each Lender shall have received written notice from Agent of the aggregate principal amount of such requested Foreign Subsidiary Incremental Facility or increase thereto, as applicable; (xiiixii) notwithstanding anything to the contrary in this Agreement or any of the other Loan Documents, (a) the Obligations of the Foreign Subsidiary Borrowers under this Agreement or any of the other Loan Documents shall be separate and distinct from the Obligations of any Loan Party organized in the United States including, without limitation, the Parent, and shall be expressly limited to the Obligations of each applicable Foreign Subsidiary Borrower, (b) the liability of any Foreign Subsidiary Borrower for the payment and performance of its covenants, representations and warranties or obligations (payment or otherwise) set forth in this Agreement and the other Loan Documents shall be several from but not joint with the Obligations of the Parent and any other Loan Party organized in the United States, and (c) the Foreign Subsidiary Collateral, or any other credit support provided by the Foreign Subsidiary Borrowers, shall not secure or be applied in satisfaction, by way of payment, prepayment, or otherwise, of all or any portion of the Obligations of the Parent and any other Loan Party organized in the United States; and (xiv) the Borrowers shall, and shall cause their its applicable Subsidiaries (including any applicable Foreign Subsidiary Borrowers) to, execute and deliver such documents, opinions, certificates, documents and instruments or information (including any “know your customer” information and any Beneficial Ownership Regulation information reasonably requested by the Agent or any Lender (through the Agent)) and take such other actions as may be reasonably requested by Agent in connection with such establishment or increase, as applicable, and (xiii) such establishment or increase, as applicable, of Foreign Subsidiary Incremental Facilities shall be subject to successful syndication thereof. Any request under this Section 2.16(c2.1.4(e) shall be submitted by the Borrowers Borrower to Agent (and Agent shall forward copies to the Lenders), specify the proposed effective date and the amount of each such requested Foreign Subsidiary Incremental Facility or increase thereto, as applicable, and be accompanied by an officer’s certificate of the Borrowers Borrower stating that (x) no Default or Event of Default exists or will occur as a result of such establishment or increase(s), as applicable and (y) the representations and warranties contained in the Loan Documents are accurate in all material respects (or in all respects with respect to any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language) before and after the such establishment or increase(s), as applicable. The Borrowers Borrower may also specify any fees offered to those Lenders and/or Additional Lenders (the “Foreign Subsidiary Lenders”) that agree to provide such Foreign Subsidiary Incremental Facilities or increases thereto, as applicable, which fees may be variable based upon the amount by which any such Foreign Subsidiary Lender is willing to increase the principal amount of its Foreign Subsidiary Incremental Revolver Commitments and/or provide a new Foreign Subsidiary Incremental Facility, as applicable. No Lender shall have any obligation, express or implied, to offer to provide any Foreign Subsidiary Incremental Facility or to increase its existing Foreign Subsidiary Revolver Commitments. Only the consent of each Foreign Subsidiary Lender and Agent shall be required for the establishment of a Foreign Subsidiary Incremental CommitmentsFacility and/or increase in the aggregate principal amount of the Foreign Subsidiary Revolver Commitments pursuant to this Section 2.1.4(e). No Lender that elects not to increase the principal amount of its Foreign Subsidiary Revolver Commitment may be replaced in respect of its existing Foreign Subsidiary Revolver Commitment as a result thereof without such Lender’s consent.
Appears in 1 contract
Samples: Loan and Security Agreement (Ak Steel Holding Corp)
Foreign Subsidiary Incremental Facilities. The Borrowers Borrower Agent may request in writing at any time or from time to time after the Closing Date, by notice from the Parent to the Agent (whereupon the Agent shall promptly deliver a copy to each establishment of the Lenders), request one or more an additional asset-based revolving loan facilities be established facility hereunder (each a “"Foreign Subsidiary Incremental Facility”", the commitments of the lenders Lenders thereunder, the “"Foreign Subsidiary Incremental Commitment” any such Revolver Commitments" and the loans thereunder, the “"Foreign Subsidiary Incremental Revolver Loans”") and/or that any then-or the increase of a then existing Foreign Subsidiary Incremental Commitments be increasedFacility, in each case, denominated in Dollars or another currency agreed to by the Agent and the Foreign Subsidiary Lenders providing such Foreign Subsidiary Incremental Facility and case in a minimum amount of $25,000,00010,000,000, or in increments an increment of $10,000,000 in excess thereof; provided that, in each case, (i) the aggregate principal amount of Foreign Subsidiary Incremental Commitments Facility established pursuant to this clause (c) Section 2.1.6 shall not exceed the lesser of (x) $250,000,00050,000,000 and (y) an amount equal to $500,000,000 minus the aggregate principal amount of increases in Revolver Commitments made pursuant to Section 2.2.1; (ii) the borrowers of under such Foreign Subsidiary Incremental Facilities Facility (the “"Foreign Subsidiary Borrowers”") shall be whollyWholly-owned Owned Subsidiaries of Parent the Borrower that are organized under the laws of Canada, England & Wales, the Netherlands, Germany or such other jurisdiction as agreed to by the Agent and the Lenders providing such Foreign Subsidiary Incremental Loans Canada (or, in each case, any state, province or territory thereof, as applicable) (provided that for the avoidance of doubt, such Foreign Subsidiary Borrower shall not be required to become a Guarantor with respect to any Loan); (iii) the borrowing base established for any such Foreign Subsidiary Incremental Facility (including the definitions and components thereof) will be reasonably acceptable to the Agent; (iv) the Agent and Foreign Subsidiary Lenders providing such the Foreign Subsidiary Incremental Facility will have received on or prior to the effectiveness of such the Foreign Subsidiary Incremental Facility customary field examinations and appraisals, in form and substance reasonably satisfactory to the Agent and such Foreign Subsidiary Lenders, of the Foreign Subsidiary Borrowers’ ' assets that will be included in the borrowing base for such the Foreign Subsidiary Incremental Facility; (v) the advance rates with respect to the collateral of the Foreign Subsidiary Borrowers (the “"Foreign Subsidiary Collateral”") under any such the Foreign Subsidiary Incremental Facility shall be no higher than the advance rates applicable to the Tranche A Revolving Revolver Loans; (vi) the Foreign Subsidiary Lenders that provide such the Foreign Subsidiary Incremental Facility shall benefit from a first-priority perfected security