Incremental Equivalent Debt. The Borrower may, upon notice to the Administrative Agent, at any time or from time to time after the Closing Date, issue, incur or otherwise obtain Indebtedness of the Borrower (and any Permitted Refinancing thereof) in respect of one or more series of senior or subordinated notes or loans (which may be unsecured or secured on a junior lien basis or, in the case of notes only, a pari passu basis with the Obligations under Term Loans and Revolving Credit Loans required to be secured on a first lien basis), in each case issued in a public offering, Rule 144A or other private placement or bridge in lieu of the foregoing, or senior or subordinated mezzanine Indebtedness (which may be in the form of loans or notes and limited to being unsecured or secured solely on a junior lien basis), in each case, that are issued or made in lieu of Incremental Revolving Credit Commitments and/or Incremental Term Commitments (the “Incremental Equivalent Debt”); provided that (i) (A) after giving Pro Forma Effect to both (x) the issuance or incurrence of such Incremental Equivalent Debt (assuming a borrowing of the maximum credit thereunder) and (y) any Specified Transactions consummated in connection therewith, (1) if such Incremental Equivalent Debt ranks pari passu in right of security with the Obligations under Term Loans and Revolving Credit Loans that are secured on a first lien basis, the Consolidated First Lien Net Leverage Ratio does not exceed 5.002.50:1.00, (2) if such Incremental Equivalent Debt ranks junior in right of security with the Obligations under the Term Loans and Revolving Credit Loans that are secured on a first lien basis, the Secured Net Leverage Ratio does not exceed 6.254.20: 1.00 and (3) if such Incremental Equivalent Debt is unsecured, the Total Net Leverage Ratio does not exceed 6.254.20: 1.00 or (B) together with such Incremental Equivalent Debt, the aggregate principal amount of Incremental Equivalent Debt incurred or issued under this clause (B) and Incremental Term Loans made and Incremental Revolving Credit Commitments established under Section 2.14(d)(iii)(B) (plus the Second Lien Incremental Usage Amount) does not exceed $85,000,000 (provided, that such amount shall not be reduced by the Term B-2 Loans, Additional Commitments (as defined in Amendment No. 1) or the 2016 Second Lien Incremental Term Loan (as defined in Amendment No.1)), following the Amendment No. 3 Effective Date, $42,600,000 plus the principal amount of any voluntary prepayments of Term Loans made after the Amendment No. 3 Effective Date (to the extent not made with the proceeds of Indebtedness (other than the incurrence of Revolving Credit Loans or extensions of credit under any other revolving credit or similar facility)) plus in the case of any Incremental Equivalent Debt incurred or established after the Amendment No. 3 Effective Date that effectively extends the Maturity Date or any other maturity date with respect to any Class of Loans or Commitments hereunder, an amount equal to the portion of the relevant Class of Loans or Commitments that will be replaced by such Incremental Commitments plus (iv)in the case of any Incremental Equivalent Debt incurred or established after the Amendment No. 3 Effective Date that effectively replaces any Revolving Credit Commitment terminated in accordance with Section 3.07, an amount equal to the relevant terminated Revolving Credit Commitment (and, for the avoidance of doubt, the amount under this clause (i) shall not be reduced by the increase in the Initial Revolving Credit Commitments occurring on the Amendment No. 3 Effective Date), (ii) such Incremental Equivalent Debt shall not be subject to any Guarantee by any Person other than a Loan Party, (iii) if such Incremental Equivalent Debt is secured, the obligations in respect thereof shall not be secured by any Lien on any asset of Holdings, the Borrower or any Restricted Subsidiary other than any asset constituting Collateral, (iv) no Default or Event of Default shall have occurred and be continuing or would exist immediately after giving effect to such incurrence, (v) if such Incremental Equivalent Debt is secured, the security agreements and other collateral documents relating to such Incremental Equivalent Debt shall be substantially similar to the Collateral Documents (with such differences as are reasonably satisfactory to the Administrative Agent), (vi) if such Incremental Equivalent Debt is (a) secured on a pari passu basis with the Obligations under Term Loans and Revolving Credit Loans that are secured on a first lien basis, then such Incremental Equivalent Debt shall be subject to a First Lien Intercreditor Agreement, (b) secured on a junior basis with the Obligations under Term Loans and Revolving Credit Loans that are secured on a first lien basis, then such Incremental Equivalent Debt shall be subject to the Second Lien Intercreditor Agreement or other lien subordination and intercreditor arrangement satisfactory to the Borrower and the Administrative Agent or (c) unsecured and subordinated to the Obligations, then such Incremental Equivalent Debt shall be subject to a Subordination Agreement (or, alternatively, terms in the definitive documentation for such Incremental Equivalent Debt substantially similar to those in such applicable agreement, as agreed by the Borrower and Administrative Agent), (vii) such Incremental Equivalent Debt shall have a final maturity date which is no earlier than the then Maturity Date and a Weighted Average Life to Maturity which is equal to or greater than the Weighted Average Life to Maturity of the Term B-3 Loans, (viii) such Incremental Equivalent Debt shall not be subject to any mandatory redemption or prepayment provisions or rights (except to the extent any such mandatory redemption or prepayment is required to be applied pro rata to the Term Loans required to be secured on a first lien basis and except with respect to customary “AHYDO catch-up payments”, offers to repurchase and prepayment events upon a change of control, asset sale or event of loss and a customary acceleration right after an event of default) and (ix) except as otherwise set forth in this clause (h), such Incremental Equivalent Debt shall have terms and conditions (other than with respect to pricing, fees, rate floors and optional prepayment or redemption terms) substantially similar to, or (taken as a whole) no more favorable (as reasonably determined by the Borrower) to the lenders or holders providing such Incremental Equivalent Debt, than those applicable to the Term B-3 Loans (except for covenants or other provisions (a) conformed (or added) in the Loan Documents, for the benefit of the Lenders holding Term B-3 Loans, pursuant to an amendment thereto subject solely to the reasonable satisfaction of the Administrative Agent or (b) applicable only to periods after the Latest Maturity Date at the time of the issuance or incurrence of such Incremental Equivalent Debt) or such terms and conditions shall be current market terms for such type of Incremental Equivalent Debt (as reasonably determined in good faith by the Borrower). It is understood that Incremental Equivalent Debt may be incurred under either clause (i)(A) or clause (i)(B) of the immediately preceding sentence as selected by the Borrower in its sole discretion, including by designating any portion of Incremental Equivalent Debt in excess of an amount permitted to be incurred under such clause (i)(A) at the time of such incurrence as incurred under such clause (i)(B).
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Incremental Equivalent Debt. (a) The Borrower maymay from time to time, upon written notice by the Borrower to the Administrative Agent, at any time specifying in reasonable detail the proposed terms thereof, issue or from time to time after the Closing Date, issue, incur or otherwise obtain Indebtedness of the Borrower (and any Permitted Refinancing thereof) in respect of one or more series of senior unsecured notes, senior secured pari passu or junior lien notes or subordinated notes or loans (which may be unsecured or secured on a junior lien basis or, in the case of notes only, a pari passu basis with the Obligations under Term Loans and Revolving Credit Loans required to be secured on a first lien basis)notes, in each case issued in a public offering, Rule 144A or other private placement or customary bridge facility in lieu respect of the foregoingforegoing (and any Registered Equivalent Notes issued in exchange therefor), junior lien or senior unsecured loans or subordinated junior lien secured or unsecured mezzanine Indebtedness (which may be in the form of loans or notes and limited to being unsecured or secured solely on a junior lien basis)that, in each case, if secured, will be secured by the Collateral on a pari passu or junior basis, as applicable, with the Obligations, that are issued or made in lieu of Incremental Revolving Credit Commitments and/or an Incremental Term Commitments Facility pursuant to an indenture, a note purchase agreement, loan or credit agreement or otherwise (the such Indebtedness, collectively, “Incremental Equivalent Debt”); provided that ) in a principal amount not to exceed the Incremental Amount at the time of incurrence.
(ib) (A) after giving Pro Forma Effect As a condition precedent to both (x) the issuance or incurrence of such Incremental Equivalent Debt (assuming a borrowing of the maximum credit thereunder) and (y) any Specified Transactions consummated in connection therewith, (1) if such Incremental Equivalent Debt ranks pari passu in right of security with the Obligations under Term Loans and Revolving Credit Loans that are secured on a first lien basis, the Consolidated First Lien Net Leverage Ratio does not exceed 5.002.50:1.00, (2) if such Incremental Equivalent Debt ranks junior in right of security with the Obligations under the Term Loans and Revolving Credit Loans that are secured on a first lien basis, the Secured Net Leverage Ratio does not exceed 6.254.20: 1.00 and (3) if such Incremental Equivalent Debt is unsecured, the Total Net Leverage Ratio does not exceed 6.254.20: 1.00 or (B) together with such Incremental Equivalent Debt, the aggregate principal amount of Incremental Equivalent Debt incurred or issued under this clause (B) and Incremental Term Loans made and Incremental Revolving Credit Commitments established under Section 2.14(d)(iii)(B) (plus the Second Lien Incremental Usage Amount) does not exceed $85,000,000 (provided, that such amount shall not be reduced by the Term B-2 Loans, Additional Commitments (as defined in Amendment No. 1) or the 2016 Second Lien Incremental Term Loan (as defined in Amendment No.1)), following the Amendment No. 3 Effective Date, $42,600,000 plus the principal amount of any voluntary prepayments of Term Loans made after the Amendment No. 3 Effective Date (to the extent not made with the proceeds of Indebtedness (other than the incurrence of Revolving Credit Loans or extensions of credit under any other revolving credit or similar facility)) plus in the case of any Incremental Equivalent Debt incurred or established after pursuant to this Section 2.17, (i) the Amendment No. 3 Effective Date that effectively extends the Maturity Date or any other maturity date with respect to any Class of Loans or Commitments hereunder, an amount equal Borrower shall deliver to the portion Administrative Agent a certificate of the relevant Class Borrower dated as of Loans the date of issuance or Commitments that will be replaced by such Incremental Commitments plus (iv)in incurrence of the case of any Incremental Equivalent Debt incurred or established after signed by a Responsible Officer of the Amendment No. 3 Effective Date Borrower certifying that effectively replaces any Revolving Credit Commitment terminated the conditions precedent set forth in accordance the following clauses (ii) through (viii) have been satisfied and, if applicable, that the Borrower is in Pro Forma Compliance with Section 3.07the Maximum Senior Secured Net Leverage Requirement, an amount equal to the relevant terminated Revolving Credit Commitment (andextent applicable, for and the avoidance of doubt, the amount under this clause (i) shall not be reduced by the increase financial covenant set forth in the Initial Revolving Credit Commitments occurring on the Amendment No. 3 Effective Date)Section 7.11, (ii) such Incremental Equivalent Debt shall not be borrowed by or subject to any Guarantee by any Person other than the Borrower and a Loan PartyGuarantor, respectively, (iii) if to the extent such Incremental Equivalent Debt is secured, the obligations in respect thereof shall not be secured by any Lien on any asset of Holdings, the Borrower or any Restricted Subsidiary other than any asset constituting Collateral, (ivx) no Default or Event of Default shall have occurred and be continuing or would exist immediately after giving effect to such incurrence, (v) if such Incremental Equivalent Debt is secured, the security agreements and other collateral documents relating to such Incremental Equivalent Debt shall be substantially similar to the same as the Collateral Documents (with such differences as are reasonably satisfactory to the Administrative Agent), (viy) if such Incremental Equivalent Debt is (a) shall be secured either on a pari passu an “equal and ratable” basis with the Obligations under Term Loans and Revolving Credit Loans that are secured other Facilities or on a first lien basis“junior” basis to the Liens that secure the Facilities, then in each case solely on all or some of the Collateral that secures the Facilities and (z) such Incremental Equivalent Debt shall be subject to (A) in the case of Incremental Equivalent Debt that will be secured by the Collateral on a First Lien pari passu basis with the Obligations, a Pari Passu Intercreditor Agreement or an Other Intercreditor Agreement and (B) in the case of Incremental Equivalent Debt that will be secured by the Collateral on a junior priority basis to the Obligations, an Other Intercreditor Agreement, (biv) secured on a junior basis with (A) the Obligations under Term Loans final maturity of any Incremental Equivalent Debt consisting of revolving credit commitments shall be no earlier than the Latest Revolving Termination Date in effect at the time of incurrence and Revolving Credit Loans that are secured on a first lien basis, then such (B) the final maturity of any other Incremental Equivalent Debt shall be subject to the Second Lien Intercreditor Agreement or other lien subordination and intercreditor arrangement satisfactory to the Borrower and the Administrative Agent or (c) unsecured and subordinated to the Obligations, then such Incremental Equivalent Debt shall be subject to a Subordination Agreement (or, alternatively, terms in the definitive documentation for such Incremental Equivalent Debt substantially similar to those in such applicable agreement, as agreed by the Borrower and Administrative Agent), (vii) such Incremental Equivalent Debt shall have a final maturity date which is no earlier than the then Latest Term Loan Maturity Date and a Weighted Average Life to Maturity which is equal to or greater than the Weighted Average Life to Maturity of the Term B-3 Loans, (viii) such Incremental Equivalent Debt shall not be subject to any mandatory redemption or prepayment provisions or rights (except to the extent any such mandatory redemption or prepayment is required to be applied pro rata to the Term Loans required to be secured on a first lien basis and except with respect to customary “AHYDO catch-up payments”, offers to repurchase and prepayment events upon a change of control, asset sale or event of loss and a customary acceleration right after an event of default) and (ix) except as otherwise set forth in this clause (h), such Incremental Equivalent Debt shall have terms and conditions (other than with respect to pricing, fees, rate floors and optional prepayment or redemption terms) substantially similar to, or (taken as a whole) no more favorable (as reasonably determined by the Borrower) to the lenders or holders providing such Incremental Equivalent Debt, than those applicable to the Term B-3 Loans (except for covenants or other provisions (a) conformed (or added) in the Loan Documents, for the benefit of the Lenders holding Term B-3 Loans, pursuant to an amendment thereto subject solely to the reasonable satisfaction of the Administrative Agent or (b) applicable only to periods after the Latest Maturity Date effect at the time of the incurrence, issuance or incurrence obtainment of such Incremental Equivalent DebtIndebtedness, (v) (A) the terms of such Indebtedness that constitutes notes do not provide for any mandatory prepayment, repurchase, redemption or such terms and conditions shall be current market terms for such type of Incremental Equivalent Debt (as reasonably determined sinking fund obligations prior to the Latest Term Loan Maturity Date in good faith by the Borrower). It is understood that Incremental Equivalent Debt may be incurred under either clause (i)(A) or clause (i)(B) of the immediately preceding sentence as selected by the Borrower in its sole discretion, including by designating any portion of Incremental Equivalent Debt in excess of an amount permitted to be incurred under such clause (i)(A) effect at the time of such incurrence as incurred under such clause (i)(B).the incurrence, issuance or obtainment of
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Sources: Credit Agreement (Visteon Corp)
Incremental Equivalent Debt. The In addition, the Borrower maymay utilize any portion of the Incremental Facility Increase Amount in effect at such time to issue or incur Indebtedness consisting of term loans (whether pari passu, upon notice subordinated in right of payment to the Administrative AgentObligations, at any time or from time to time after the Closing Date, issue, incur or otherwise obtain Indebtedness of the Borrower (and any Permitted Refinancing thereof) in respect of one or more series of senior or subordinated notes or loans (which may be unsecured or secured on a by Liens ranking junior lien basis oror subordinate to the Liens securing the Obligations) or notes (whether pari passu, subordinated in right of payment to the case of notes onlyObligations, a unsecured or secured by Liens ranking junior or subordinate to or pari passu basis with the Obligations under Term Loans and Revolving Credit Loans required to be secured on a first lien basis)Liens securing the Obligations) or any bridge facility, in each case in respect of the issuance of notes, issued in (A) a public offering, Rule 144A or and/or other private placement and/or (B) a bridge facility or bridge a syndicated loan financing or otherwise in lieu of the foregoing, or senior or subordinated mezzanine Indebtedness (which may be in the form of loans or notes and limited to being unsecured or secured solely on a junior lien basis), in each case, that are issued or made in lieu of Incremental Revolving Credit Commitments and/or an Incremental Term Commitments Facility (the “Incremental Equivalent Debt”); provided that (i) (A) after giving Pro Forma Effect to both (x) the issuance or incurrence of such Incremental Equivalent Debt (assuming a borrowing of the maximum credit thereunder) and (y) any Specified Transactions consummated in connection therewith, (1) if such Incremental Equivalent Debt ranks pari passu in right of security with the Obligations under Term Loans and Revolving Credit Loans that are secured on a first lien basis, the Consolidated First Lien Net Leverage Ratio does not exceed 5.002.50:1.00, (2) if such Incremental Equivalent Debt ranks junior in right of security with the Obligations under the Term Loans and Revolving Credit Loans that are secured on a first lien basis, the Secured Net Leverage Ratio does not exceed 6.254.20: 1.00 and (3) only if such Incremental Equivalent Debt is unsecuredin the form of term loans or notes that are pari passu with the Initial Term Loans in right of payment and with respect to security and, the Total Net Leverage Ratio does not exceed 6.254.20: 1.00 or (B) together with if such Incremental Equivalent DebtDebt were incurred as an Incremental Facility, would have triggered the MFN Adjustment, the aggregate principal amount of MFN Adjustment shall apply,
(ii) such Incremental Equivalent Debt incurred or issued under this clause (Bx) and to the extent such Incremental Equivalent Debt is pari passu to the Initial Term Loans made in right of payment and with respect to security, does not mature earlier than the Latest Maturity Date of the existing Term Loans, (y) to the extent such Incremental Revolving Credit Commitments established under Section 2.14(d)(iii)(B) Equivalent Debt is junior to the Initial Term Loans in right of payment or with respect to security (plus including by being unsecured), does not mature earlier than 91 days following the Second Lien Incremental Usage AmountLatest Maturity Date applicable to the Initial Term Loans, and (z) does not exceed $85,000,000 have a Weighted Average Life to Maturity shorter than the Weighted Average Life to Maturity applicable to the existing Term Loans (provided, provided that such amount the requirement of this subclause (ii) shall not be reduced by the Term B-2 Loans, Additional Commitments (as defined in Amendment No. 1) or the 2016 Second Lien Incremental Term Loan (as defined in Amendment No.1)), following the Amendment No. 3 Effective Date, $42,600,000 plus the principal amount of any voluntary prepayments of Term Loans made after the Amendment No. 3 Effective Date (apply to the extent not made with the proceeds of Indebtedness (other than the incurrence of Revolving Credit Loans or extensions of credit under any other revolving credit or similar facility)) plus in the case of any Incremental Equivalent Debt incurred or established after consisting of a customary bridge facility, so long as the Amendment No. 3 Effective Date that effectively extends the Maturity Date or any other maturity date with respect long-term indebtedness into which such customary bridge facility is to any Class of Loans or Commitments hereunder, an amount equal to the portion of the relevant Class of Loans or Commitments that will be replaced by such Incremental Commitments plus converted satisfies this subclause (iv)in the case of any Incremental Equivalent Debt incurred or established after the Amendment No. 3 Effective Date that effectively replaces any Revolving Credit Commitment terminated in accordance with Section 3.07, an amount equal to the relevant terminated Revolving Credit Commitment (and, for the avoidance of doubt, the amount under this clause (i) shall not be reduced by the increase in the Initial Revolving Credit Commitments occurring on the Amendment No. 3 Effective Dateii)), (iiiii) such Incremental Equivalent Debt shall not be subject to any Guarantee guaranteed by any Person other than that is not a Loan PartyCredit Party (unless such Person shall substantially concurrently become a Credit Party hereunder pursuant to Section 5.10), (iiiiv) if secured, such Incremental Equivalent Debt (x) is secured, the obligations in respect thereof shall not be secured by any Lien on any asset assets not securing the Loans (unless such assets shall substantially concurrently become a part of Holdings, the Borrower or any Restricted Subsidiary other than any asset constituting Collateral) and (y) is subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and the Borrower, (ivv) no Default or Event of Default shall have occurred and be continuing or would exist immediately after giving effect (provided that, solely with respect to such incurrenceany Incremental Equivalent Debt incurred in connection with a Limited Condition Transaction, (vx) if no Event of Default shall exist at the time of execution of the definitive documentation for such Limited Condition Transaction and (y) no Specified Event of Default shall exist at the time that such Incremental Equivalent Debt is securedeffective hereunder), (vi) any Incremental Equivalent Debt that is (x) pari passu with the Initial Term Loans in right of payment and with respect to security agreements may provide for the ability to participate (1) on a pro rata basis, less than pro rata basis or greater than pro rata basis in any voluntary prepayments and other collateral documents relating (2) on a pro rata basis or less than pro rata basis (or greater than pro rata basis with respect to such prepayments constituting permitted refinancings) in any mandatory prepayments, in each case, of the Term Loans and (y) junior to the Initial Term Loans in right of payment or with respect to security may provide for the ability to participate on a less than pro rata basis in any voluntary and/or mandatory prepayments of the Term Loans, but shall not be on a pro rata or greater than pro rata basis; provided that any unsecured Incremental Equivalent Debt shall be not share in any voluntary or mandatory prepayments of the Term Loans and (vii) the other terms and conditions (excluding pricing, interest rate margins, interest rate floors, discounts, fees, premiums, maturity and prepayment or redemption terms), if not substantially similar to consistent with the Collateral Documents (with such differences terms of the existing Term Loans, are as are otherwise reasonably satisfactory to the Administrative Agent), Agent (viit being understood that (A) if such Incremental Equivalent Debt is (a) secured on a pari passu basis terms not substantially consistent with the Obligations under existing Term Loans and Revolving Credit Loans that are secured on a first lien basis, then such Incremental Equivalent Debt shall be subject to a First Lien Intercreditor Agreement, (b) secured on a junior basis with the Obligations under Term Loans and Revolving Credit Loans that are secured on a first lien basis, then such Incremental Equivalent Debt shall be subject to the Second Lien Intercreditor Agreement or other lien subordination and intercreditor arrangement satisfactory to the Borrower and the Administrative Agent or (c) unsecured and subordinated to the Obligations, then such Incremental Equivalent Debt shall be subject to a Subordination Agreement (or, alternatively, terms in the definitive documentation for such Incremental Equivalent Debt substantially similar to those in such applicable agreement, as agreed by the Borrower and Administrative Agent), (vii) such Incremental Equivalent Debt shall have a final maturity date which is no earlier than the then Maturity Date and a Weighted Average Life to Maturity which is equal to or greater than the Weighted Average Life to Maturity of the Term B-3 Loans, (viii) such Incremental Equivalent Debt shall not be subject to any mandatory redemption or prepayment provisions or rights (except to the extent any such mandatory redemption or prepayment is required to be applied pro rata to the Term Loans required to be secured on a first lien basis and except with respect to customary “AHYDO catch-up payments”, offers to repurchase and prepayment events upon a change of control, asset sale or event of loss and a customary acceleration right after an event of default) and (ix) except as otherwise set forth in this clause (h), such Incremental Equivalent Debt shall have terms and conditions (other than with respect to pricing, fees, rate floors and optional prepayment or redemption terms) substantially similar to, or (taken as a whole) no more favorable (as reasonably determined by the Borrower) to the lenders or holders providing such Incremental Equivalent Debt, than those applicable to the Term B-3 Loans (except for covenants or other provisions (a) conformed (or added) in the Loan Documents, for the benefit of the Lenders holding Term B-3 Loans, pursuant to an amendment thereto subject solely to the reasonable satisfaction of the Administrative Agent or (b) applicable only to periods after the Latest Maturity Date at such time will be deemed to be satisfactory to the time of Administrative Agent, (B) terms contained in such Incremental Equivalent Debt that are, taken as a whole, more favorable to the issuance lenders or incurrence the agent of such Incremental Equivalent DebtDebt and are substantially concurrently conformed (or added) or such terms and conditions shall be current market terms to the Credit Documents for such type of Incremental Equivalent Debt (as reasonably determined in good faith by the Borrower). It is understood that Incremental Equivalent Debt may be incurred under either clause (i)(A) or clause (i)(B) benefit of the immediately preceding sentence lenders under the existing Term Loans or the Administrative Agent, as selected by the Borrower in its sole discretionapplicable, including by designating any portion of Incremental Equivalent Debt in excess of an amount permitted will be deemed to be incurred under such clause (i)(A) at satisfactory to the time of such incurrence as incurred under such clause (i)(B).Administrative Agent and
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Incremental Equivalent Debt. (a) The Borrower may, upon notice to the Administrative Agent, at or any time or Guarantor may from time to time after the Closing Date, issue, incur or otherwise obtain Indebtedness of the Borrower (and any Permitted Refinancing thereof) in respect of issue one or more series of senior secured, senior unsecured, senior subordinated or subordinated notes notes, loans or loans Extendable Bridge Loans/Interim Debt (which may be unsecured or notes, loans and/or Extendable Bridge Loans/Interim Debt, if secured on a junior lien basis or, in the case of notes only, a pari passu basis with the Obligations under Term Loans and Revolving Credit Loans required to be are secured on a first lien basis), in each case issued in a public offering, Rule 144A or other private placement or bridge in lieu of “equal and ratable” basis with the foregoing, or senior or subordinated mezzanine Indebtedness (which may be in Liens securing the form of loans or notes and limited to being unsecured Obligations or secured solely on a junior lien basis)“junior” basis with the Liens securing the Obligations) and guaranteed only by Loan Parties or entities who become Loan Parties (such notes, in each caseloans and/or Extendable Bridge Loans/Interim Debt, that are issued or made in lieu of Incremental Revolving Credit Commitments and/or Incremental Term Commitments (the collectively, “Incremental Equivalent Debt”) in an amount not to exceed the sum of (A) the Cash-Capped Incremental Facility, (B) the Ratio-Based Incremental Facility and (C) the Prepayment-Based Incremental Facility (in each case, at the time of issuance); provided that (i) (A) no Event of Default would exist after giving Pro Forma Effect to both any such request, subject to Section 1.02(i), and (ii) any such issuance of Incremental Equivalent Debt shall be in a minimum amount of the lesser of (x) the issuance $20,000,000 (or incurrence of such Incremental Equivalent Debt (assuming a borrowing of the maximum credit thereunderequivalent amount) and (y) the entire amount that may be requested under this Section 2.15; provided, further, that any Specified Transactions consummated in connection therewith, (1) if such New Loan Commitments established pursuant to Section 2.14 and Incremental Equivalent Debt ranks pari passu in right issued pursuant to this Section 2.15, (A) will count, first, to reduce the amount available under Prepayment-Based Incremental Facilities, second, to reduce the amount available under the Ratio-Based Incremental Facilities (to the extent permitted by the pro forma calculation of security with the Obligations under Term Loans and Revolving Credit Loans that are secured on a first lien basis, the Consolidated First Lien Net Leverage Ratio does not exceed 5.002.50:1.00required) and, third, to reduce the maximum amount under the Cash-Capped Incremental Facilities, (2B) if such Incremental Equivalent Debt ranks junior in right of security with the Obligations pursuant to this Section 2.15 may be incurred under the Term Loans and Revolving Credit Loans that are secured on a first lien basisRatio-Based Incremental Facility, the Secured Net Leverage Ratio does not exceed 6.254.20: 1.00 Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction by first calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts utilized pursuant to the Ratio-Based Incremental Facility or the Cash-Capped Incremental Facility), then calculating the incurrence under the Ratio-Based Incremental Facility (without inclusion of any amounts utilized pursuant to the Cash-Capped Incremental Facility) and then calculating the incurrence under the Cash-Capped Incremental Facility and (3C) if the Borrower may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such Incremental Equivalent Debt is unsecuredredesignation, the Total Net Leverage Ratio does not exceed 6.254.20: 1.00 or (B) together with such Incremental Equivalent Debt, Borrower would be permitted to incur the aggregate principal amount of Indebtedness being so redesignated under the Ratio-Based Incremental Equivalent Debt incurred or issued under this clause Facility (B) and Incremental Term Loans made and Incremental Revolving Credit Commitments established under Section 2.14(d)(iii)(B) (plus the Second Lien Incremental Usage Amount) does not exceed $85,000,000 (provided, that such amount shall not be reduced by the Term B-2 Loans, Additional Commitments (as defined in Amendment No. 1) or the 2016 Second Lien Incremental Term Loan (as defined in Amendment No.1)), following the Amendment No. 3 Effective Date, $42,600,000 plus the principal amount of any voluntary prepayments of Term Loans made after the Amendment No. 3 Effective Date (to the extent not made with the proceeds of Indebtedness (other than the incurrence of Revolving Credit Loans or extensions of credit under any other revolving credit or similar facility)) plus in the case of any Incremental Equivalent Debt incurred or established after the Amendment No. 3 Effective Date that effectively extends the Maturity Date or any other maturity date with respect to any Class of Loans or Commitments hereunder, an amount equal to the portion of the relevant Class of Loans or Commitments that will be replaced by such Incremental Commitments plus (iv)in the case of any Incremental Equivalent Debt incurred or established after the Amendment No. 3 Effective Date that effectively replaces any Revolving Credit Commitment terminated in accordance with Section 3.07, an amount equal to the relevant terminated Revolving Credit Commitment (andwhich, for the avoidance of doubt, shall have the effect of increasing the Cash-Capped Incremental Facility by the amount under of such redesignated Indebtedness). The Borrower, after consultation with the Administrative Agent, may appoint any Person that is not an Affiliate of the Borrower as arranger of such Incremental Equivalent Debt (such Person (who may be the Administrative Agent, if it so agrees), the “Incremental Equivalent Debt Arranger”).