interest in the Foreign Subsidiary Collateral for such the Foreign Subsidiary Incremental Facility pursuant to documentation reasonably satisfactory to the AgentFacility; it being agreed that no Lender (other than a Foreign Subsidiary Lender in its capacity as such) will benefit from any security interest in the Foreign Subsidiary Collateral); (vii) any such Foreign Subsidiary Incremental Facility (x) may benefit from a guaranty from the Borrowers and the Guarantors which guaranty may be secured by the Collateral on a junior basis to the Liens securing the Obligations of the Lender Group (other than any Foreign Subsidiary Lender) or (y) to the extent requested by the Borrowers or the Agent, such Foreign Subsidiary Incremental Facility may benefit from a guaranty from the Borrower and the Guarantors which guaranty may be secured by the Collateral on a pari passu basis with the Liens securing the Obligations of the Lender Group and, in the event such Foreign Subsidiary Incremental Facility is secured on a pari passu basis with the Liens securing the Obligations of the Lender Group, (A) each Lender (including each Foreign Subsidiary Lender) shall enter into a customary loss sharing agreement in form and substance reasonably acceptable to the Agent and the Supermajority Lenders or (B) the post-enforcement “waterfall” under Section 2.4(b)(iv) shall be amended such that the proceeds of the Collateral of the Loan Parties organized in the United States (or any state or territory thereof) are applied to the Foreign Subsidiary Borrower’s Obligations only after the other Obligations have been paid in full; (viii) the maturity date of any such Foreign Subsidiary Incremental Facility will be the Maturity Date; (ix) each Foreign Subsidiary Borrower shall have appointed a process agent that is a Person incorporated or organized under the laws of the United States of America, any state thereof or in the District of Columbia; (x) no Default or Event of Default shall have occurred and be continuing or shall occur as a result of such establishment or increase in Foreign Subsidiary Incremental Facilities, as applicable; (xi) the representations and warranties contained in the Loan Documents shall be accurate in all material respects (or in all respects with respect to any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language) before and after such establishment or increase in Foreign Subsidiary Incremental Facilities, as applicable; (xii) prior to the date of such establishment or increase, each Lender shall have received written notice from Agent of the aggregate principal amount of such requested Foreign Subsidiary Incremental Facility or increase thereto, as applicable; (xiii) notwithstanding anything to the contrary in this Agreement or any of the other Loan Documents, (a) the Obligations of the Foreign Subsidiary Borrowers under this Agreement or any of the other Loan Documents shall be separate and distinct from the Obligations of any Loan Party organized in the United States including, without limitation, the Parent, and shall be expressly limited to the Obligations of each applicable Foreign Subsidiary Borrower, (b) the liability of any Foreign Subsidiary Borrower for the payment and performance of its covenants, representations and warranties or obligations (payment or otherwise) set forth in this Agreement and the other Loan Documents shall be several from but not joint with the Obligations of the Parent and any other Loan Party organized in the United States, and (c) the Foreign Subsidiary Collateral, or any other credit support provided by the Foreign Subsidiary Borrowers, shall not secure or be applied in satisfaction, by way of payment, prepayment, or otherwise, of all or any portion of the Obligations of the Parent and any other Loan Party organized in the United States; and (xiv) the Borrowers shall, and shall cause their applicable Subsidiaries (including any applicable Foreign Subsidiary Borrowers) to, execute and deliver such documents, opinions, certificates, instruments or information (including any “know your customer” information and any Beneficial Ownership Regulation information reasonably requested by the Agent or any Lender (through the Agent)) and take such other actions as may be reasonably requested by Agent in connection with such establishment or increase, as applicable. Any request under this Section 2.16(c) shall be submitted by the Borrowers to Agent (and Agent shall forward copies to the Lenders), specify the proposed effective date and the amount of each such requested Foreign Subsidiary Incremental Facility or increase thereto, as applicable, and be accompanied by an officer’s certificate of the Borrowers stating that (x) no Default or Event of Default exists or will occur as a result of such establishment or increase(s), as applicable and (y) the representations and warranties contained in the Loan Documents are accurate in all material respects (or in all respects with respect to any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language) before and after the such establishment or increase(s), as applicable. The Borrowers may also specify any fees offered to those Lenders and/or Additional Lenders (the “Foreign Subsidiary Lenders”) that agree to provide such Foreign Subsidiary Incremental Facilities or increases thereto, as applicable, which fees may be variable based upon the amount by which any such Foreign Subsidiary Lender is willing to increase the principal amount of its Foreign Subsidiary Incremental Commitments and/or provide a new Foreign Subsidiary Incremental Facility, as applicable. No Lender shall have any obligation, express or implied, to offer to provide any Foreign Subsidiary Incremental Facility or to increase its existing Foreign Subsidiary Incremental Commitments.
Appears in 1 contract
Samples: Credit Agreement (Calumet Specialty Products Partners, L.P.)
Foreign Subsidiary Incremental Facilities. The Borrowers Borrower Agent may request in writing at any time or from time to time after the Closing Date, by notice from the Parent to the Agent (whereupon the Agent shall promptly deliver a copy to each establishment of the Lenders), request one or more an additional asset-based revolving loan facilities be established facility hereunder (each a “Foreign Subsidiary Incremental Facility”, the commitments of the lenders Lenders thereunder, the “Foreign Subsidiary Incremental CommitmentRevolver Commitments” any such and the loans thereunder, the “Foreign Subsidiary Incremental Revolver Loans”) and/or that any then-or the increase of a then existing Foreign Subsidiary Incremental Commitments be increasedFacility, in each case, denominated in Dollars or another currency agreed to by the Agent and the Foreign Subsidiary Lenders providing such Foreign Subsidiary Incremental Facility and case in a minimum amount of $25,000,00010,000,000, or in increments an increment of $10,000,000 in excess thereof; provided that, in each case, (i) the aggregate principal amount of Foreign Subsidiary Incremental Commitments Facility established pursuant to this clause (c) Section 2.1.6 shall not exceed the lesser of (x) $250,000,00050,000,000 and (y) an amount equal to $500,000,000 minus the aggregate principal amount of increases in Revolver