(b) As a condition precedent to the issuance of any Incremental Equivalent Debt pursuant to this clause Section 2.15, (i) shall not be reduced by the increase in the Initial Revolving Credit Commitments occurring on the Amendment No. 3 Effective Date), (ii) such Incremental Equivalent Debt shall not be subject to any Guarantee guaranteed by any Person other than that is not a Loan Party, (iii) if such Incremental Equivalent Debt is secured, the obligations in respect thereof Party or that does not become a Loan Party and shall not be secured by any Lien a lien on any asset assets of Holdings, a Loan Party that is not part of the Borrower or any Restricted Subsidiary other than any asset constituting Collateral, (ivii) no Default or Event of Default shall have occurred and be continuing or would exist immediately after giving effect to such incurrence, (v) if such Incremental Equivalent Debt is secured, the security agreements and other collateral documents relating to such Incremental Equivalent Debt shall be substantially similar to the Collateral Documents (with such differences as are reasonably satisfactory to extent secured by the Administrative Agent)Collateral, (vi) if such Incremental Equivalent Debt is (a) secured on a pari passu basis with the Obligations under Term Loans and Revolving Credit Loans that are secured on a first lien basis, then such Incremental Equivalent Debt shall be subject to a First Lien Intercreditor Agreement, (b) secured on a junior basis with the Obligations under Term Loans and Revolving Credit Loans intercreditor arrangements that are secured on a first lien basis, then such Incremental Equivalent Debt shall be subject to the Second Lien Intercreditor Agreement or other lien subordination and intercreditor arrangement reasonably satisfactory to the Borrower and Incremental Notes Arranger and, if such Incremental Notes Arranger is not the Administrative Agent or (c) unsecured and subordinated to Agent, the Obligations, then such Incremental Equivalent Debt shall be subject to a Subordination Agreement (or, alternatively, terms in the definitive documentation for such Incremental Equivalent Debt substantially similar to those in such applicable agreement, as agreed by the Borrower and Administrative Agent), (viiiii) such Incremental Equivalent Debt shall have a final maturity date which is no earlier than the then Latest Maturity Date and a Weighted Average Life to Maturity which is equal to or greater than Date, (iv) the Weighted Average Life to Maturity of such Incremental Equivalent Debt shall not (A) be shorter than the remaining Weighted Average Life to Maturity of any then-existing Term B-3 LoansLoan Tranche, or (B) to the extent unsecured, be subject to any amortization prior to the final maturity thereof, or be subject to any mandatory redemption or prepayment provisions or rights (except (x) customary assets sale, event of loss or similar event or change of control provisions and customary acceleration rights after an event of default, (viiiy) special mandatory redemptions in connection with customary escrow arrangements or (z) so called “AHYDO” payments, (v) such Incremental Equivalent Debt (other than any Extendable Bridge Loans/Interim Debt) shall not be subject to any mandatory redemption or prepayment provisions or rights (except to the extent any such mandatory redemption or prepayment is required to be applied pro rata to the Term Loans required to be and other Indebtedness that is secured on a first lien pari passu basis and except with respect to customary “AHYDO catch-up payments”, offers to repurchase and prepayment events upon a change of control, asset sale or event of loss and a customary acceleration right after an event of defaultthe Obligations) and (ixvi) except as otherwise set forth in this clause (h), such Incremental Equivalent Debt shall have terms the covenants and conditions events of default are no more restrictive (other than with respect to pricing, fees, rate floors the Applicable Rate and optional prepayment or and redemption terms) substantially similar to), or (when taken as a whole) no more favorable (as reasonably determined by the Borrower) to the lenders or holders providing such Incremental Equivalent Debt, than those applicable to under the Term B-3 Loans (except for then-existing Facilities, unless such covenants or other provisions (a) conformed (or added) in the Loan Documents, for the benefit and events of the Lenders holding Term B-3 Loans, pursuant to an amendment thereto subject solely to the reasonable satisfaction of the Administrative Agent or (b) default are applicable only to periods after the Latest Maturity Date or such covenants and events of default are, in consultation with, and subject to the consent (not to be unreasonably withheld) of, the Administrative Agent, incorporated into this Agreement (or any other applicable Loan Document) for the benefit of all existing Lenders (to the extent applicable to such Lender) without further amendment requirements (it being understood that (x) no Incremental Equivalent Debt shall include any financial maintenance covenants (including indirectly by way of a cross-default to this Agreement), but that customary cross-acceleration provisions may be included and (y) any negative covenants with respect to indebtedness, investments, liens or restricted payments shall be incurrence-based) and (vii) subject to clauses (i) through (vi) above, the other terms of such Incremental Equivalent Debt are customary for similar debt securities in light of then-prevailing market conditions at the time of issuance (provided that any such negative covenants applicable to Extendable Bridge Loans/Interim Debt may be maintenance covenants) (provided that, at the issuance or Borrower’s option, delivery of a certificate of a Responsible Officer of the Borrower delivered to the Incremental Notes Arranger in good faith at least five Business Days prior to the incurrence of such Incremental Equivalent Debt) , together with a reasonably detailed description of the material terms and conditions of such Incremental Equivalent Debt or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirement set forth in this clause (b), shall be current market conclusive evidence that such terms for and conditions satisfy such type requirement unless the Incremental Notes Arranger provides notice to the Borrower of its objection during such five Business Day period (including a reasonable description of the basis upon which it objects) and provided, further, that if the terms of the Incremental Equivalent Debt are substantially identical to the Senior Notes, the conditions in this clause (as reasonably determined in good faith b) shall be deemed to be satisfied). Notwithstanding the foregoing, the conditions precedent to each such increase shall be agreed to by the Lenders providing such increase and the Borrower). It is understood that Incremental Equivalent Debt may be incurred under either clause (i)(A) or clause (i)(B) of the immediately preceding sentence as selected by the Borrower in its sole discretion, including by designating any portion of Any Incremental Equivalent Debt in excess the form of an secured Term Loans (other than Extendable Bridge Loans/Interim Debt) denominated in Dollars that is incurred on or prior to the date that is twelve months after the Closing Date, the All-in Yield payable by the Borrower applicable to such Incremental Equivalent Debt shall be determined by the Borrower and the lenders providing such Incremental Equivalent Debt and shall not be more than 50 basis points higher than the corresponding All-in Yield payable by the Borrower for the Initial Term Loans, unless the All-in Yield with respect to the Initial Term Loans is increased to the amount permitted necessary so that the difference between the All-in Yield with respect to such Incremental Equivalent Debt and the corresponding All-in Yield on the Initial Term Loans is equal to 50 basis points.
(c) The Lenders hereby authorize the Incremental Notes Arranger (and the Lenders hereby authorize the Incremental Notes Arranger to execute and deliver such amendments) to enter into amendments to this Agreement and the other Loan Documents with the Borrower as may be necessary in order to secure any Incremental Equivalent Debt with the Collateral and/or to make such technical amendments as may be necessary or appropriate in the reasonable opinion of the Incremental Notes Arranger and the Borrower in connection with the issuance of such Incremental Equivalent Debt, in each case on terms consistent with this Section 2.15. If the Incremental Notes Arranger is not the Administrative Agent, the actions authorized to be incurred under taken by the Incremental Notes Arranger herein shall be done in consultation with the Administrative Agent and, with respect to applicable documentation (including amendments to this Agreement and the other Loan Documents), any comments to such clause (i)(A) at documentation reasonably requested by the time of such incurrence as incurred under such clause (i)(B)Administrative Agent shall be reflected therein.
Appears in 1 contract
Sources: Credit Agreement (Allison Transmission Holdings Inc)
Incremental Equivalent Debt. The In addition, the Borrower maymay utilize any portion of the Incremental Facility Increase Amount in effect at such time to issue or incur Indebtedness consisting of term loans (whether pari passu, upon notice subordinated in right of payment to the Administrative AgentObligations, at any time or from time to time after the Closing Date, issue, incur or otherwise obtain Indebtedness of the Borrower (and any Permitted Refinancing thereof) in respect of one or more series of senior or subordinated notes or loans (which may be unsecured or secured on a by Liens ranking junior lien basis oror subordinate to the Liens securing the Obligations) or notes (whether pari passu, subordinated in right of payment to the case of notes onlyObligations, a unsecured or secured by Liens ranking junior or subordinate to or pari passu basis with the Obligations under Term Loans and Revolving Credit Loans required to be secured on a first lien basis)Liens securing the Obligations) or any bridge facility, in each case in respect of the issuance of notes, issued in (A) a public offering, Rule 144A or and/or other private placement and/or (B) a bridge facility or bridge a syndicated loan financing or otherwise in lieu of the foregoing, or senior or subordinated mezzanine Indebtedness (which may be in the form of loans or notes and limited to being unsecured or secured solely on a junior lien basis), in each case, that are issued or made in lieu of Incremental Revolving Credit Commitments and/or an Incremental Term Commitments Facility (the “Incremental Equivalent Debt”); provided that (i) (A) after giving Pro Forma Effect to both (x) the issuance or incurrence of such Incremental Equivalent Debt (assuming a borrowing of the maximum credit thereunder) and (y) any Specified Transactions consummated in connection therewith, (1) if such Incremental Equivalent Debt ranks pari passu in right of security with the Obligations under Term Loans and Revolving Credit Loans that are secured on a first lien basis, the Consolidated First Lien Net Leverage Ratio does not exceed 5.002.50:1.00, (2) if such Incremental Equivalent Debt ranks junior in right of security with the Obligations under the Term Loans and Revolving Credit Loans that are secured on a first lien basis, the Secured Net Leverage Ratio does not exceed 6.254.20: 1.00 and (3) only if such Incremental Equivalent Debt is unsecuredin the form of term loans or notes that are pari passu with the Initial Term Loans in right of payment and with respect to security and, the Total Net Leverage Ratio does not exceed 6.254.20: 1.00 or (B) together with if such Incremental Equivalent DebtDebt were incurred as an Incremental Facility, would have triggered the MFN Adjustment, the aggregate principal amount of Incremental Equivalent Debt incurred or issued under this clause (B) and Incremental Term Loans made and Incremental Revolving Credit Commitments established under Section 2.14(d)(iii)(B) (plus the Second Lien Incremental Usage Amount) does not exceed $85,000,000 (provided, that such amount MFN Adjustment shall not be reduced by the Term B-2 Loans, Additional Commitments (as defined in Amendment No. 1) or the 2016 Second Lien Incremental Term Loan (as defined in Amendment No.1)), following the Amendment No. 3 Effective Date, $42,600,000 plus the principal amount of any voluntary prepayments of Term Loans made after the Amendment No. 3 Effective Date (to the extent not made with the proceeds of Indebtedness (other than the incurrence of Revolving Credit Loans or extensions of credit under any other revolving credit or similar facility)) plus in the case of any Incremental Equivalent Debt incurred or established after the Amendment No. 3 Effective Date that effectively extends the Maturity Date or any other maturity date with respect to any Class of Loans or Commitments hereunder, an amount equal to the portion of the relevant Class of Loans or Commitments that will be replaced by such Incremental Commitments plus (iv)in the case of any Incremental Equivalent Debt incurred or established after the Amendment No. 3 Effective Date that effectively replaces any Revolving Credit Commitment terminated in accordance with Section 3.07, an amount equal to the relevant terminated Revolving Credit Commitment (and, for the avoidance of doubt, the amount under this clause (i) shall not be reduced by the increase in the Initial Revolving Credit Commitments occurring on the Amendment No. 3 Effective Date)apply, (ii) such Incremental Equivalent Debt shall not be subject (x) to any Guarantee by any Person other than a Loan Party, (iii) if the extent such Incremental Equivalent Debt is securedpari passu to the Initial Term Loans in right of payment and with respect to security, does not mature earlier than the obligations Latest Maturity Date of the existing Term Loans, (y) to the extent such Incremental Equivalent Debt is junior to the Initial Term Loans in right of payment or with respect thereof to security (including by being unsecured), does not mature earlier than 91 days following the Latest Maturity Date applicable to the Initial Term Loans, and (z) does not have a Weighted Average Life to Maturity shorter than the Weighted Average Life to Maturity applicable to the existing Term Loans (provided that the requirement of this subclause (ii) shall not apply to any Incremental Equivalent Debt consisting of a customary bridge facility, so long as the long-term indebtedness into which such customary bridge facility is to be converted satisfies this subclause (ii)), (iii) such Incremental Equivalent Debt shall not be secured guaranteed by any Lien on any asset of Holdings, the Borrower or any Restricted Subsidiary other than any asset constituting CollateralPerson that is not a Credit Party (unless such Person shall substantially concurrently become a Credit Party hereunder pursuant to Section 5.10), (iv) if secured, such Incremental Equivalent Debt (x) is not secured by any assets not securing the Loans (unless such assets shall substantially concurrently become a part of the Collateral) and (y) is subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and the Borrower, (v) no Default or Event of Default shall have occurred and be continuing or would exist immediately after giving effect (provided that, solely with respect to such incurrenceany Incremental Equivalent Debt incurred in connection with a Limited Condition Transaction, (vx) if no Event of Default shall exist at the time of execution of the definitive documentation for such Limited Condition Transaction and (y) no Specified Event of Default shall exist at the time that such Incremental Equivalent Debt is securedeffective hereunder), (vi) any Incremental Equivalent Debt that is (x) pari passu with the Initial Term Loans in right of payment and with respect to security agreements may provide for the ability to participate (1) on a pro rata basis, less than pro rata basis or greater than pro rata basis in any voluntary prepayments and other collateral documents relating (2) on a pro rata basis or less than pro rata basis (or greater than pro rata basis with respect to such prepayments constituting permitted refinancings) in any mandatory prepayments, in each case, of the Term Loans and (y) junior to the Initial Term Loans in right of payment or with respect to security may provide for the ability to participate on a less than pro rata basis in any voluntary and/or mandatory prepayments of the Term Loans, but shall not be on a pro rata or greater than pro rata basis; provided that any unsecured Incremental Equivalent Debt shall be not share in any voluntary or mandatory prepayments of the Term Loans and (vii) the other terms and conditions (excluding pricing, interest rate margins, interest rate floors, discounts, fees, premiums, maturity and prepayment or redemption terms), if not substantially similar to consistent with the Collateral Documents (with such differences terms of the existing Term Loans, are as are otherwise reasonably satisfactory to the Administrative Agent (it being understood that (A) terms not substantially consistent with the existing Term Loans that are applicable only after the Latest Maturity Date at such time will be deemed to be satisfactory to the Administrative Agent), (viB) if terms contained in such Incremental Equivalent Debt is (a) secured on that are, taken as a pari passu basis with whole, more favorable to the Obligations under Term Loans and Revolving Credit Loans that are secured on a first lien basis, then lenders or the agent of such Incremental Equivalent Debt shall be subject and are substantially concurrently conformed (or added) to a First Lien Intercreditor Agreement, (b) secured on a junior basis with the Obligations Credit Documents for the benefit of the lenders under the existing Term Loans or the Administrative Agent, as applicable, will be deemed to be satisfactory to the Administrative Agent and Revolving Credit Loans that are secured on a first lien basis, then (C) terms contained in such Incremental Equivalent Debt shall be subject to the Second Lien Intercreditor Agreement or other lien subordination and intercreditor arrangement satisfactory to the Borrower and the Administrative Agent or (c) unsecured and subordinated to the Obligations, that reflect then such Incremental Equivalent Debt shall be subject to a Subordination Agreement (or, alternatively, terms in the definitive documentation for such Incremental Equivalent Debt substantially similar to those in such applicable agreement, as agreed by the Borrower and Administrative Agent), (vii) such Incremental Equivalent Debt shall have a final maturity date which is no earlier than the then Maturity Date and a Weighted Average Life to Maturity which is equal to or greater than the Weighted Average Life to Maturity of the Term B-3 Loans, (viii) such Incremental Equivalent Debt shall not be subject to any mandatory redemption or prepayment provisions or rights (except to the extent any such mandatory redemption or prepayment is required to be applied pro rata to the Term Loans required to be secured on a first lien basis and except with respect to customary “AHYDO catch-up payments”, offers to repurchase and prepayment events upon a change of control, asset sale or event of loss and a customary acceleration right after an event of default) and (ix) except as otherwise set forth in this clause (h), such Incremental Equivalent Debt shall have current market terms and conditions (other than with respect to pricing, fees, rate floors and optional prepayment or redemption terms) substantially similar to, or (taken as a whole) no more favorable at the time of incurrence or issuance (as reasonably determined by the BorrowerBorrower in good faith) will be deemed to be satisfactory to the lenders or holders providing Administrative Agent) (provided that, to the extent that any financial maintenance covenant is added for the benefit of such Incremental Equivalent Debt, than those applicable to no consent shall be required from the Term B-3 Loans (except for covenants Administrative Agent or other provisions any of the Lenders if such financial maintenance covenant is either (a) conformed (or added) in the Loan Documents, also added for the benefit of the Lenders holding Term B-3 Loans, pursuant to an amendment thereto subject solely to under the reasonable satisfaction of the Administrative Agent Credit Documents or (b) only applicable only to periods after the Latest Maturity Date at the time of the issuance or incurrence of such Incremental Equivalent Debt) or such terms and conditions shall be current market terms for such type of Incremental Equivalent Debt (as reasonably determined in good faith by the Borrower). It is understood that Incremental Equivalent Debt may be incurred under either clause (i)(A) or clause (i)(B) of the immediately preceding sentence as selected by the Borrower in its sole discretion, including by designating any portion of Incremental Equivalent Debt in excess of an amount permitted to be incurred under such clause (i)(A) at the time of such incurrence as incurred under such clause (i)(Btime).