Commitments made pursuant to Section 2.2.1; (ii) the borrowers of under such Foreign Subsidiary Incremental Facilities Facility (the “Foreign Subsidiary Borrowers”) shall be whollyWholly-owned Owned Subsidiaries of Parent the Borrower that are organized under the laws of Canada, England & Wales, the Netherlands, Germany or such other jurisdiction as agreed to by the Agent and the Lenders providing such Foreign Subsidiary Incremental Loans Canada (or, in each case, any state, province or territory thereof, as applicable) (provided that for the avoidance of doubt, such Foreign Subsidiary Borrower shall not be required to become a Guarantor with respect to any Loan); (iii) the borrowing base established for any such Foreign Subsidiary Incremental Facility (including the definitions and components thereof) will be reasonably acceptable to the Agent; (iv) the Agent and Foreign Subsidiary Lenders providing such the Foreign Subsidiary Incremental Facility will have received on or prior to the effectiveness of such the Foreign Subsidiary Incremental Facility customary field examinations and appraisals, in form and substance reasonably satisfactory to the Agent and such Foreign Subsidiary Lenders, of the Foreign Subsidiary Borrowers’ assets that will be included in the borrowing base for such the Foreign Subsidiary Incremental Facility; (v) the advance rates with respect to the collateral of the Foreign Subsidiary Borrowers (the “Foreign Subsidiary Collateral”) under any such the Foreign Subsidiary Incremental Facility shall be no higher THIRD AMENDED AND RESTATED CREDIT AGREEMENT – Page 60 than the advance rates applicable to the Tranche A Revolving Revolver Loans; (vi) the Foreign Subsidiary Lenders that provide such the Foreign Subsidiary Incremental Facility shall benefit from a first-priority perfected security interest in the Foreign Subsidiary Collateral for such the Foreign Subsidiary Incremental Facility pursuant to documentation reasonably satisfactory to the AgentFacility; it being agreed that no Lender (other than a Foreign Subsidiary Lender in its capacity as such) will benefit from any security interest in the Foreign Subsidiary Collateral); (vii) any such Foreign Subsidiary Incremental Facility (x) may benefit from a guaranty from the Borrowers and the Guarantors which guaranty may be secured by the Collateral on a junior basis to the Liens securing the Obligations of the Lender Group (other than any Foreign Subsidiary Lender) or (y) to the extent requested by the Borrowers or the Agent, such Foreign Subsidiary Incremental Facility may benefit from a guaranty from the Borrower and the Guarantors which guaranty may be secured by the Collateral on a pari passu basis with the Liens securing the Obligations of the Secured Parties (other than any Foreign Subsidiary Lender Group andor New Foreign Subsidiary Lender), in and the event provisions of Section 5.5.2 shall be deemed modified to provide that payments on any such guaranty or with the proceeds of such Collateral shall be applied to repay the Foreign Subsidiary Revolver Loans under such Foreign Subsidiary Incremental Facility is secured directly after the application thereof to repayment of principal and interest on a pari passu basis with the Liens securing the Obligations of the Lender Groupall Revolver Loans and FILO Loans, (A) and each Lender (including each Foreign Subsidiary Lender) shall enter into a customary loss sharing agreement in form and substance reasonably acceptable to the Agent and the Supermajority Lenders or (B) the post-enforcement “waterfall” under Section 2.4(b)(iv) shall be amended such that the proceeds of the Collateral of the Loan Parties organized in the United States (or any state or territory thereof) are applied to the Foreign Subsidiary Borrower’s Obligations only after the other Obligations have been paid in fullRequired Lenders; (viii) the maturity date of any such the Foreign Subsidiary Incremental Facility will be the Maturity Revolver Termination Date; (ix) each Foreign Subsidiary Borrower shall have appointed a process agent that is a Person incorporated or organized under the laws of the United States of America, any state thereof or in the District of Columbia; (x) no Default or Event of Default shall have occurred and be continuing or shall occur as a result of such establishment or increase in the Foreign Subsidiary Incremental FacilitiesFacility, as applicable; (xi) the representations and warranties contained in the Loan Documents shall be accurate in all material respects (or in all respects with respect to any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language) before and after such establishment or increase in Foreign Subsidiary Incremental Facilities, as applicable; (xii) prior to the date of such establishment or increase, each Lender shall have received written notice from Agent of the aggregate principal amount of such the requested Foreign Subsidiary Incremental Facility or increase thereto, as applicable; (xiiixii) notwithstanding anything to the contrary in this Agreement or any of the other Loan Documents, (a) the Obligations of the Foreign Subsidiary Borrowers under this Agreement or any of the other Loan Documents shall be separate and distinct from the Obligations of any Loan Party organized in the United States including, without limitation, the Parent, and shall be expressly limited to the Obligations of each applicable Foreign Subsidiary Borrower, (b) the liability of any Foreign Subsidiary Borrower for the payment and performance of its covenants, representations and warranties or obligations (payment or otherwise) set forth in this Agreement and the other Loan Documents shall be several from but not joint with the Obligations of the Parent and any other Loan Party organized in the United States, and (c) the Foreign Subsidiary Collateral, or any other credit support provided by the Foreign Subsidiary Borrowers, shall not secure or be applied in satisfaction, by way of payment, prepayment, or otherwise, of all or any portion of the Obligations of the Parent and any other Loan Party organized in the United States; and (xiv) the Borrowers Agent shall, and shall cause their its applicable Subsidiaries (including any applicable Foreign Subsidiary Borrowers) to, execute and deliver such documents, opinions, certificates, documents and instruments or information (including any “know your customer” information and any Beneficial Ownership Regulation information reasonably requested by the Agent or any Lender (through the Agent)) and take such other actions as may be reasonably requested by Agent in connection with such establishment or increase, as applicable, and (xiii) such establishment or increase, as applicable, of the Foreign Subsidiary Incremental Facility shall be subject to successful syndication thereof. Any request under this Section 2.16(c) 2.1.6 shall be submitted by the Borrowers Borrower Agent to Agent (and Agent shall forward copies to the Lenders), specify the proposed effective date and the amount of each such the requested Foreign Subsidiary Incremental Facility or increase thereto, as applicable, and be accompanied by an officer’s certificate of the Borrowers Borrower Agent stating that (x) no Default or Event of Default exists or will occur as a result of such establishment or increase(s), as applicable and (y) the representations and warranties contained in the Loan Documents are accurate in all material respects (or in all respects with respect to any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language) before and after the such establishment or increase(s), as applicable. The Borrowers Borrower Agent may also specify any fees offered to those Lenders and/or Additional Lenders (the “Foreign Subsidiary Lenders”) that agree to provide such the Foreign Subsidiary Incremental Facilities Facility or increases thereto, as applicable, which fees may be variable based upon the amount by which any such Foreign Subsidiary Lender is willing to increase the principal amount of its Foreign Subsidiary Incremental Revolver Commitments and/or provide a new Foreign Subsidiary Incremental Facility, as applicable. No Lender shall have any obligation, express or implied, to offer to provide any Foreign Subsidiary Incremental Facility or to increase its existing Foreign Subsidiary Revolver Commitments. Only the consent of each Foreign Subsidiary Lender and Agent shall be required for the establishment of a Foreign Subsidiary Incremental Facility and/or increase in the aggregate principal amount of the Foreign Subsidiary Revolver Commitments pursuant to this Section 2.1.6. No Lender that elects not to increase the principal amount of its Foreign Subsidiary Revolver Commitment may be replaced in respect of its existing Foreign Subsidiary Revolver Commitment as a result thereof without such Lender’s consent. Each Foreign Subsidiary Lender that desires to participate in the Foreign Subsidiary Incremental Facility and/or increase its Foreign Subsidiary Revolver Commitment (each a “Foreign Subsidiary Responding Lender”), shall as soon as practicable specify the amount of each such proposed Foreign Subsidiary Revolver Commitment or increase thereto, as applicable, which it is willing to assume. If the total amount that Foreign Subsidiary Responding Lenders are willing to provide and/or increase, as applicable, their Foreign Subsidiary Revolver Commitments exceeds the amount of the requested Foreign Subsidiary Incremental Facility or increase of Foreign Subsidiary Revolver Commitments, as applicable, Borrower Agent shall determine the final allocation thereof; provided that, the amount of or increase in any Foreign Subsidiary Lender’s Foreign Subsidiary Revolver Commitment shall not exceed the amount of such Foreign Subsidiary Revolver Commitment or increase thereto proposed by such Foreign Subsidiary Lender. If the total amount that the Foreign Subsidiary Responding Lenders are willing to provide and/or increase their Foreign Subsidiary Revolver Commitments, as applicable, is less than the amount of the proposed Foreign Subsidiary Incremental Facility or increase of the Foreign Subsidiary Revolver Commitments, as applicable, in either case Borrower may designate new lenders who qualify as Eligible Assignees and who are reasonably acceptable to Agent as additional Foreign Subsidiary Lenders, as applicable, hereunder in accordance with this Section 2.1.6 (each such new lender being a “New Foreign Subsidiary Lender”), which New Foreign Subsidiary Lender may assume all or a portion of the requested Foreign Subsidiary Incremental Facility or increase in the aggregate principal amount of the Foreign Subsidiary Revolver Commitments, as applicable. Each New Foreign Subsidiary Lender designated by Borrower Agent and reasonably acceptable to Agent shall become an additional party hereto as a New Foreign Subsidiary Lender concurrently with the effectiveness of the proposed Foreign Subsidiary Incremental Facility or increase in the aggregate principal amount of the Foreign Subsidiary Revolver Commitments, as applicable, upon its execution of a joinder agreement in form and substance reasonably satisfactory to Agent. Subject to the foregoing, the Foreign Subsidiary Incremental Facility or increase of Foreign Subsidiary Revolver Commitments requested by Borrower Agent shall be effective as of the date proposed by Borrower Agent and agreed to by Agent and shall be in the principal amount equal to (i) the principal amount which Foreign Subsidiary Lenders are willing to assume as the new Foreign Subsidiary Incremental Facility and/or increases to the principal amount of their Foreign Subsidiary Revolver Commitment, as applicable, plus (ii) the principal amount offered by New Foreign Subsidiary Lenders. To the extent that adjustments to the aggregate Foreign Subsidiary Revolver Commitments result in loss or expenses to any Foreign Subsidiary Lender as a result of the prepayment of any LIBOR Loan on a date other than the scheduled last day of the applicable Interest Period, the Borrowers shall be responsible for such loss or expense pursuant to Section 3.8. Each of the parties hereto hereby agrees that, upon the effectiveness of the Foreign Subsidiary Incremental Facility, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence of the Foreign Subsidiary Incremental Facility and the Foreign Subsidiary Revolving Loans evidenced thereby, and Agent and the Borrowers may, without the consent of the other Lenders, effect such amendments to this Agreement and the other Credit Documents, and enter into any new Credit Documents, in each case as may be necessary or appropriate, in the reasonable opinion of Agent and Borrower Agent, to effect the provisions of this Section 2.1.6 (including (A) any amendments to Section 5.5), but which reflect the junior payment priority of the Foreign Subsidiary Incremental Facility with respect to the proceeds of the Collateral to the extent the Foreign Subsidiary Incremental Facility is not secured by Liens on the Collateral that rank pari passu with the Liens securing the Obligations of the Secured Parties (other than the Foreign Subsidiary Lenders in their capacities as such), (B) any amendments to this Agreement to reflect the ability for the Foreign Subsidiary Incremental Facility to be advanced and repaid in a currency other than Dollars, and (C) entering into any additional Collateral Documents with respect to the Foreign Subsidiary Incremental Facility and any guarantees provided by the Borrower and its Subsidiaries with respect thereto). For the avoidance of doubt, this Section 2.1.6 shall supersede any provisions in Section 13.1.1. From and after the effective date of the Foreign Subsidiary Incremental Facility and/or Foreign Subsidiary Revolver Commitment increase, the Foreign Subsidiary Revolver Loans and Foreign Subsidiary Revolver Commitments established pursuant to this Section 2.1.6 shall constitute THIRD AMENDED AND RESTATED CREDIT AGREEMENT – Page 62 Foreign Subsidiary Revolver Loans and Foreign Subsidiary Revolver Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Credit Documents. Following the effective date of the Foreign Subsidiary Incremental Facility and/or increase to the Foreign Subsidiary Revolver Commitments, Agent shall deliver to Borrower Agent a schedule to the Agreement reflecting the Foreign Subsidiary Incremental Facility and/or increases to the aggregate Foreign Subsidiary Revolver Commitments.
Appears in 1 contract
Samples: Credit Agreement (Calumet Specialty Products Partners, L.P.)