Appears in 1 contract
Incremental Equivalent Debt. The Borrower Borrowers may, upon notice by the Lead Borrower to the Administrative Agent, at any time or from time to time after the Closing Date, issue, incur or otherwise obtain Indebtedness of the Borrower (and any Permitted Refinancing thereof) Borrowers in respect of one or more series of senior or subordinated notes or loans (which may be unsecured or secured on a junior lien basis or, in the case of notes only, or a pari passu basis with the Obligations under 2018 Refinancing Term Loans, 2021 Incremental Term Loans, the 2023 Term Loans and Revolving Credit Loans required to be secured on a first lien basisLoans), and, in each the case of notes, issued in a public offering, Rule 144A or other private placement or bridge in lieu of the foregoing, or senior or subordinated mezzanine Indebtedness (which may be in the form of loans or notes and limited to being unsecured or secured solely on a junior lien basis), in each case, that are issued or made in lieu of Incremental Revolving Credit Commitments and/or Incremental Term Commitments (the “Incremental Equivalent Debt”); provided that (i) (A) after giving Pro Forma Effect to both (x) the issuance or incurrence of such Incremental Equivalent Debt (assuming a borrowing of the maximum credit available thereunder) and (y) any Specified Transactions consummated in connection therewith, (1) if such Incremental Equivalent Debt ranks pari passu in right of security with the Obligations under Term B Loans and Revolving Credit Loans that are secured on a first lien basisLoans, the Consolidated First Lien Net Leverage Ratio does not exceed 5.002.50:1.00, 2.00:1.00 and (2) if such Incremental Equivalent Debt ranks junior in right of security with the Obligations under the Term B Loans and Revolving Credit Loans that are secured on a first lien basisLoans, the Secured Net Leverage Ratio does not exceed 6.254.20: 1.00 and (3) if such Incremental Equivalent Debt is unsecured, the Total Net Leverage Ratio does not exceed 6.254.20: 1.00 2.00:1.00 or (B) together with such Incremental Equivalent Debt, the aggregate principal amount of Incremental Equivalent Debt incurred or issued under this clause (B) and Incremental Term Loans made and Incremental Revolving Credit Commitments established under Section 2.14(d)(iii)(B) (plus the Second Lien Incremental Usage Amount2.16(d)(iii)(B) does not exceed the sum of (a) $85,000,000 385,000,000 plus (provided, that such amount shall not be reduced by the Term B-2 Loans, Additional Commitments (as defined in Amendment No. 1b) or the 2016 Second Lien Incremental Term Loan (as defined in Amendment No.1)), following the Amendment No. 3 Effective Date, $42,600,000 plus the principal amount of any voluntary prepayments of Term Loans made after the Amendment No. 3 Effective Date (other than to the extent not made with the proceeds of Indebtedness (other than the incurrence of Revolving Credit Loans or extensions of credit under any other revolving credit or similar facility)) plus in the case of any Incremental Equivalent Debt incurred or established after the Amendment No. 3 Effective Date that effectively extends the Maturity Date or any other maturity date with respect to any Class of Loans or Commitments hereunder, an amount equal to the portion of the relevant Class of Loans or Commitments that will be replaced by such Incremental Commitments plus (iv)in the case of any Incremental Equivalent Debt incurred or established after the Amendment No. 3 Effective Date that effectively replaces any Revolving Credit Commitment terminated in accordance with Section 3.07, an amount equal to the relevant terminated Revolving Credit Commitment (and, for the avoidance of doubt, the amount under this clause (i) shall not be reduced by the increase in the Initial Revolving Credit Commitments occurring on the Amendment No. 3 Effective Date), (ii) such Incremental Equivalent Debt shall not be subject to any Guarantee by any no Person other than a Loan PartyParty shall provide a Guarantee or otherwise be an obligor with respect to such Incremental Equivalent Debt, (iii) if such Incremental Equivalent Debt is secured, the obligations in respect thereof shall not be secured by any Lien on any asset of Holdings, the Borrower or any Restricted Subsidiary other than any asset constituting the Collateral, (iv) no Default or Event of Default shall have occurred and be continuing or would exist immediately after giving effect to such incurrence, (v) if such Incremental Equivalent Debt is secured, the security agreements and other collateral documents relating to such Incremental Equivalent Debt shall be substantially similar to the Collateral Documents (with such differences as are reasonably satisfactory to the Administrative Agent), (vi) if such Incremental Equivalent Debt is (a) secured on a pari passu basis with the Obligations under Term B Loans and Revolving Credit Loans that are secured on a first lien basisLoans, then such Incremental Equivalent Debt shall be subject to a new or then-existing First Lien Intercreditor Agreement, (b) secured Agreement to which a Senior Representative acting on a junior basis with behalf of the Obligations under Term Loans and Revolving Credit Loans that are secured on a first lien basis, then holders of such Incremental Equivalent Debt shall be become a party or otherwise subject to the Second Lien Intercreditor Agreement or other another lien subordination and or intercreditor arrangement satisfactory to the Borrower and the Administrative Agent or (cb) unsecured secured on a junior basis with the Term B Loans and subordinated to the ObligationsRevolving Credit Loans, then such Incremental Equivalent Debt shall be subject to a Subordination new or then-existing Second Lien Intercreditor Agreement (or, alternatively, terms in to which a Senior Representative of the definitive documentation for holders of such Incremental Equivalent Debt substantially similar shall become a party or otherwise subject to those in such applicable agreement, as agreed by another lien subordination and intercreditor arrangement satisfactory to the Lead Borrower and the Administrative Agent), (vii) such Incremental Equivalent Debt shall have a final maturity date which is no earlier than the then Maturity Date and a Weighted Average Life to Maturity which is equal to or greater no shorter than the Weighted Average Life to Maturity of the Term B-3 B Loans, (viii) such Incremental Equivalent Debt shall not be subject to any mandatory redemption or prepayment provisions or rights (except to the extent any such mandatory redemption or prepayment is required to be applied pro rata (but not greater than pro rata) to the Term Loans required to be secured on a first lien basis and basis, except with respect to customary “AHYDO catch-catch up payments”, ” and except with respect to customary offers to repurchase and prepayment events upon a change of control, asset sale or event of loss and a customary acceleration right after an event of default; provided that any such Incremental Equivalent Debt that is junior in right of payment or security with respect to the Term B Loans may only participate in any such mandatory repurchases and prepayments with respect to customary offers to repurchase and prepayment events upon an asset sale or event of loss on a junior basis to the Term B Loans and any then-existing Term Loans that are pari passu in right of payment and security with the Term B Loans), (ix) the provisions set forth in Section 2.16(e)(iii) shall apply to any Incremental Equivalent Debt in the form of loans that ranks pari passu in right of payment and security with the Term B Loans and Revolving Credit Loans as if such Incremental Equivalent Debt were a Class of Incremental Term Loans that is pari passu in right of payment and security with the Term B Loans and (ixx) except as otherwise set forth in this clause (h), such Incremental Equivalent Debt shall have terms and conditions (other than with respect to pricing, fees, rate floors and optional prepayment or redemption terms) substantially similar to, or (taken as a whole) no more favorable (as reasonably determined by the Lead Borrower) to the lenders or holders providing such Incremental Equivalent Debt, than those applicable to the Term B-3 B Loans (except for covenants or other provisions (a) conformed (or added) in the Loan Documents, for the benefit of the Lenders holding Term B-3 B Loans, pursuant to an amendment thereto subject solely to the reasonable satisfaction of the Administrative Agent or (b) applicable only to periods after the Latest Maturity Date at the time of the issuance or incurrence of such Incremental Equivalent Debt) or such terms and conditions shall be current market terms for such type of Incremental Equivalent Debt (as reasonably determined in good faith by the Lead Borrower). It is understood that Incremental Equivalent Debt may be incurred under either clause (i)(A) or clause (i)(B) of the immediately preceding sentence as selected by the Lead Borrower in its sole discretion, including by designating any portion of Incremental Equivalent Debt in excess of an amount permitted to be incurred under such clause (i)(A) at the time of such incurrence as incurred under such clause (i)(B).
Appears in 1 contract
Sources: Credit Agreement (Trinseo PLC)
Incremental Equivalent Debt. (a) The Borrower and the Guarantors may, from time to time, upon notice by the Borrower to the Administrative Agent, at any time specifying in reasonable detail the proposed terms thereof, issue or from time to time after the Closing Date, issue, incur or otherwise obtain Indebtedness of the Borrower (and any Permitted Refinancing thereof) in respect of one or more series of senior unsecured notes, senior secured first lien or junior lien notes or subordinated notes or loans (which may be unsecured or secured on a junior lien basis or, in the case of notes only, a pari passu basis with the Obligations under Term Loans and Revolving Credit Loans required to be secured on a first lien basis)notes, in each case issued in a public offering, Rule 144A or other private placement or customary bridge facility in lieu respect of the foregoingforegoing (and any Registered Equivalent Notes issued in exchange therefor), junior lien secured or senior unsecured or subordinated loans or junior lien secured or unsecured mezzanine Indebtedness that, if secured, will (which may be i) in the form case of loans any such Indebtedness constituting notes issued in a public offering, Rule 144A or notes other private placement, be secured by the Collateral on a pari passu or junior basis with the Obligations and limited to being unsecured or (ii) in the case of any such Indebtedness constituting loans, shall be secured by the Collateral solely on a junior lien basis)basis with the Obligations, in each case, and that are issued or made in lieu of Incremental Revolving Credit Commitments and/or an Incremental Term Commitments Facility pursuant to an indenture, a note purchase agreement, loan or credit agreement or otherwise (the such Indebtedness, collectively, “Incremental Equivalent Debt”)) in a principal amount not to exceed the Incremental Amount at the time of incurrence; provided that (i) (A) after giving Pro Forma Effect to both (x) the issuance or incurrence of such Incremental Equivalent Debt (assuming a borrowing of the maximum credit thereunder) and (y) any Specified Transactions consummated in connection therewith, (1) if such Incremental Equivalent Debt ranks pari passu in right of security with the Obligations under Term Loans and Revolving Credit Loans that are secured on a first lien basis, the Consolidated First Lien Net Leverage Ratio does not exceed 5.002.50:1.00, (2) if such Incremental Equivalent Debt ranks junior in right of security with the Obligations under the Term Loans and Revolving Credit Loans that are secured on a first lien basis, the Secured Net Leverage Ratio does not exceed 6.254.20: 1.00 and (3) if such Incremental Equivalent Debt is unsecured, the Total Net Leverage Ratio does not exceed 6.254.20: 1.00 or (B) together with such Incremental Equivalent Debt, the aggregate principal amount of Incremental Equivalent Debt incurred or issued under this clause (B) and Incremental Term Loans made and Incremental Revolving Credit Commitments established under Section 2.14(d)(iii)(B) (plus the Second Lien Incremental Usage Amount) does not exceed $85,000,000 (provided, that such amount shall not be reduced by the Term B-2 Loans, Additional Commitments (as defined in Amendment No. 1) or the 2016 Second Lien Incremental Term Loan (as defined in Amendment No.1)), following the Amendment No. 3 Effective Date, $42,600,000 plus the principal amount of any voluntary prepayments of Term Loans made after the Amendment No. 3 Effective Date (to the extent not made with the proceeds of Indebtedness (other than the incurrence of Revolving Credit Loans or extensions of credit under any other revolving credit or similar facility)) plus in the case of any Incremental Equivalent Debt incurred or established after that is secured by the Amendment No. 3 Effective Date that effectively extends Collateral on a junior basis with the Maturity Date or any other maturity date with respect to any Class Obligations, is subordinated in right of Loans or Commitments hereunder, an amount equal payment to the portion Obligations (whether or not such Indebtedness is secured) or is unsecured, the First Lien Net Leverage Ratio test set forth in clause (b) of the relevant Class definition of Loans or Commitments that will Incremental Amount shall be deemed to be replaced by with the requirement that, after giving Pro Forma Effect to the incurrence of such Incremental Commitments plus Equivalent Debt (iv)in including the use of proceeds thereof and, in the case of any such Incremental Equivalent Debt incurred structured as a revolving or established after “delayed-draw” or similar facility, assuming a full utilization thereof and, in each case, with the Amendment No. 3 Effective Date that effectively replaces proceeds of any Revolving Credit Commitment terminated in accordance with Section 3.07, an amount equal to such Incremental Equivalent Debt being excluded from the relevant terminated Revolving Credit Commitment determination of Unrestricted Cash and Cash Equivalents for such calculation (andbut, for the avoidance of doubt, giving effect to any repayment, repurchase or other reduction of Indebtedness effected with such proceeds)), the amount under Total Net Leverage Ratio would not exceed 5.50:1.00.