Foreign Subsidiary Incremental Facilities. The Borrowers may at any time or from time to time after the Closing Date, by notice from the Parent to the Agent (whereupon the Agent shall promptly deliver a copy to each of the Lenders), request one or more additional asset-based revolving loan facilities be established hereunder (each a “Foreign Subsidiary Incremental Facility”, the commitments of the lenders thereunder, the “Foreign Subsidiary Incremental Commitment” any such loans thereunder, the “Foreign Subsidiary Incremental Loans”) and/or that any then-existing Foreign Subsidiary Incremental Commitments be increased, in each case, denominated in Dollars or another currency agreed to by the Agent and the Foreign Subsidiary Lenders providing such Foreign Subsidiary Incremental Facility and in a minimum amount of $25,000,000, or in increments of $10,000,000 in excess thereof; provided that, in each case, (i) the aggregate principal amount of Foreign Subsidiary Incremental Commitments established pursuant to this clause (c) shall not exceed $250,000,000; (ii) the borrowers of such Foreign Subsidiary Incremental Facilities (the “Foreign Subsidiary Borrowers”) shall be wholly-owned Subsidiaries of Parent that are organized under the laws of Canada, England & Wales, the Netherlands, Germany or such other jurisdiction as agreed to by the Agent and the Lenders providing such Foreign Subsidiary Incremental Loans (or, in each case, any state, province or territory thereof, as applicable) (provided that for the avoidance of doubt, such Foreign Subsidiary Borrower shall not be required to become a Guarantor with respect to any Loan); (iii) the borrowing base established for any such Foreign Subsidiary Incremental Facility (including the definitions and components thereof) will be reasonably acceptable to the Agent; (iv) the Agent and Foreign Subsidiary Lenders providing such Foreign Subsidiary Incremental Facility will have received on or prior to the effectiveness of such Foreign Subsidiary Incremental Facility customary field examinations and appraisals, in form and substance reasonably satisfactory to the Agent and such Foreign Subsidiary Lenders, of the Foreign Subsidiary Borrowers’ assets that will be included in the borrowing base for such Foreign Subsidiary Incremental Facility; (v) the advance rates with respect to the collateral of the Foreign Subsidiary Borrowers (the “Foreign Subsidiary Collateral”) under any such Foreign Subsidiary Incremental Facility shall be no higher than the advance rates applicable to the Tranche A U.S. Revolving Loans; (vi) the Foreign Subsidiary Lenders that provide such Foreign Subsidiary Incremental Facility shall benefit from a first-priority perfected security interest in the Foreign Subsidiary Collateral for such Foreign Subsidiary Incremental Facility pursuant to documentation reasonably satisfactory to the Agent; it being agreed that no Lender (other than a Foreign Subsidiary Lender in its capacity as such) will benefit from any security interest in the Foreign Subsidiary Collateral; (vii) any such Foreign Subsidiary Incremental Facility (x) may benefit from a guaranty from the Borrowers and the Guarantors which guaranty may be secured by the Collateral on a junior basis to the Liens securing the Obligations of the Lender Group (other than any Foreign Subsidiary Lender) or (y) to the extent requested by the Borrowers or the Agent, such Foreign Subsidiary Incremental Facility may benefit from a guaranty from the Borrower and the Guarantors which guaranty may be secured by the Collateral on a pari passu basis with the Liens securing the Obligations of the Lender Group and, in the event such Foreign Subsidiary Incremental Facility is secured on a pari passu basis with the Liens securing the Obligations of the Lender Group, (A) each Lender (including each Foreign Subsidiary Lender) shall enter into a customary loss sharing agreement in form and substance reasonably acceptable to the Agent and the Supermajority Lenders or (B) the post-enforcement “waterfall” under Section 2.4(b)(iv) and Section 2.4(b)(v) shall be amended such that the proceeds of the Collateral of the Loan Parties organized in the United States (or any state or territory thereof) are applied to the Foreign Subsidiary Borrower’s Obligations only after the other Obligations have been paid in full; (viii) the maturity date of any such Foreign Subsidiary Incremental Facility will be the Maturity Date; (ix) each Foreign Subsidiary Borrower shall have appointed a process agent that is a Person incorporated or organized under the laws of the United States of America, any state thereof or in the District of Columbia; (x) no Default or Event of Default shall have occurred and be continuing or shall occur as a result of such establishment or increase in Foreign Subsidiary Incremental Facilities, as applicable; (xi) the representations and warranties contained in the Loan Documents shall be accurate in all material respects (or in all respects with respect to any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language) before and after such establishment or increase in Foreign Subsidiary Incremental Facilities, as applicable; (xii) prior to the date of such establishment or increase, each Lender shall have received written notice from Agent of the aggregate principal amount of such requested Foreign Subsidiary Incremental Facility or increase thereto, as applicable; (xiii) notwithstanding anything to the contrary in this Agreement or any of the other Loan Documents, (a) the Obligations of the Foreign Subsidiary Borrowers under this Agreement or any of the other Loan Documents shall be separate and distinct from the Obligations of any Loan Party organized in the United States including, without limitation, the Parent, and shall be expressly limited to the Obligations of each applicable Foreign Subsidiary Borrower, (b) the liability of any Foreign Subsidiary Borrower for the payment and performance of its covenants, representations and warranties or obligations (payment or otherwise) set forth in this Agreement and the other Loan Documents shall be several from but not joint with the Obligations of the Parent and any other Loan Party organized in the United States, and (c) the Foreign Subsidiary Collateral, or any other credit support provided by the Foreign Subsidiary Borrowers, shall not secure or be applied in satisfaction, by way of payment, prepayment, or otherwise, of all or any portion of the Obligations of the Parent and any other Loan Party organized in the United States; and (xiv) the Borrowers shall, and shall cause their applicable Subsidiaries (including any applicable Foreign Subsidiary Borrowers) to, execute and deliver such documents, opinions, certificates, instruments or information (including any “know your customer” information and any Beneficial Ownership Regulation information reasonably requested by the Agent or any Lender (through the Agent)) and take such other actions as may be reasonably requested by Agent in connection with such establishment or increase, as applicable. Any request under this Section 2.16(c) shall be submitted by the Borrowers to Agent (and Agent shall forward copies to the Lenders), specify the proposed effective date and the amount of each such requested Foreign Subsidiary Incremental Facility or increase thereto, as applicable, and be accompanied by an officer’s certificate of the Borrowers stating that (x) no Default or Event of Default exists or will occur as a result of such establishment or increase(s), as applicable and (y) the representations and warranties contained in the Loan Documents are accurate in all material respects (or in all respects with respect to any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language) before and after the such establishment or increase(s), as applicable. The Borrowers may also specify any fees offered to those Lenders and/or Additional Lenders (the “Foreign Subsidiary Lenders”) that agree to provide such Foreign Subsidiary Incremental Facilities or increases thereto, as applicable, which fees may be variable based upon the amount by which any such Foreign Subsidiary Lender is willing to increase the principal amount of its Foreign Subsidiary Incremental Commitments and/or provide a new Foreign Subsidiary Incremental Facility, as applicable. No Lender shall have any obligation, express or implied, to offer to provide any Foreign Subsidiary Incremental Facility or to increase its existing Foreign Subsidiary Incremental Commitments.
Appears in 1 contract
Samples: Asset Based Revolving Credit Agreement (Cleveland-Cliffs Inc.)