(b) As a condition precedent to the issuance or incurrence of any Incremental Equivalent Debt pursuant to this clause Section 2.20, (i) the Borrower shall not deliver to the Administrative Agent a certificate dated as of the date of issuance or incurrence of the Incremental Equivalent Debt signed by a Responsible Officer certifying that the conditions set forth in this Section 2.20(b) have been satisfied and, if the Borrower is relying on clause (b) of the definition of Incremental Amount for purposes of incurring all or any portion of such Incremental Equivalent Debt, that the Borrower is in Pro Forma Compliance with the First Lien Net Leverage Ratio requirement set forth in such provision (or any applicable Total Net Leverage Ratio required to be reduced by tested in lieu thereof pursuant to the increase proviso set forth in the Initial Revolving Credit Commitments occurring on the Amendment No. 3 Effective Dateimmediately preceding clause (a)), (ii) such Incremental Equivalent Debt shall not be borrowed by or subject to any Guarantee by any Person other than a Loan Partythe Borrower and the Guarantors, (iii) if to the extent such Incremental Equivalent Debt is secured, the obligations in respect thereof shall not be secured by any Lien on any asset of Holdings, the Borrower or any Restricted Subsidiary other than any asset constituting Collateral, (ivx) no Default or Event of Default shall have occurred and be continuing or would exist immediately after giving effect to such incurrence, (v) if such Incremental Equivalent Debt is secured, the security agreements and other collateral documents relating to such Incremental Equivalent Debt shall be substantially similar not materially more burdensome to the Borrower, taken as a whole, than the Collateral Documents (with such differences exceptions as are reasonably satisfactory to the Administrative Agent), (viy) if such Incremental Equivalent Debt shall be secured (if at all) either on a pari passu basis with the Obligations or on a junior basis to the Liens that secure the Obligations, in each case solely on all or some of the Collateral that secures the Facilities and (z) such Incremental Equivalent Debt shall be subject to in the case of Incremental Equivalent Debt that will be secured by the Collateral to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent, (iv) (A) the final maturity of any Incremental Equivalent Debt consisting of revolving credit commitments shall be no earlier than the Latest Maturity Date relating to the Revolving Credit Facility in effect at the time of incurrence and (B) the final maturity of any other Incremental Equivalent Debt shall be no earlier than the Latest Term Loan Maturity Date in effect at the time of the incurrence, issuance or obtainment of such Indebtedness, (v) (A) the terms of such Indebtedness that constitutes notes do not provide for any mandatory prepayment, repurchase, redemption or sinking fund obligations prior to the Latest Term Loan Maturity Date in effect at the time of the incurrence, issuance or obtainment of such Indebtedness (other than customary prepayments, repurchases or redemptions or offers to prepay, redeem or repurchase or mandatory prepayments upon a change of control, asset sale or casualty or condemnation event, and customary acceleration rights after an event of default), (B) any such Indebtedness that constitutes loans may participate on a pro rata basis or less than pro rata basis (but, except as otherwise expressly permitted by this Agreement, not on a greater than pro rata basis) in any prepayments of the Initial Term Facility pursuant to Section 2.05(a) and 2.05(b) (other than prepayments of the Initial Term Facility pursuant to Section 2.05(b)(iii)(x)) and (C) the terms of any Incremental Equivalent Debt (other than revolving credit commitments) have a Weighted Average Life to Maturity that is no shorter than the then-longest remaining Weighted Average Life to Maturity of the Tranches of Term Loans outstanding at the time of incurrence, (avi) the terms and conditions of such Indebtedness (excluding, for the avoidance of doubt, interest rates (including through fixed interest rates), interest margins, rate floors, fees, funding discounts, original issue discounts and prepayment or redemption premiums and terms) are, when taken as a whole, are (x) substantially identical to or (y) not materially more favorable to the lenders or holders providing such Indebtedness than those applicable to the Facilities when taken as a whole (other than covenants (including financial maintenance covenants) or other provisions applicable only to periods after the Latest Maturity Date in effect at the time of incurrence, issuance or obtainment of such Indebtedness) (provided that a certificate of a Responsible Officer delivered to the Administrative Agent at the time of the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirement of this clause (vi)(y) shall be conclusive evidence that such terms and conditions satisfy such requirement) or are otherwise reasonably acceptable to the Administrative Agent, (vii) the pricing applicable to the Incremental Equivalent Debt shall be determined by the Borrower and the applicable lenders providing such Incremental Equivalent Debt; provided that any such Incremental Equivalent Debt that is secured on a pari passu basis with the Obligations under Term Loans and Revolving Credit Loans that are secured on a first lien basis, then such Incremental Equivalent Debt shall be subject to a First Lien Intercreditor Agreement, (b) secured on a junior basis with the Obligations under Term Loans and Revolving Credit Loans that are secured on a first lien basis, then such Incremental Equivalent Debt shall be subject to the Second Lien Intercreditor terms of Section 2.16(e)(vi) (assuming, for such purposes, that such Incremental Equivalent Debt were being incurred in the form of Incremental Term Loans), (viii) no Default shall have occurred and be continuing or would result after giving effect to such Incremental Equivalent Debt (including the use of the proceeds thereof) (provided that, if such Incremental Equivalent Debt is being incurred in connection with a Limited Condition Acquisition, the Lenders providing such Incremental Equivalent Debt may agree to limit the foregoing condition to provide that no Event of Default under Sections 8.01(a), (f) or (g) shall have occurred and be continuing or would result after giving effect to the incurrence of such Incremental Equivalent Debt), (ix) after giving effect to the making or issuance of any Incremental Equivalent Debt (including the use of the proceeds thereof), the conditions set forth in Section 4.02(a) shall be satisfied (provided that, if such Incremental Equivalent Debt is being incurred in connection with a Limited Condition Acquisition, the Lenders providing such Incremental Equivalent Debt may agree to limit the foregoing condition to relate solely to the accuracy of the Specified Representations and the Acquisition Agreement or other lien subordination Representations, and intercreditor arrangement satisfactory to be subject to customary limitations on collateral-related requirements (in each case, modified as necessary for such Limited Condition Acquisition)) and (x) after giving effect to such Incremental Equivalent Debt (including the use of the proceeds thereof), the Borrower shall be in Pro Forma Compliance with the financial covenant contained in Section 7.10.
(c) The Lenders hereby authorize the Administrative Agent to enter into amendments (which may be executed and delivered solely by the Borrower and the Administrative Agent Agent) to this Agreement and the other Loan Documents with the Borrower as may be necessary or (c) unsecured and subordinated appropriate in order to the Obligations, then such secure any Incremental Equivalent Debt shall with the Collateral of the Loan Parties and/or to make such technical amendments as may be subject to a Subordination Agreement (or, alternatively, terms necessary or appropriate in the definitive documentation for such Incremental Equivalent Debt substantially similar to those in such applicable agreement, as agreed by the Borrower and Administrative Agent), (vii) such Incremental Equivalent Debt shall have a final maturity date which is no earlier than the then Maturity Date and a Weighted Average Life to Maturity which is equal to or greater than the Weighted Average Life to Maturity of the Term B-3 Loans, (viii) such Incremental Equivalent Debt shall not be subject to any mandatory redemption or prepayment provisions or rights (except to the extent any such mandatory redemption or prepayment is required to be applied pro rata to the Term Loans required to be secured on a first lien basis and except with respect to customary “AHYDO catch-up payments”, offers to repurchase and prepayment events upon a change of control, asset sale or event of loss and a customary acceleration right after an event of default) and (ix) except as otherwise set forth in this clause (h), such Incremental Equivalent Debt shall have terms and conditions (other than with respect to pricing, fees, rate floors and optional prepayment or redemption terms) substantially similar to, or (taken as a whole) no more favorable (as reasonably determined by the Borrower) to the lenders or holders providing such Incremental Equivalent Debt, than those applicable to the Term B-3 Loans (except for covenants or other provisions (a) conformed (or added) in the Loan Documents, for the benefit of the Lenders holding Term B-3 Loans, pursuant to an amendment thereto subject solely to the reasonable satisfaction opinion of the Administrative Agent or (b) applicable only to periods after and the Latest Maturity Date at the time of Borrower in connection with the issuance or incurrence of such Incremental Equivalent Debt) or such , in each case in accordance with the terms and conditions shall be current market terms for such type of Incremental Equivalent Debt (as reasonably determined set forth in good faith by the Borrower). It is understood that Incremental Equivalent Debt may be incurred under either clause (i)(A) or clause (i)(B) of the immediately preceding sentence as selected by the Borrower in its sole discretion, including by designating any portion of Incremental Equivalent Debt in excess of an amount permitted to be incurred under such clause (i)(A) at the time of such incurrence as incurred under such clause (i)(B)this Section 2.20.
Appears in 1 contract
Sources: Credit Agreement (DHX Media Ltd.)
Incremental Equivalent Debt. (a) The Borrower may, upon notice to the Administrative Agent, at or any time or Guarantor may from time to time after the Closing Date, issue, incur or otherwise obtain Indebtedness of the Borrower (and any Permitted Refinancing thereof) in respect of issue one or more series of senior secured, senior unsecured, senior subordinated or subordinated notes notes, loans or loans Extendable Bridge Loans/Interim Debt (which may be unsecured or notes, loans and/or Extendable Bridge Loans/Interim Debt, if secured on a junior lien basis or, in the case of notes only, a pari passu basis with the Obligations under Term Loans and Revolving Credit Loans required to be are secured on a first lien basis), in each case issued in a public offering, Rule 144A or other private placement or bridge in lieu of “equal and ratable” basis with the foregoing, or senior or subordinated mezzanine Indebtedness (which may be in Liens securing the form of loans or notes and limited to being unsecured Obligations or secured solely on a junior lien basis)“junior” basis with the Liens securing the Obligations) and guaranteed only by Loan Parties or entities who become Loan Parties (such notes, in each caseloans and/or Extendable Bridge Loans/Interim Debt, that are issued or made in lieu of Incremental Revolving Credit Commitments and/or Incremental Term Commitments (the collectively, “Incremental Equivalent Debt”) in an amount not to exceed the sum of (A) the Cash-Capped Incremental Facility, (B) the Ratio-Based Incremental Facility and (C) the Prepayment-Based Incremental Facility (in each case, at the time of issuance); provided that (i) (A) no Event of Default would exist after giving Pro Forma Effect to both any such request, subject to Section 1.02(i), and (ii) any such issuance of Incremental Equivalent Debt shall be in a minimum amount of the lesser of (x) the issuance $20,000,000 (or incurrence of such Incremental Equivalent Debt (assuming a borrowing of the maximum credit thereunderequivalent amount) and (y) the entire amount that may be requested under this Section 2.15; provided, further, that any Specified Transactions consummated in connection therewith, (1) if such New Loan Commitments established pursuant to Section 2.14 and Incremental Equivalent Debt ranks pari passu in right issued pursuant to this Section 2.15, (A) will count, first, to reduce the amount available under Prepayment-Based Incremental Facilities, second, to reduce the amount available under the Ratio-Based Incremental Facilities (to the extent permitted by the pro forma calculation of security with the Obligations under Term Loans and Revolving Credit Loans that are secured on a first lien basis, the Consolidated First Lien Net Leverage Ratio does not exceed 5.002.50:1.00required) and, third, to reduce the maximum amount under the Cash-Capped Incremental Facilities, (2B) if such Incremental Equivalent Debt ranks junior in right of security with the Obligations pursuant to this Section 2.15 may be incurred under the Term Loans and Revolving Credit Loans that are secured on a first lien basisRatio-Based Incremental Facility, the Secured Net Leverage Ratio does not exceed 6.254.20: 1.00 Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction by first calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts utilized pursuant to the Ratio-Based Incremental Facility or the Cash-Capped Incremental Facility), then calculating the incurrence under the Ratio-Based Incremental Facility (without inclusion of any amounts utilized pursuant to the Cash-Capped Incremental Facility) and then calculating the incurrence under the Cash-Capped Incremental Facility and (3C) if the Borrower may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such Incremental Equivalent Debt is unsecuredredesignation, the Total Net Leverage Ratio does not exceed 6.254.20: 1.00 or (B) together with such Incremental Equivalent Debt, Borrower would be permitted to incur the aggregate principal amount of Indebtedness being so redesignated under the Ratio-Based Incremental Equivalent Debt incurred or issued under this clause Facility (B) and Incremental Term Loans made and Incremental Revolving Credit Commitments established under Section 2.14(d)(iii)(B) (plus the Second Lien Incremental Usage Amount) does not exceed $85,000,000 (provided, that such amount shall not be reduced by the Term B-2 Loans, Additional Commitments (as defined in Amendment No. 1) or the 2016 Second Lien Incremental Term Loan (as defined in Amendment No.1)), following the Amendment No. 3 Effective Date, $42,600,000 plus the principal amount of any voluntary prepayments of Term Loans made after the Amendment No. 3 Effective Date (to the extent not made with the proceeds of Indebtedness (other than the incurrence of Revolving Credit Loans or extensions of credit under any other revolving credit or similar facility)) plus in the case of any Incremental Equivalent Debt incurred or established after the Amendment No. 3 Effective Date that effectively extends the Maturity Date or any other maturity date with respect to any Class of Loans or Commitments hereunder, an amount equal to the portion of the relevant Class of Loans or Commitments that will be replaced by such Incremental Commitments plus (iv)in the case of any Incremental Equivalent Debt incurred or established after the Amendment No. 3 Effective Date that effectively replaces any Revolving Credit Commitment terminated in accordance with Section 3.07, an amount equal to the relevant terminated Revolving Credit Commitment (andwhich, for the avoidance of doubt, shall have the effect of increasing the Cash-Capped Incremental Facility by the amount under of such redesignated Indebtedness). The Borrower, after consultation with the Administrative Agent, may appoint any Person that is not an Affiliate of the Borrower as arranger of such Incremental Equivalent Debt (such Person (who may be the Administrative Agent, if it so agrees), the “Incremental Equivalent Debt Arranger”).
(b) As a condition precedent to the issuance of any Incremental Equivalent Debt pursuant to this clause Section 2.15, (i) shall not be reduced by the increase in the Initial Revolving Credit Commitments occurring on the Amendment No. 3 Effective Date), (ii) such Incremental Equivalent Debt shall not be subject to any Guarantee guaranteed by any Person other than that is not a Loan Party, (iii) if such Incremental Equivalent Debt is secured, the obligations in respect thereof Party or that does not become a Loan Party and shall not be secured by any Lien a lien on any asset assets of Holdings, a Loan Party that is not part of the Borrower or any Restricted Subsidiary other than any asset constituting Collateral, (ivii) no Default or Event of Default shall have occurred and be continuing or would exist immediately after giving effect to such incurrence, (v) if such Incremental Equivalent Debt is secured, the security agreements and other collateral documents relating to such Incremental Equivalent Debt shall be substantially similar to the Collateral Documents (with such differences as are reasonably satisfactory to extent secured by the Administrative Agent)Collateral, (vi) if such Incremental Equivalent Debt is (a) secured on a pari passu basis with the Obligations under Term Loans and Revolving Credit Loans that are secured on a first lien basis, then such Incremental Equivalent Debt shall be subject to a First Lien Intercreditor Agreement, (b) secured on a junior basis with the Obligations under Term Loans and Revolving Credit Loans intercreditor arrangements that are secured on a first lien basis, then such Incremental Equivalent Debt shall be subject to the Second Lien Intercreditor Agreement or other lien subordination and intercreditor arrangement reasonably satisfactory to the Borrower and Incremental Notes Arranger and, if such Incremental Notes Arranger is not the Administrative Agent or (c) unsecured and subordinated to Agent, the Obligations, then such Incremental Equivalent Debt shall be subject to a Subordination Agreement (or, alternatively, terms in the definitive documentation for such Incremental Equivalent Debt substantially similar to those in such applicable agreement, as agreed by the Borrower and Administrative Agent), (viiiii) such Incremental Equivalent Debt shall have a final maturity date which is no earlier than the then Latest Maturity Date and a Weighted Average Life to Maturity which is equal to or greater than Date, (iv) the Weighted Average Life to Maturity of such Incremental Equivalent Debt shall not (A) be shorter than the remaining Weighted Average Life to Maturity of any then-existing Term B-3 LoansLoan Tranche, or (B) to the extent unsecured, be subject to any amortization prior to the final maturity thereof, or be subject to any mandatory redemption or prepayment provisions or rights (except (x) customary assets sale, event of loss or similar event or change of control provisions and customary acceleration rights after an event of default, (viiiy) special mandatory redemptions in connection with customary escrow arrangements or (z) so called “AHYDO” payments, (v) such Incremental Equivalent Debt (other than any Extendable Bridge Loans/Interim Debt) shall not be subject to any mandatory redemption or prepayment provisions or rights (except to the extent any such mandatory redemption or prepayment is required to be applied pro rata to the Term Loans required to be and other Indebtedness that is secured on a first lien pari passu basis and except with respect to customary “AHYDO catch-up payments”, offers to repurchase and prepayment events upon a change of control, asset sale or event of loss and a customary acceleration right after an event of defaultthe Obligations) and (ixvi) except as otherwise set forth in this clause (h), such Incremental Equivalent Debt shall have terms the covenants and conditions events of default are no more restrictive (other than with respect to pricing, fees, rate floors the Applicable Rate and optional prepayment or and redemption terms) substantially similar to), or (when taken as a whole) no more favorable (as reasonably determined by the Borrower) to the lenders or holders providing such Incremental Equivalent Debt, than those applicable to under the Term B-3 Loans (except for then-existing Facilities, unless such covenants or other provisions (a) conformed (or added) in the Loan Documents, for the benefit and events of the Lenders holding Term B-3 Loans, pursuant to an amendment thereto subject solely to the reasonable satisfaction of the Administrative Agent or (b) default are applicable only to periods after the Latest Maturity Date or such covenants and events of default are, in consultation with, and subject to the consent (not to be unreasonably withheld) of, the Administrative Agent, incorporated into this Agreement (or any other applicable Loan Document) for the benefit of all existing Lenders (to the extent applicable to such Lender) without further amendment requirements (it being understood that (x) no Incremental Equivalent Debt shall include any financial maintenance covenants (including indirectly by way of a cross-default to this Agreement), but that customary cross-acceleration provisions may be included and (y) any negative covenants with respect to indebtedness, investments, liens or restricted payments shall be incurrence-based) and (vii) subject to clauses (i) through (vi) above, the other terms of such Incremental Equivalent Debt are customary for similar debt securities in light of then-prevailing market conditions at the time of issuance (provided that any such negative covenants applicable to Extendable Bridge Loans/Interim Debt may be maintenance covenants) (provided that, at the issuance or Borrower’s option, delivery of a certificate of a Responsible Officer of the Borrower delivered to the Incremental Notes Arranger in good faith at least five Business Days prior to the incurrence of such Incremental Equivalent Debt) , together with a reasonably detailed description of the material terms and conditions of such Incremental Equivalent Debt or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirement set forth in this clause (b), shall be current market conclusive evidence that such terms for and conditions satisfy such type requirement unless the Incremental Notes Arranger provides notice to the Borrower of its objection during such five Business Day period (including a reasonable description of the basis upon which it objects) and provided, further, that if the terms of the Incremental Equivalent Debt are substantially identical to the Senior Notes, the conditions in this clause (as reasonably determined in good faith b) shall be deemed to be satisfied). Notwithstanding the foregoing, the conditions precedent to each such increase shall be agreed to by the Lenders providing such increase and the Borrower). It is understood that Incremental Equivalent Debt may be incurred under either clause (i)(A) or clause (i)(B) of the immediately preceding sentence as selected by the Borrower in its sole discretion, including by designating any portion of Any Incremental Equivalent Debt in excess the form of an secured Term Loans (other than Extendable Bridge Loans/Interim Debt) denominated in Dollars that is incurred on or prior to the date that is twelve months after the Closing Date, the All-in Yield payable by the Borrower applicable to such Incremental Equivalent Debt shall be determined by the Borrower and the lenders providing such Incremental Equivalent Debt and shall not be more than 50 basis points higher than the corresponding All-in Yield payable by the Borrower for the 2019 Refinancing Term Loans, unless the All-in Yield with respect to the 2019 Refinancing Term Loans is increased to the amount permitted necessary so that the difference between the All-in Yield with respect to such Incremental Equivalent Debt and the corresponding All-in Yield on the 2019 Refinancing Term Loans is equal to 50 basis points.
(c) The Lenders hereby authorize the Incremental Notes Arranger (and the Lenders hereby authorize the Incremental Notes Arranger to execute and deliver such amendments) to enter into amendments to this Agreement and the other Loan Documents with the Borrower as may be necessary in order to secure any Incremental Equivalent Debt with the Collateral and/or to make such technical amendments as may be necessary or appropriate in the reasonable opinion of the Incremental Notes Arranger and the Borrower in connection with the issuance of such Incremental Equivalent Debt, in each case on terms consistent with this Section 2.15. If the Incremental Notes Arranger is not the Administrative Agent, the actions authorized to be incurred under taken by the Incremental Notes Arranger herein shall be done in consultation with the Administrative Agent and, with respect to applicable documentation (including amendments to this Agreement and the other Loan Documents), any comments to such clause (i)(A) at documentation reasonably requested by the time of such incurrence as incurred under such clause (i)(B)Administrative Agent shall be reflected therein.
Appears in 1 contract
Sources: Credit Agreement (Allison Transmission Holdings Inc)
Incremental Equivalent Debt. (a) The Borrower may, upon notice to the Administrative Agent, at or any time or Guarantor may from time to time after the Closing Date, issue, incur or otherwise obtain Indebtedness of the Borrower (and any Permitted Refinancing thereof) in respect of issue one or more series of senior secured, senior unsecured, senior subordinated or subordinated notes notes, loans or loans Extendable Bridge Loans/Interim Debt (which may be unsecured or notes, loans and/or Extendable Bridge Loans/Interim Debt, if secured on a junior lien basis or, in the case of notes only, a pari passu basis with the Obligations under Term Loans and Revolving Credit Loans required to be are secured on a first lien basis), in each case issued in a public offering, Rule 144A or other private placement or bridge in lieu of “equal and ratable” basis with the foregoing, or senior or subordinated mezzanine Indebtedness (which may be in Liens securing the form of loans or notes and limited to being unsecured Obligations or secured solely on a junior lien basis)“junior” basis with the Liens securing the Obligations) and guaranteed only by Loan Parties or entities who become Loan Parties (such notes, in each caseloans and/or Extendable Bridge Loans/Interim Debt, that are issued or made in lieu of Incremental Revolving Credit Commitments and/or Incremental Term Commitments (the collectively, “Incremental Equivalent Debt”) in an amount not to exceed the sum of (A) the Cash-Capped Incremental Facility, (B) the Ratio-Based Incremental Facility and (C) the Prepayment-Based Incremental Facility (in each case, at the time of issuance); provided that (i) (A) no Event of Default would exist after giving Pro Forma Effect to both any such request, subject to Section 1.02(i), and (ii) any such issuance of Incremental Equivalent Debt shall be in a minimum amount of the lesser of (x) the issuance $20,000,000 (or incurrence of such Incremental Equivalent Debt (assuming a borrowing of the maximum credit thereunderequivalent amount) and (y) the entire amount that may be requested under this Section 2.15; provided, further, that any Specified Transactions consummated in connection therewith, (1) if such New Loan Commitments established pursuant to Section 2.14 and Incremental Equivalent Debt ranks pari passu in right issued pursuant to this Section 2.15, (A) will count, first, to reduce the amount available under Prepayment-Based Incremental Facilities, second, to reduce the amount available under the Ratio-Based Incremental Facilities (to the extent permitted by the pro forma calculation of security with the Obligations under Term Loans and Revolving Credit Loans that are secured on a first lien basis, the Consolidated First Lien Net Leverage Ratio does not exceed 5.002.50:1.00required) and, third, to reduce the maximum amount under the Cash-Capped Incremental Facilities, (2B) if such Incremental Equivalent Debt ranks junior in right of security with the Obligations pursuant to this Section 2.15 may be incurred under the Term Loans and Revolving Credit Loans that are secured on a first lien basisRatio-Based Incremental Facility, the Secured Net Leverage Ratio does not exceed 6.254.20: 1.00 Cash-Capped Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction by first calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts utilized pursuant to the Ratio-Based Incremental Facility or the Cash-Capped Incremental Facility), then calculating the incurrence under the Ratio-Based Incremental Facility (without inclusion of any amounts utilized pursuant to the Cash-Capped Incremental Facility) and then calculating the incurrence under the Cash-Capped Incremental Facility and (3C) if the Borrower may redesignate all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility as having been incurred under the Ratio-Based Incremental Facility so long as, at the time of such Incremental Equivalent Debt is unsecuredredesignation, the Total Net Leverage Ratio does not exceed 6.254.20: 1.00 or (B) together with such Incremental Equivalent Debt, Borrower would be permitted to incur the aggregate principal amount of Indebtedness being so redesignated under the Ratio-Based Incremental Equivalent Debt incurred or issued under this clause Facility (B) and Incremental Term Loans made and Incremental Revolving Credit Commitments established under Section 2.14(d)(iii)(B) (plus the Second Lien Incremental Usage Amount) does not exceed $85,000,000 (provided, that such amount shall not be reduced by the Term B-2 Loans, Additional Commitments (as defined in Amendment No. 1) or the 2016 Second Lien Incremental Term Loan (as defined in Amendment No.1)), following the Amendment No. 3 Effective Date, $42,600,000 plus the principal amount of any voluntary prepayments of Term Loans made after the Amendment No. 3 Effective Date (to the extent not made with the proceeds of Indebtedness (other than the incurrence of Revolving Credit Loans or extensions of credit under any other revolving credit or similar facility)) plus in the case of any Incremental Equivalent Debt incurred or established after the Amendment No. 3 Effective Date that effectively extends the Maturity Date or any other maturity date with respect to any Class of Loans or Commitments hereunder, an amount equal to the portion of the relevant Class of Loans or Commitments that will be replaced by such Incremental Commitments plus (iv)in the case of any Incremental Equivalent Debt incurred or established after the Amendment No. 3 Effective Date that effectively replaces any Revolving Credit Commitment terminated in accordance with Section 3.07, an amount equal to the relevant terminated Revolving Credit Commitment (andwhich, for the avoidance of doubt, shall have the effect of increasing the Cash-Capped Incremental Facility by the amount under of such redesignated Indebtedness). The Borrower, after consultation with the Administrative Agent, may appoint any Person that is not an Affiliate of the Borrower as arranger of such Incremental Equivalent Debt (such Person (who may be the Administrative Agent, if it so agrees), the “Incremental Equivalent Debt Arranger”).
(b) As a condition precedent to the issuance of any Incremental Equivalent Debt pursuant to this clause Section 2.15, (i) shall not be reduced by the increase in the Initial Revolving Credit Commitments occurring on the Amendment No. 3 Effective Date), (ii) such Incremental Equivalent Debt shall not be subject to any Guarantee guaranteed by any Person other than that is not a Loan Party, (iii) if such Incremental Equivalent Debt is secured, the obligations in respect thereof Party or that does not become a Loan Party and shall not be secured by any Lien a lien on any asset assets of Holdings, a Loan Party that is not part of the Borrower or any Restricted Subsidiary other than any asset constituting Collateral, (ivii) no Default or Event of Default shall have occurred and be continuing or would exist immediately after giving effect to such incurrence, (v) if such Incremental Equivalent Debt is secured, the security agreements and other collateral documents relating to such Incremental Equivalent Debt shall be substantially similar to the Collateral Documents (with such differences as are reasonably satisfactory to extent secured by the Administrative Agent)Collateral, (vi) if such Incremental Equivalent Debt is (a) secured on a pari passu basis with the Obligations under Term Loans and Revolving Credit Loans that are secured on a first lien basis, then such Incremental Equivalent Debt shall be subject to a First Lien Intercreditor Agreement, (b) secured on a junior basis with the Obligations under Term Loans and Revolving Credit Loans intercreditor arrangements that are secured on a first lien basis, then such Incremental Equivalent Debt shall be subject to the Second Lien Intercreditor Agreement or other lien subordination and intercreditor arrangement reasonably satisfactory to the Borrower and Incremental Notes Arranger and, if such Incremental Notes Arranger is not the Administrative Agent or (c) unsecured and subordinated to Agent, the Obligations, then such Incremental Equivalent Debt shall be subject to a Subordination Agreement (or, alternatively, terms in the definitive documentation for such Incremental Equivalent Debt substantially similar to those in such applicable agreement, as agreed by the Borrower and Administrative Agent), (viiiii) such Incremental Equivalent Debt shall have a final maturity date which is no earlier than the then Latest Maturity Date and a Weighted Average Life to Maturity which is equal to or greater than Date, (iv) the Weighted Average Life to Maturity of such Incremental Equivalent Debt shall not (A) be shorter than the remaining Weighted Average Life to Maturity of any then-existing Term B-3 LoansLoan Tranche, or (B) to the extent unsecured, be subject to any amortization prior to the final maturity thereof, or be subject to any mandatory redemption or prepayment provisions or rights (except (x) customary assets sale, event of loss or similar event or change of control provisions and customary acceleration rights after an event of default, (viiiy) special mandatory redemptions in connection with customary escrow arrangements or (z) so called “AHYDO” payments, (v) such Incremental Equivalent Debt (other than any Extendable Bridge Loans/Interim Debt) shall not be subject to any mandatory redemption or prepayment provisions or rights (except to the extent any such mandatory redemption or prepayment is required to be applied pro rata to the Term Loans required to be and other Indebtedness that is secured on a first lien pari passu basis and except with respect to customary “AHYDO catch-up payments”, offers to repurchase and prepayment events upon a change of control, asset sale or event of loss and a customary acceleration right after an event of defaultthe Obligations) and (ixvi) except as otherwise set forth in this clause (h), such Incremental Equivalent Debt shall have terms the covenants and conditions events of default are no more restrictive (other than with respect to pricing, fees, rate floors the Applicable Rate and optional prepayment or and redemption terms) substantially similar to), or (when taken as a whole) no more favorable (as reasonably determined by the Borrower) to the lenders or holders providing such Incremental Equivalent Debt, than those applicable to under the Term B-3 Loans (except for then-existing Facilities, unless such covenants or other provisions (a) conformed (or added) in the Loan Documents, for the benefit and events of the Lenders holding Term B-3 Loans, pursuant to an amendment thereto subject solely to the reasonable satisfaction of the Administrative Agent or (b) default are applicable only to periods after the Latest Maturity Date or such covenants and events of default are, in consultation with, and subject to the consent (not to be unreasonably withheld) of, the Administrative Agent, incorporated into this Agreement (or any other applicable Loan Document) for the benefit of all existing Lenders (to the extent applicable to such Lender) without further amendment requirements (it being understood that (x) no Incremental Equivalent Debt shall include any financial maintenance covenants (including indirectly by way of a cross-default to this Agreement), but that customary cross-acceleration provisions may be included and (y) any negative covenants with respect to indebtedness, investments, liens or restricted payments shall be incurrence-based) and (vii) subject to clauses (i) through (vi) above, the other terms of such Incremental Equivalent Debt are customary for similar debt securities in light of then-prevailing market conditions at the time of issuance (provided that any such negative covenants applicable to Extendable Bridge Loans/Interim Debt may be maintenance covenants) (provided that, at the issuance or Borrower’s option, delivery of a certificate of a Responsible Officer of the Borrower delivered to the Incremental Notes Arranger in good faith at least five Business Days prior to the incurrence of such Incremental Equivalent Debt) , together with a reasonably detailed description of the material terms and conditions of such Incremental Equivalent Debt or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirement set forth in this clause (b), shall be current market conclusive evidence that such terms for and conditions satisfy such type requirement unless the Incremental Notes Arranger provides notice to the Borrower of its objection during such five Business Day period (including a reasonable description of the basis upon which it objects) and provided, further, that if the terms of the Incremental Equivalent Debt are substantially identical to the Senior Notes, the conditions in this clause (as reasonably determined in good faith b) shall be deemed to be satisfied). Notwithstanding the foregoing, the conditions precedent to each such increase shall be agreed to by the Lenders providing such increase and the Borrower). It is understood that Incremental Equivalent Debt may be incurred under either clause (i)(A) or clause (i)(B) of the immediately preceding sentence as selected by the Borrower in its sole discretion, including by designating any portion of Any Incremental Equivalent Debt in excess the form of an secured Term Loans (other than Extendable Bridge Loans/Interim Debt) denominated in Dollars that is incurred on or prior to the date that is twelve months after the ClosingAmendment No. 4 Effective Date, the All-in Yield payable by the Borrower applicable to such Incremental Equivalent Debt shall be determined by the Borrower and the lenders providing such Incremental Equivalent Debt and shall not be more than 50 basis points higher than the corresponding All-in Yield payable by the Borrower for the 2019 Refinancing2024 Term Loans, unless the All-in Yield with respect to the 2019 Refinancing2024 Term Loans is increased to the amount permitted necessary so that the difference between the All-in Yield with respect to such Incremental Equivalent Debt and the corresponding All-in Yield on the 2019 Refinancing2024 Term Loans is equal to 50 basis points.