Foreign Subsidiary Incremental Facilities. The Borrowers Borrower Agent may request in writing at any time or from time to time after the Closing Date, by notice from the Parent to the Agent (whereupon the Agent shall promptly deliver a copy to each establishment of the Lenders), request one or more an additional asset-based revolving loan facilities be established facility hereunder (each a “Foreign Subsidiary Incremental Facility”, the commitments of the lenders Lenders thereunder, the “Foreign Subsidiary Incremental CommitmentRevolver Commitments” any such and the loans thereunder, the “Foreign Subsidiary Incremental Revolver Loans”) and/or that any then-or the increase of a then existing Foreign Subsidiary Incremental Commitments be increasedFacility, in each case, denominated in Dollars or another currency agreed to by the Agent and the Foreign Subsidiary Lenders providing such Foreign Subsidiary Incremental Facility and case in a minimum amount of $25,000,00010,000,000, or in increments an increment of $10,000,000 in excess thereof; provided that, in each case, (i) the aggregate principal amount of Foreign Subsidiary Incremental Commitments Facility established pursuant to this clause (c) Section 2.1.6 shall not exceed the lesser of (x) $250,000,00050,000,000 and (y) an amount equal to $500,000,000 minus the aggregate principal amount of increases in Revolver Commitments made pursuant to Section 2.2.1; (ii) the borrowers of under such Foreign Subsidiary Incremental Facilities Facility (the “Foreign Subsidiary Borrowers”) shall be whollyWholly-owned Owned Subsidiaries of Parent the Borrower that are organized under the laws of Canada, England & Wales, the Netherlands, Germany or such other jurisdiction as agreed to by the Agent and the Lenders providing such Foreign Subsidiary Incremental Loans Canada (or, in each case, any state, province or territory thereof, as applicable) (provided that for the avoidance of doubt, such Foreign Subsidiary Borrower shall not be required to become a Guarantor with respect to any Loan); (iii) the borrowing base established for any such Foreign Subsidiary Incremental Facility (including the definitions and components thereof) will be reasonably acceptable to the Agent; (iv) the Agent and Foreign Subsidiary Lenders providing such the Foreign Subsidiary Incremental Facility will have received on or prior to the effectiveness of such the Foreign Subsidiary Incremental Facility customary field examinations and appraisals, in form and substance reasonably satisfactory to the Agent and such Foreign Subsidiary Lenders, of the Foreign Subsidiary Borrowers’ assets that will be included in the borrowing base for such the Foreign Subsidiary Incremental Facility; (v) the advance rates with respect to the collateral of the Foreign Subsidiary Borrowers (the “Foreign Subsidiary Collateral”) under any such the Foreign Subsidiary Incremental Facility shall be no higher than the advance rates applicable to the Tranche A Revolving Revolver Loans; (vi) the Foreign Subsidiary Lenders that provide such the Foreign Subsidiary Incremental Facility shall benefit from a first-priority perfected security interest in the Foreign Subsidiary Collateral for such the Foreign Subsidiary Incremental Facility pursuant to documentation reasonably satisfactory to the AgentFacility; it being agreed that no Lender (other than a Foreign Subsidiary Lender in its capacity as such) will benefit from any security interest in the Foreign Subsidiary Collateral); (vii) any such Foreign Subsidiary Incremental Facility (x) may benefit from a guaranty from the Borrowers and the Guarantors which guaranty may be secured by the Collateral on a junior basis to the Liens securing the Obligations of the Lender Group (other than any Foreign Subsidiary Lender) or (y) to the extent requested by the Borrowers or the Agent, such Foreign Subsidiary Incremental Facility may benefit from a guaranty from the Borrower and the Guarantors which guaranty may be secured by the Collateral on a pari passu basis with the Liens securing the Obligations of the Secured Parties (other than any Foreign Subsidiary Lender Group andor New Foreign Subsidiary Lender), in and the event provisions of Section 5.5.2 shall be deemed modified to provide that payments on any such guaranty or with the proceeds of such Collateral shall be applied to repay the Foreign Subsidiary Revolver Loans under such Foreign Subsidiary Incremental Facility is secured directly after the application thereof to repayment of principal and interest on a pari passu basis with the Liens securing the Obligations of the Lender Groupall Revolver Loans and FILO Loans, (A) and each Lender (including each Foreign Subsidiary Lender) shall enter into a customary loss sharing agreement in form and substance reasonably acceptable to the Agent and the Supermajority Lenders or (B) the post-enforcement “waterfall” under Section 2.4(b)(iv) shall be amended such that the proceeds of the Collateral of the Loan Parties organized in the United States (or any state or territory thereof) are applied to the Foreign Subsidiary Borrower’s Obligations only after the other Obligations have been paid in fullRequired Lenders; (viii) the maturity date of any such the Foreign Subsidiary Incremental Facility will be the Maturity Revolver Termination Date; (ix) each Foreign Subsidiary Borrower shall have appointed a process agent that is a Person incorporated or organized under the laws of the United States of America, any state thereof or in the District of Columbia; (x) no Default or Event of Default shall have occurred and be continuing or shall occur as a result of such establishment or increase in the Foreign Subsidiary Incremental FacilitiesFacility, as applicable; (xi) the representations and warranties contained in the Loan Documents shall be accurate in all material respects (or in all respects with respect to any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language) before and after such establishment or increase in Foreign Subsidiary Incremental Facilities, as applicable; (xii) prior to the date of such establishment or increase, each Lender shall have received written notice from Agent of the aggregate principal amount of such the requested Foreign Subsidiary Incremental Facility or increase thereto, as applicable; (xiiixii) notwithstanding anything to the contrary in this Agreement or any of the other Loan Documents, (a) the Obligations of the Foreign Subsidiary Borrowers under this Agreement or any of the other Loan Documents shall be separate and distinct from the Obligations of any Loan Party organized in the United States including, without limitation, the Parent, and shall be expressly limited to the Obligations of each applicable Foreign Subsidiary Borrower, (b) the liability of any Foreign Subsidiary Borrower for the payment and performance of its covenants, representations and warranties or obligations (payment or otherwise) set forth in this Agreement and the other Loan Documents shall be several from but not joint with the Obligations of the Parent and any other Loan Party organized in the United States, and (c) the Foreign Subsidiary Collateral, or any other credit support provided by the Foreign Subsidiary Borrowers, shall not secure or be applied in satisfaction, by way of payment, prepayment, or otherwise, of all or any portion of the Obligations of the Parent and any other Loan Party organized in the United States; and (xiv) the Borrowers Agent shall, and shall cause their its applicable Subsidiaries (including any applicable Foreign Subsidiary Borrowers) to, execute and deliver such documents, opinions, certificates, documents and instruments or information (including any “know your customer” information and any Beneficial Ownership Regulation information reasonably requested by the Agent or any Lender (through the Agent)) and take such other actions as may be reasonably