(c) The Lenders hereby authorize the Incremental Notes Arranger (and the Lenders hereby authorize the Incremental Notes Arranger to execute and deliver such amendments) to enter into amendments to this Agreement and the other Loan Documents with the Borrower as may be necessary in order to secure any Incremental Equivalent Debt with the Collateral and/or to make such technical amendments as may be necessary or appropriate in the reasonable opinion of the Incremental Notes Arranger and the Borrower in connection with the issuance of such Incremental Equivalent Debt, in each case on terms consistent with this Section 2.15. If the Incremental Notes Arranger is not the Administrative Agent, the actions authorized to be incurred under taken by the Incremental Notes Arranger herein shall be done in consultation with the Administrative Agent and, with respect to applicable documentation (including amendments to this Agreement and the other Loan Documents), any comments to such clause (i)(A) at documentation reasonably requested by the time of such incurrence as incurred under such clause (i)(B)Administrative Agent shall be reflected therein.
Appears in 1 contract
Sources: Credit Agreement (Allison Transmission Holdings Inc)
Incremental Equivalent Debt. The Borrower may, upon notice to may utilize the Administrative Agent, at any time or from time to time after the Closing Date, issue, incur or otherwise obtain Indebtedness of the Borrower (and any Permitted Refinancing thereof) Available Incremental Amount in respect of one or more series of senior or subordinated unsecured notes or term loans (which may be unsecured or senior secured on a first lien notes or term loans or senior secured junior lien basis or(as compared to the Liens securing the Secured Obligations) term loans, in each case, if secured, that will be secured by Liens on the case of notes only, Collateral on a pari passu or junior priority basis (as applicable) with the Obligations under Term Loans Liens on Collateral securing the Secured Obligations, and Revolving Credit Loans required to be secured on a first lien basis), in each case issued in a public offering, Rule 144A or other private placement or bridge in lieu of the foregoingloan origination pursuant to an indenture, credit agreement or senior or subordinated mezzanine Indebtedness (which may be in the form of loans or notes and limited to being unsecured or secured solely on a junior lien basis)otherwise, in each casean aggregate amount not to exceed, that are issued or made in lieu together with the aggregate amount of Incremental all Revolving Credit Commitments and/or Commitment Increases and all Incremental Term Commitments Loans, the Available Incremental Amount (the “Incremental Equivalent Debt”); provided that such Incremental Equivalent Debt (i) does not mature earlier than the Latest Term Loan Maturity Date (A) after giving Pro Forma Effect to both (x) as determined as of the issuance or date of incurrence of such Incremental Equivalent Debt (assuming Debt), or have a borrowing shorter weighted average life to maturity than the weighted average life to maturity of the maximum credit thereunder) and (y) any Specified Transactions consummated in connection therewith, (1) if such Incremental Equivalent Debt ranks pari passu in right of security with the Obligations under Term Loans and Revolving Credit Loans that are secured on a first lien basisCommitments, the Consolidated First Lien Net Leverage Ratio does not exceed 5.002.50:1.00, (2) if such Incremental Equivalent Debt ranks junior in right of security with the Obligations under the Term Loans or any Incremental Facility outstanding at such time, (ii) has terms and Revolving Credit Loans that are secured on a first lien basisconditions (other than pricing (including interest rates, rate floors or original issue discount) and fees and, solely with respect to any term loans, amortization, prepayment premiums, and as otherwise explicitly set forth in this Agreement) no more restrictive than those under the Secured Net Leverage Ratio does not exceed 6.254.20: 1.00 and credit facilities provided for herein (3) if such Incremental Equivalent Debt is unsecured, except for covenants or other provisions applicable only to periods after the Total Net Leverage Ratio does not exceed 6.254.20: 1.00 or Latest Maturity Date (B) together with as determined as of the date of incurrence of such Incremental Equivalent Debt, the aggregate principal amount of Incremental Equivalent Debt incurred or issued under this clause (B) and Incremental Term Loans made and Incremental Revolving Credit Commitments established under Section 2.14(d)(iii)(B) (plus the Second Lien Incremental Usage Amount) does not exceed $85,000,000 (provided, that such amount shall not be reduced by the Term B-2 Loans, Additional Commitments (as defined in Amendment No. 1) or the 2016 Second Lien Incremental Term Loan (as defined in Amendment No.1)), following the Amendment No. 3 Effective Date, $42,600,000 plus the principal amount of any voluntary prepayments of Term Loans made after the Amendment No. 3 Effective Date (to the extent not made with the proceeds of Indebtedness (other than the incurrence of Revolving Credit Loans or extensions of credit under any other revolving credit or similar facility)) plus in the case of any Incremental Equivalent Debt incurred or established after the Amendment No. 3 Effective Date that effectively extends the Maturity Date or any other maturity date with respect to any Class of Loans or Commitments hereunder, an amount equal to the portion of the relevant Class of Loans or Commitments that will be replaced by such Incremental Commitments plus (iv)in the case of any Incremental Equivalent Debt incurred or established after the Amendment No. 3 Effective Date that effectively replaces any Revolving Credit Commitment terminated in accordance with Section 3.07, an amount equal to the relevant terminated Revolving Credit Commitment (and, for the avoidance of doubt, the amount under this clause (i) shall not be reduced by the increase in the Initial Revolving Credit Commitments occurring on the Amendment No. 3 Effective Date), (ii) such Incremental Equivalent Debt shall not be subject to any Guarantee by any Person other than a Loan Party, (iii) if such does not require mandatory prepayments to be made except to the extent required to be applied no worse than pro rata to the credit facilities provided for herein and any pari passu secured Incremental Equivalent Debt is (provided that any term loans constituting Incremental Equivalent Debt may be subject to an excess cash flow sweep which may be shared on a pari passu basis with any term loan facility hereunder), (iv) to the extent secured, the obligations in respect thereof shall not be secured by any Lien on any asset of Holdingsthat does not also secure the existing credit facilities hereunder, or to the Borrower or extent guaranteed, shall not be guaranteed by any Restricted Subsidiary Person other than any asset constituting Collateral, (iv) no Default or Event of Default shall have occurred and be continuing or would exist immediately after giving effect to such incurrencethe Subsidiary Guarantors, (v) if such Incremental Equivalent Debt is to the extent secured, the security agreements and other collateral documents relating to such Incremental Equivalent Debt shall be substantially similar to the Collateral Documents (with such differences as are reasonably satisfactory to the Administrative Agent), (vi) if such Incremental Equivalent Debt is (a) secured on a pari passu basis with the Obligations under Term Loans and Revolving Credit Loans that are secured on a first lien basis, then such Incremental Equivalent Debt shall be subject to a First Lien Intercreditor Agreement, (b) secured on a junior basis with the Obligations under Term Loans and Revolving Credit Loans that are secured on a first lien basis, then such Incremental Equivalent Debt shall be subject to the Second Lien Intercreditor Agreement or other lien subordination and customary intercreditor arrangement arrangements reasonably satisfactory to the Borrower and the Administrative Agent or and (cvi) unsecured and subordinated after giving effect to the Obligations, then any such Incremental Equivalent Debt on a Pro Forma Basis, the Borrower is in compliance with the financial covenants set forth in Section 6.11 recomputed as of the last day of the most recently ended Reference Period. For the avoidance of doubt, Incremental Equivalent Debt incurred pursuant to this Section 2.10(e) the proceeds of which are to be used to consummate any Limited Condition Transaction shall be subject to a Subordination Agreement (or, alternatively, terms in the definitive documentation for such Incremental Equivalent Debt substantially similar to those in such applicable agreement, as agreed by the Borrower and Administrative Agent), (vii) such Incremental Equivalent Debt shall have a final maturity date which is no earlier than the then Maturity Date and a Weighted Average Life to Maturity which is equal to or greater than the Weighted Average Life to Maturity of the Term B-3 Loans, (viii) such Incremental Equivalent Debt shall not be subject to any mandatory redemption or prepayment provisions or rights (except to the extent any such mandatory redemption or prepayment is required to be applied pro rata to the Term Loans required to be secured on a first lien basis and except with respect to customary “AHYDO catch-up payments”, offers to repurchase and prepayment events upon a change of control, asset sale or event of loss and a customary acceleration right after an event of default) and (ix) except as otherwise set forth in this clause (h), such Incremental Equivalent Debt shall have terms and conditions (other than with respect to pricing, fees, rate floors and optional prepayment or redemption terms) substantially similar to, or (taken as a whole) no more favorable (as reasonably determined by the Borrower) to the lenders or holders providing such Incremental Equivalent Debt, than those applicable to the Term B-3 Loans (except for covenants or other provisions (a) conformed (or added) in the Loan Documents, for the benefit of the Lenders holding Term B-3 Loans, pursuant to an amendment thereto subject solely to the reasonable satisfaction of the Administrative Agent or (b) applicable only to periods after the Latest Maturity Date at the time of the issuance or incurrence of such Incremental Equivalent Debt) or such terms and conditions shall be current market terms for such type of Incremental Equivalent Debt (as reasonably determined in good faith by the Borrower). It is understood that Incremental Equivalent Debt may be incurred under either clause (i)(A) or clause (i)(B) of the immediately preceding sentence as selected by the Borrower in its sole discretion, including by designating any portion of Incremental Equivalent Debt in excess of an amount permitted to be incurred under such clause (i)(A) at the time of such incurrence as incurred under such clause (i)(BSection 1.04(a).
Appears in 1 contract
Sources: Credit Agreement (Eventbrite, Inc.)
Incremental Equivalent Debt. (a) The Borrower and the Subsidiary Guarantors may, from time to time, upon notice by the Borrower to the Administrative Agent, at any time specifying in reasonable detail the proposed terms thereof, issue or from time to time after the Closing Date, issue, incur or otherwise obtain Indebtedness of the Borrower (and any Permitted Refinancing thereof) in respect of one or more series of senior unsecured notes, senior secured first lien or junior lien notes or subordinated notes or loans (which may be unsecured or secured on a junior lien basis or, in the case of notes only, a pari passu basis with the Obligations under Term Loans and Revolving Credit Loans required to be secured on a first lien basis)notes, in each case issued in a public offering, Rule 144A or other private placement or customary bridge facility in lieu respect of the foregoingforegoing (and any Registered Equivalent Notes issued in exchange therefor), junior lien secured or senior unsecured or subordinated loans or junior lien secured or unsecured mezzanine Indebtedness that, if secured, will (which may be i) in the form case of loans any such Indebtedness constituting notes issued in a public offering, Rule 144A or notes other private placement, be secured by the Collateral on a pari passu or junior basis with the Obligations and limited to being unsecured or (ii) in the case of any such Indebtedness constituting loans, shall be secured by the Collateral solely on a junior lien basis)basis with the Obligations, in each case, and that are issued or made in lieu of Incremental Revolving Credit Commitments and/or an Incremental Term Commitments Facility pursuant to an indenture, a note purchase agreement, loan or credit agreement or otherwise (the such Indebtedness, collectively, “Incremental Equivalent Debt”)) in a principal amount not to exceed the Incremental Amount at the time of incurrence; provided that (i) (A) after giving Pro Forma Effect to both (x) the issuance or incurrence of such Incremental Equivalent Debt (assuming a borrowing of the maximum credit thereunder) and (y) any Specified Transactions consummated in connection therewith, (1) if such Incremental Equivalent Debt ranks pari passu in right of security with the Obligations under Term Loans and Revolving Credit Loans that are secured on a first lien basis, the Consolidated First Lien Net Leverage Ratio does not exceed 5.002.50:1.00, (2) if such Incremental Equivalent Debt ranks junior in right of security with the Obligations under the Term Loans and Revolving Credit Loans that are secured on a first lien basis, the Secured Net Leverage Ratio does not exceed 6.254.20: 1.00 and (3) if such Incremental Equivalent Debt is unsecured, the Total Net Leverage Ratio does not exceed 6.254.20: 1.00 or (B) together with such Incremental Equivalent Debt, the aggregate principal amount of Incremental Equivalent Debt incurred or issued under this clause (B) and Incremental Term Loans made and Incremental Revolving Credit Commitments established under Section 2.14(d)(iii)(B) (plus the Second Lien Incremental Usage Amount) does not exceed $85,000,000 (provided, that such amount shall not be reduced by the Term B-2 Loans, Additional Commitments (as defined in Amendment No. 1) or the 2016 Second Lien Incremental Term Loan (as defined in Amendment No.1)), following the Amendment No. 3 Effective Date, $42,600,000 plus the principal amount of any voluntary prepayments of Term Loans made after the Amendment No. 3 Effective Date (to the extent not made with the proceeds of Indebtedness (other than the incurrence of Revolving Credit Loans or extensions of credit under any other revolving credit or similar facility)) plus in the case of any Incremental Equivalent Debt incurred or established after that is secured by the Amendment No. 3 Effective Date that effectively extends Collateral on a junior basis with the Maturity Date or any other maturity date with respect to any Class Obligations, is subordinated in right of Loans or Commitments hereunder, an amount equal payment to the portion Obligations (whether or not such Indebtedness is secured) or is unsecured, the First Lien Net Leverage Ratio test set forth in clause (c) of the relevant Class definition of Loans or Commitments that will Incremental Amount shall be deemed to be replaced by with the requirement that, after giving Pro Forma Effect to the incurrence of such Incremental Commitments plus Equivalent Debt (iv)in including the use of proceeds thereof and, in the case of any such Incremental Equivalent Debt incurred structured as a revolving or established after “delayed-draw” or similar facility, assuming a full utilization thereof and, in each case, with the Amendment No. 3 Effective Date that effectively replaces proceeds of any Revolving Credit Commitment terminated in accordance with Section 3.07, an amount equal to such Incremental Equivalent Debt being excluded from the relevant terminated Revolving Credit Commitment determination of Unrestricted Cash and Cash Equivalents for such calculation (andbut, for the avoidance of doubt, giving effect to any repayment, repurchase or other reduction of Indebtedness effected with such proceeds)), the amount under Total Net Leverage Ratio would not exceed 4.00:1.00.