requested by Agent in connection with such establishment or increase, as applicable, and (xiii) such establishment or increase, as applicable, of the Foreign Subsidiary Incremental Facility shall be subject to successful syndication thereof. Any request under this Section 2.16(c) 2.1.6 shall be submitted by the Borrowers Borrower Agent to Agent (and Agent shall forward copies to the Lenders), specify the proposed effective date and the amount of each such the requested Foreign Subsidiary Incremental Facility or increase thereto, as applicable, and be accompanied by an officer’s certificate of the Borrowers Borrower Agent stating that (x) no Default or Event of Default exists or will occur as a result of such establishment or increase(s), as applicable and (y) the representations and warranties contained in the Loan Documents are accurate in all material respects (or in all respects with respect to any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language) before and after the such establishment or increase(s), as applicable. The Borrowers Borrower Agent may also specify any fees offered to those Lenders and/or Additional Lenders (the “Foreign Subsidiary Lenders”) that agree to provide such the Foreign Subsidiary Incremental Facilities Facility or increases thereto, as applicable, which fees may be variable based upon the amount by which any such Foreign Subsidiary Lender is willing to increase the principal amount of its Foreign Subsidiary Incremental Revolver Commitments and/or provide a new Foreign Subsidiary Incremental Facility, as applicable. No Lender shall have any obligation, express or implied, to offer to provide any Foreign Subsidiary Incremental Facility or to increase its existing Foreign Subsidiary Revolver Commitments. Only the consent of each Foreign Subsidiary Lender and Agent shall be required for the establishment of a Foreign Subsidiary Incremental Facility and/or increase in the aggregate principal amount of the Foreign Subsidiary Revolver Commitments pursuant to this Section 2.1.6. No Lender that elects not to increase the principal amount of its Foreign Subsidiary Revolver Commitment may be replaced in respect of its existing Foreign Subsidiary Revolver Commitment as a result thereof without such Lender’s consent. Each Foreign Subsidiary Lender that desires to participate in the Foreign Subsidiary Incremental Facility and/or increase its Foreign Subsidiary Revolver Commitment (each a “Foreign Subsidiary Responding Lender”), shall as soon as practicable specify the amount of each such proposed Foreign Subsidiary Revolver Commitment or increase thereto, as applicable, which it is willing to assume. If the total amount that Foreign Subsidiary Responding Lenders are willing to provide and/or increase, as applicable, their Foreign Subsidiary Revolver Commitments exceeds the amount of the requested Foreign Subsidiary Incremental Facility or increase of Foreign Subsidiary Revolver Commitments, as applicable, Borrower Agent shall determine the final allocation thereof; provided that, the amount of or increase in any Foreign Subsidiary Lender’s Foreign Subsidiary Revolver Commitment shall not exceed the amount of such Foreign Subsidiary Revolver Commitment or increase thereto proposed by such Foreign Subsidiary Lender. If the total amount that the Foreign Subsidiary Responding Lenders are willing to provide and/or increase their Foreign Subsidiary Revolver Commitments, as applicable, is less than the amount of the proposed Foreign Subsidiary Incremental Facility or increase of the Foreign Subsidiary Revolver Commitments, as applicable, in either case Borrower may designate new lenders who qualify as Eligible Assignees and who are reasonably acceptable to Agent as additional Foreign Subsidiary Lenders, as applicable, hereunder in accordance with this Section 2.1.6 (each such new lender being a “New Foreign Subsidiary Lender”), which New Foreign Subsidiary Lender may assume all or a portion of the requested Foreign Subsidiary Incremental Facility or increase in the aggregate principal amount of the Foreign Subsidiary Revolver Commitments, as applicable. Each New Foreign Subsidiary Lender designated by Borrower Agent and reasonably acceptable to Agent shall become an additional party hereto as a New Foreign Subsidiary Lender concurrently with the effectiveness of the proposed Foreign Subsidiary Incremental Facility or increase in the aggregate principal amount of the Foreign Subsidiary Revolver Commitments, as applicable, upon its execution of a joinder agreement in form and substance reasonably satisfactory to Agent. Subject to the foregoing, the Foreign Subsidiary Incremental Facility or increase of Foreign Subsidiary Revolver Commitments requested by Borrower Agent shall be effective as of the date proposed by Borrower Agent and agreed to by Agent and shall be in the principal amount equal to (i) the principal amount which Foreign Subsidiary Lenders are willing to assume as the new Foreign Subsidiary Incremental Facility and/or increases to the principal amount of their Foreign Subsidiary Revolver Commitment, as applicable, plus (ii) the principal amount offered by New Foreign Subsidiary Lenders. To the extent that adjustments to the aggregate Foreign Subsidiary Revolver Commitments result in loss or expenses to any Foreign Subsidiary Lender as a result of the prepayment of any LIBOR Loan on a date other than the scheduled last day of the applicable Interest Period, the Borrowers shall be responsible for such loss or expense pursuant to Section 3.8. Each of the parties hereto hereby agrees that, upon the effectiveness of the Foreign Subsidiary Incremental Facility, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence of the Foreign Subsidiary Incremental Facility and the Foreign Subsidiary Revolving Loans evidenced thereby, and Agent and the Borrowers may, without the consent of the other Lenders, effect such amendments to this Agreement and the other Credit Documents, and enter into any new Credit Documents, in each case as may be necessary or appropriate, in the reasonable opinion of Agent and Borrower Agent, to effect the provisions of this Section 2.1.6 (including (A) any amendments to Section 5.5), but which reflect the junior payment priority of the Foreign Subsidiary Incremental Facility with respect to the proceeds of the Collateral to the extent the Foreign Subsidiary Incremental Facility is not secured by Liens on the Collateral that rank pari passu with the Liens securing the Obligations of the Secured Parties (other than the Foreign Subsidiary Lenders in their capacities as such), (B) any amendments to this Agreement to reflect the ability for the Foreign Subsidiary Incremental Facility to be advanced and repaid in a currency other than Dollars, and (C) entering into any additional Collateral Documents with respect to the Foreign Subsidiary Incremental Facility and any guarantees provided by the Borrower and its Subsidiaries with respect thereto). For the avoidance of doubt, this Section 2.1.6 shall supersede any provisions in Section 13.1.1. From and after the effective date of the Foreign Subsidiary Incremental Facility and/or Foreign Subsidiary Revolver Commitment increase, the Foreign Subsidiary Revolver Loans and Foreign Subsidiary Revolver Commitments established pursuant to this Section 2.1.6 shall constitute Foreign Subsidiary Revolver Loans and Foreign Subsidiary Revolver Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Credit Documents. Following the effective date of the Foreign Subsidiary Incremental Facility and/or increase to the Foreign Subsidiary Revolver Commitments, Agent shall deliver to Borrower Agent a schedule to the Agreement reflecting the Foreign Subsidiary Incremental Facility and/or increases to the aggregate Foreign Subsidiary Revolver Commitments.
Appears in 1 contract
Samples: Credit Agreement (Calumet Specialty Products Partners, L.P.)
Foreign Subsidiary Incremental Facilities. The Borrowers may at any time or from time to time after the Closing Date, by notice from the Parent to the Agent (whereupon the Agent shall promptly deliver a copy to each of the Lenders), request one or more additional asset-based revolving loan facilities be established hereunder (each a “Foreign Subsidiary Incremental Facility”, the commitments of the lenders thereunder, the “Foreign Subsidiary Incremental Commitment” any such loans thereunder, the “Foreign Subsidiary Incremental Loans”) and/or that any then-existing Foreign Subsidiary Incremental Commitments be increased, in each case, denominated in Dollars or another currency agreed to by the Agent and the Foreign Subsidiary Lenders providing such Foreign Subsidiary Incremental Facility and in a minimum amount of $25,000,000, or in increments of $10,000,000 in excess thereof; provided that, in each case, (i) the aggregate principal amount of Foreign Subsidiary Incremental Commitments established pursuant to this clause (c) shall not exceed $250,000,000100,000,000 less, to the extent in excess of $400,000,000, the aggregate principal amount of Upsize Incremental Commitments made pursuant to Section 2.16(a) greater than $400,000,000250,000,000; (ii) the borrowers of such Foreign Subsidiary Incremental Facilities (the “Foreign Subsidiary Borrowers”) shall be wholly-owned Subsidiaries of Parent that are organized under the laws of Canada, England & Wales, the Netherlands, Germany or such other jurisdiction as agreed to by the Agent and the Lenders providing such Foreign Subsidiary Incremental Loans (or, in each case, any state, province or territory thereof, as applicable) (provided that for the avoidance of doubt, such Foreign Subsidiary Borrower shall not be required to become a Guarantor with respect to any Loan); (iii) the borrowing base established for any such Foreign Subsidiary Incremental Facility (including the definitions and components thereof) will be reasonably acceptable to the Agent; (iv) the Agent and Foreign Subsidiary Lenders providing such Foreign Subsidiary Incremental Facility will have received on or prior to the effectiveness of such Foreign Subsidiary Incremental Facility customary field examinations and appraisals, in form and substance reasonably satisfactory to the Agent and such Foreign Subsidiary Lenders, of the Foreign Subsidiary Borrowers’ assets that will be included in the borrowing base for such Foreign Subsidiary Incremental Facility; (v) the advance rates with respect to the collateral of the Foreign Subsidiary Borrowers (the “Foreign Subsidiary Collateral”) under any such Foreign Subsidiary Incremental Facility shall be no higher than the advance rates applicable to the Tranche A Revolving Loans; (vi) the Foreign Subsidiary Lenders that provide such Foreign Subsidiary Incremental Facility shall benefit from a first-priority perfected security interest in the Foreign Subsidiary Collateral for such Foreign Subsidiary Incremental Facility pursuant to documentation reasonably satisfactory to the Agent; it being agreed that no Lender (other than a Foreign Subsidiary Lender in its capacity as such) will benefit from any security interest in the Foreign Subsidiary Collateral; (vii) any such Foreign Subsidiary Incremental Facility (x) may benefit from a guaranty from the Borrowers and the Guarantors which guaranty may be secured by the Collateral on a junior basis to the Liens securing the Obligations of the Lender Group (other than any Foreign Subsidiary Lender) or (y) to the extent requested by the Borrowers or the Agent, such Foreign Subsidiary Incremental Facility may benefit from a guaranty from the Borrower and the Guarantors which guaranty may be secured by the Collateral on a pari passu basis with the Liens securing the Obligations of the Lender Group and, in the event such Foreign Subsidiary Incremental Facility is secured on a pari passu basis with the Liens securing the Obligations of the Lender Group, (A) each Lender (including each Foreign Subsidiary Lender) shall enter into a customary loss sharing agreement in form and substance reasonably acceptable to the Agent and the Supermajority Lenders or (B) the post-enforcement “waterfall” under Section 2.4(b)(iv) shall be amended such that the proceeds of the Collateral of the Loan Parties organized in the United States (or any state or territory thereof) are applied to the Foreign Subsidiary Borrower’s Obligations only after the other Obligations have been paid in full; (viii) the maturity date of any such Foreign Subsidiary Incremental Facility will be the Maturity Date; (ix) each Foreign Subsidiary Borrower shall have appointed a process agent that is a Person incorporated or organized under the laws of the United States of America, any state thereof or in the District of Columbia; (x) no Default or Event of Default shall have occurred and be continuing or shall occur as a result of such establishment or increase in Foreign Subsidiary Incremental Facilities, as applicable; (xi) the representations and warranties contained in the Loan Documents shall be accurate in all material respects (or in all respects with respect to any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language) before and after such establishment or increase in Foreign Subsidiary Incremental Facilities, as applicable; (xii) prior to the date of such establishment or increase, each Lender shall have received written notice from Agent of the aggregate principal amount of such requested Foreign Subsidiary Incremental Facility or increase thereto, as applicable; (xiii) notwithstanding anything to the contrary in this Agreement or any of the other Loan Documents, (a) the Obligations of the Foreign Subsidiary Borrowers under this Agreement or any of the other Loan Documents shall be separate and distinct from the Obligations of any Loan Party organized in the United States including, without limitation, the Parent, and shall be expressly limited to the Obligations of each applicable Foreign Subsidiary Borrower, (b) the liability of any Foreign Subsidiary Borrower for the payment and performance of its covenants, representations and warranties or obligations (payment or otherwise) set forth in this Agreement and the other Loan Documents shall be several from but not joint with the Obligations of the Parent and any other Loan Party organized in the United States, and (c) the Foreign Subsidiary Collateral, or any other credit support provided by the Foreign Subsidiary Borrowers, shall not secure or be applied in satisfaction, by way of payment, prepayment, or otherwise, of all or any portion of the Obligations of the Parent and any other Loan Party organized in the United States; and (xiv) the Borrowers shall, and shall cause their applicable Subsidiaries (including any applicable Foreign Subsidiary Borrowers) to, execute and deliver such documents, opinions, certificates, instruments or information (including any “know your customer” information and any Beneficial Ownership Regulation information reasonably requested by the Agent or any Lender (through the Agent)) and take such other actions as may be reasonably requested by Agent in connection with such establishment or increase, as applicable. Any request under this Section 2.16(c) shall be submitted by the Borrowers to Agent (and Agent shall forward copies to the Lenders), specify the proposed effective date and the amount of each such requested Foreign Subsidiary Incremental Facility or increase thereto, as applicable, and be accompanied by an officer’s certificate of the Borrowers stating that (x) no Default or Event of Default exists or will occur as a result of such establishment or increase(s), as applicable and (y) the representations and warranties contained in the Loan Documents are accurate in all material respects (or in all respects with respect to any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language) before and after the such establishment or increase(s), as applicable. The Borrowers may also specify any fees offered to those Lenders and/or Additional Lenders (the “Foreign Subsidiary Lenders”) that agree to provide such Foreign Subsidiary Incremental Facilities or increases thereto, as applicable, which fees may be variable based upon the amount by which any such Foreign Subsidiary Lender is willing to increase the principal amount of its Foreign Subsidiary Incremental Commitments and/or provide a new Foreign Subsidiary Incremental Facility, as applicable. No Lender shall have any obligation, express or implied, to offer to provide any Foreign Subsidiary Incremental Facility or to increase its existing Foreign Subsidiary Incremental Commitments.
Appears in 1 contract
Samples: Asset Based Revolving Credit Agreement (Cleveland-Cliffs Inc.)