(b) As a condition precedent to the issuance or incurrence of any Incremental Equivalent Debt pursuant to this clause Section 2.20, (i) the Borrower shall not deliver to the Administrative Agent a certificate dated as of the date of issuance or incurrence of the Incremental Equivalent Debt signed by a Responsible Officer of the Borrower certifying that the conditions set forth in this Section 2.20(b) have been satisfied and, if the Borrower is relying on clause (c) of the definition of Incremental Amount for purposes of incurring all or any portion of such Incremental Equivalent Debt, that the Borrower is in Pro Forma Compliance with the First Lien Net Leverage Ratio requirement set forth in such provision (or any applicable Senior Secured Net Leverage Ratio or Total Net Leverage Ratio required to be reduced by tested in lieu thereof pursuant to the increase proviso set forth in the Initial Revolving Credit Commitments occurring on the Amendment No. 3 Effective Dateimmediately preceding clause (a)), (ii) such Incremental Equivalent Debt shall not be borrowed by or subject to any Guarantee by any Person other than a Loan Partythe Borrower and the Guarantors, (iii) if to the extent such Incremental Equivalent Debt is secured, (x) the obligations security agreements relating to such Incremental Equivalent Debt shall be not materially more burdensome to the Borrower, taken as a whole, than the Collateral Documents (with such exceptions as are reasonably satisfactory to the Administrative Agent), (y) such Incremental Equivalent Debt shall be secured (if at all) either on a pari passu basis with the Obligations or on a junior basis to the Liens that secure the Obligations, in respect thereof each case solely on all or some of the Collateral that secures the Facilities and (z) such Incremental Equivalent Debt shall not be subject to (A) in the case of Incremental Equivalent Debt that will be secured by any Lien the Collateral on any asset of Holdingsa pari passu basis with the Obligations, the Borrower Pari Passu Intercreditor Agreement or any Restricted Subsidiary other than any asset constituting Collateralan Other Intercreditor Agreement (and the “Additional First Lien Representative” (as defined in the Second Lien Intercreditor Agreement) of such Incremental Equivalent Debt shall become a party to the Second Lien Intercreditor Agreement) and (B) in the case of Incremental Equivalent Debt that will be secured by the Collateral on a junior priority basis to the Obligations, a Second Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable, (iv) (A) the final maturity of any Incremental Equivalent Debt consisting of revolving credit commitments denominated in Dollars shall be no Default earlier than the Latest Dollar Revolving Termination Date in effect at the time of incurrence and the final maturity of any Incremental Equivalent Debt consisting of revolving credit commitments denominated in a currency other than Dollars shall be no earlier than the Latest Approved Currency Revolving Termination Date in effect at the time of incurrence and (B) the final maturity of any other Incremental Equivalent Debt shall be no earlier than the Latest Term Loan Maturity Date in effect at the time of the incurrence, issuance or obtainment of such Indebtedness, (v) (A) the terms of such Indebtedness that constitutes notes do not provide for any mandatory prepayment, repurchase, redemption or sinking fund obligations prior to the Latest Term Loan Maturity Date in effect at the time of the incurrence, issuance or obtainment of such Indebtedness (other than customary prepayments, repurchases or redemptions or offers to prepay, redeem or repurchase or mandatory prepayments upon a change of control, asset sale or casualty or condemnation event, and customary acceleration rights after an event of default), (B) any such Indebtedness that constitutes loans may participate on a pro rata basis or less than pro rata basis (but, except as otherwise expressly permitted by this Agreement, not on a greater than pro rata basis) in any prepayments of the Initial Term Facility pursuant to Section 2.05(a) and 2.05(b) (other than prepayments of the Initial Term Facility pursuant to Section 2.05(b)(iii)(x)) and (C) the terms of any Incremental Equivalent Debt (other than revolving credit commitments) have a Weighted Average Life to Maturity that is no shorter than the then-longest remaining Weighted Average Life to Maturity of the Tranches of Term Loans outstanding at the time of incurrence, (vi) the terms and conditions of such Indebtedness (excluding, for the avoidance of doubt, interest rates (including through fixed interest rates), interest margins, rate floors, fees, funding discounts, original issue discounts and prepayment or redemption premiums and terms) are, when taken as a whole, are (x) substantially identical to or (y) not materially more favorable to the lenders or holders providing such Indebtedness than those applicable to the Facilities when taken as a whole (other than covenants (including financial maintenance covenants) or other provisions applicable only to periods after the Latest Maturity Date in effect at the time of incurrence, issuance or obtainment of such Indebtedness) (provided that a certificate of a Responsible Officer of the Borrower delivered to the Administrative Agent at the time of the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirement of this clause (vi)(y) shall be conclusive evidence that such terms and conditions satisfy such requirement) or are otherwise reasonably acceptable to the Administrative Agent, (vii) the pricing applicable to the Incremental Equivalent Debt shall be determined by the Borrower and the applicable lenders providing such Incremental Equivalent Debt, (viii) no Event of Default shall have occurred and be continuing or would exist immediately result after giving effect to such incurrenceIncremental Equivalent Debt (including the use of the proceeds thereof) (provided that, (v) if such Incremental Equivalent Debt is securedbeing incurred in connection with a Limited Condition Acquisition, the security agreements and other collateral documents relating to Lenders providing such Incremental Equivalent Debt shall be substantially similar may agree to limit the Collateral Documents (with such differences as are reasonably satisfactory foregoing condition to the Administrative Agentprovide that no Event of Default under Sections 8.01(a), (vif) or (g) shall have occurred and be continuing or would result after giving effect to the incurrence of such Incremental Equivalent Debt), (ix) after giving effect to the making or issuance of any Incremental Equivalent Debt (including the use of the proceeds thereof), the conditions set forth in Section 4.02(a) shall be satisfied (provided that, if such Incremental Equivalent Debt is (a) secured on being incurred in connection with a pari passu basis with Limited Condition Acquisition, the Obligations under Term Loans and Revolving Credit Loans that are secured on a first lien basis, then Lenders providing such Incremental Equivalent Debt shall may agree to limit the foregoing condition to relate solely to the accuracy of the Specified Representations and the Acquisition Agreement Representations, and to be subject to a First Lien Intercreditor Agreementcustomary limitations on collateral-related requirements (in each case, modified as necessary for such Limited Condition Acquisition)) and (bx) secured on a junior basis with the Obligations under Term Loans and Revolving Credit Loans that are secured on a first lien basis, then after giving effect to such Incremental Equivalent Debt (including the use of the proceeds thereof), the Borrower shall be subject to in Pro Forma Compliance with the Second Lien Intercreditor Agreement or other lien subordination and intercreditor arrangement satisfactory to the Borrower and the Administrative Agent or (c) unsecured and subordinated to the Obligations, then such Incremental Equivalent Debt shall be subject to a Subordination Agreement (or, alternatively, terms financial covenant contained in the definitive documentation for such Incremental Equivalent Debt substantially similar to those in such applicable agreement, as agreed by the Borrower and Administrative Agent), (vii) such Incremental Equivalent Debt shall have a final maturity date which is no earlier than the then Maturity Date and a Weighted Average Life to Maturity which is equal to or greater than the Weighted Average Life to Maturity of the Term B-3 Loans, (viii) such Incremental Equivalent Debt shall not be subject to any mandatory redemption or prepayment provisions or rights (except to the extent any such mandatory redemption or prepayment is required to be applied pro rata to the Term Loans required to be secured on a first lien basis and except with respect to customary “AHYDO catch-up payments”, offers to repurchase and prepayment events upon a change of control, asset sale or event of loss and a customary acceleration right after an event of default) and (ix) except as otherwise set forth in this clause (h), such Incremental Equivalent Debt shall have terms and conditions (other than with respect to pricing, fees, rate floors and optional prepayment or redemption terms) substantially similar to, or (taken as a whole) no more favorable (as reasonably determined by the Borrower) to the lenders or holders providing such Incremental Equivalent Debt, than those applicable to the Term B-3 Loans (except for covenants or other provisions (a) conformed (or added) in the Loan Documents, for the benefit of the Lenders holding Term B-3 Loans, pursuant to an amendment thereto subject solely to the reasonable satisfaction of the Administrative Agent or (b) applicable only to periods after the Latest Maturity Date at the time of the issuance or incurrence of such Incremental Equivalent Debt) or such terms and conditions shall be current market terms for such type of Incremental Equivalent Debt (as reasonably determined in good faith by the Borrower). It is understood that Incremental Equivalent Debt may be incurred under either clause (i)(A) or clause (i)(B) of the immediately preceding sentence as selected by the Borrower in its sole discretion, including by designating any portion of Incremental Equivalent Debt in excess of an amount permitted to be incurred under such clause (i)(A) at the time of such incurrence as incurred under such clause (i)(BSection 7.10(a).
Appears in 1 contract
Sources: Credit Agreement (Keyw Holding Corp)
Incremental Equivalent Debt. The Borrower may, upon notice to the Administrative Agent, at any time or from time to time after the Closing Date, issue, incur or otherwise obtain Indebtedness of the Borrower (and any Permitted Refinancing thereof) in respect of one or more series of senior or subordinated notes or loans (which may be unsecured or secured on a junior lien basis or, in the case of notes only, a pari passu basis with the Obligations under Term Loans and Revolving Credit Loans required to be secured on a first lien basis), in each case issued in a public offering, Rule 144A or other private placement or bridge in lieu of the foregoing, or senior or subordinated mezzanine Indebtedness (which may be in the form of loans or notes and limited to being unsecured or secured solely on a junior lien basis), in each case, that are issued or made in lieu of Incremental Revolving Credit Commitments and/or Incremental Term Commitments (the “Incremental Equivalent Debt”); provided that (i) (A) after giving Pro Forma Effect to both (x) the issuance or incurrence of such Incremental Equivalent Debt (assuming a borrowing of the maximum credit thereunder) and (y) any Specified Transactions consummated in connection therewith, (1) if such Incremental Equivalent Debt ranks pari passu in right of security with the Obligations under Term Loans and Revolving Credit Loans that are secured on a first lien basis, the Consolidated First Lien Net Leverage Ratio does not exceed 5.002.50:1.005.00:1.00, (2) if such Incremental Equivalent Debt ranks junior in right of security with the Obligations under the Term Loans and Revolving Credit Loans that are secured on a first lien basis, the Secured Net Leverage Ratio does not exceed 6.254.20: 1.00 and (3) if such Incremental Equivalent Debt is unsecured, the Total Net Leverage Ratio does not exceed 6.254.20: 1.00 or (B) together with such Incremental Equivalent Debt, the aggregate principal amount of Incremental Equivalent Debt incurred or issued under this clause (B) and Incremental Term Loans made and Incremental Revolving Credit Commitments established under Section 2.14(d)(iii)(B) (plus the Second Lien Incremental Usage Amount) does not exceed $85,000,000 (provided, that such amount shall not be reduced by the Term B-2 Loans, Additional Commitments (as defined in Amendment No. 1) or the 2016 Second Lien Incremental Term Loan (as defined in Amendment No.1)), following the Amendment No. 3 Effective Date, $42,600,000 plus the principal amount of any voluntary prepayments of Term Loans made after the Amendment No. 3 Effective Date (to the extent not made with the proceeds of Indebtedness (other than the incurrence of Revolving Credit Loans or extensions of credit under any other revolving credit or similar facility)) plus in the case of any Incremental Equivalent Debt incurred or established after the Amendment No. 3 Effective Date that effectively extends the Maturity Date or any other maturity date with respect to any Class of Loans or Commitments hereunder, an amount equal to the portion of the relevant Class of Loans or Commitments that will be replaced by such Incremental Commitments plus (iv)in the case of any Incremental Equivalent Debt incurred or established after the Amendment No. 3 Effective Date that effectively replaces any Revolving Credit Commitment terminated in accordance with Section 3.07, an amount equal to the relevant terminated Revolving Credit Commitment (and, for the avoidance of doubt, the amount under this clause (i) shall not be reduced by the increase in the Initial Revolving Credit Commitments occurring on the Amendment No. 3 Effective Date), (ii) such Incremental Equivalent Debt shall not be subject to any Guarantee by any Person other than a Loan Party, (iii) if such Incremental Equivalent Debt is secured, the obligations in respect thereof shall not be secured by any Lien on any asset of Holdings, the Borrower or any Restricted Subsidiary other than any asset constituting Collateral, (iv) no Default or Event of Default shall have occurred and be continuing or would exist immediately after giving effect to such incurrence, (v) if such Incremental Equivalent Debt is secured, the security agreements and other collateral documents relating to such Incremental Equivalent Debt shall be substantially similar to the Collateral Documents (with such differences as are reasonably satisfactory to the Administrative Agent), (vi) if such Incremental Equivalent Debt is (a) secured on a pari passu basis with the Obligations under Term Loans and Revolving Credit Loans that are secured on a first lien basis, then such Incremental Equivalent Debt shall be subject to a First Lien Intercreditor Agreement, (b) secured on a junior basis with the Obligations under Term Loans and Revolving Credit Loans that are secured on a first lien basis, then such Incremental Equivalent Debt shall be subject to the Second Lien Intercreditor Agreement or other lien subordination and intercreditor arrangement satisfactory to the Borrower and the Administrative Agent or (c) unsecured and subordinated to the Obligations, then such Incremental Equivalent Debt shall be subject to a Subordination Agreement (or, alternatively, terms in the definitive documentation for such Incremental Equivalent Debt substantially similar to those in such applicable agreement, as agreed by the Borrower and Administrative Agent), (vii) such Incremental Equivalent Debt shall have a final maturity date which is no earlier than the then Maturity Date and a Weighted Average Life to Maturity which is equal to or greater than the Weighted Average Life to Maturity of the Term B-3 Loans, (viii) such Incremental Equivalent Debt shall not be subject to any mandatory redemption or prepayment provisions or rights (except to the extent any such mandatory redemption or prepayment is required to be applied pro rata to the Term Loans required to be secured on a first lien basis and except with respect to customary “AHYDO catch-up payments”, offers to repurchase and prepayment events upon a change of control, asset sale or event of loss and a customary acceleration right after an event of default) and (ix) except as otherwise set forth in this clause (h), such Incremental Equivalent Debt shall have terms and conditions (other than with respect to pricing, fees, rate floors and optional prepayment or redemption terms) substantially similar to, or (taken as a whole) no more favorable (as reasonably determined by the Borrower) to the lenders or holders providing such Incremental Equivalent Debt, than those applicable to the Term B-3 Loans (except for covenants or other provisions (a) conformed (or added) in the Loan Documents, for the benefit of the Lenders holding Term B-3 Loans, pursuant to an amendment thereto subject solely to the reasonable satisfaction of the Administrative Agent or (b) applicable only to periods after the Latest Maturity Date at the time of the issuance or incurrence of such Incremental Equivalent Debt) or such terms and conditions shall be current market terms for such type of Incremental Equivalent Debt (as reasonably determined in good faith by the Borrower). It is understood that Incremental Equivalent Debt may be incurred under either clause (i)(A) or clause (i)(B) of the immediately preceding sentence as selected by the Borrower in its sole discretion, including by designating any portion of Incremental Equivalent Debt in excess of an amount permitted to be incurred under such clause (i)(A) at the time of such incurrence as incurred under such clause (i)(B).exceed
Appears in 1 contract
Incremental Equivalent Debt. The Borrower may, upon notice to the Administrative Agent, at any time or from time to time after the Closing Seventh Amendment Effective Date, issue, incur or otherwise obtain Indebtedness of the Borrower (and or any Permitted Refinancing thereof) in respect of one or more series of senior or subordinated notes or loans (which may be unsecured or unsecured, subordinated in right of payment to the Obligations, secured on a junior lien basis or, in the case of notes only, a pari passu basis with the Obligations under Term Loans and Revolving Credit Loans required to be secured on a first lien basis or secured on a junior lien basis with the Obligations under the Term Loans and Revolving Credit Loans secured on a first lien basis), in each case issued in a public offering, Rule 144A or other private placement or bridge in lieu of the foregoing, or senior or subordinated mezzanine Indebtedness (which may be in the form of loans or notes and limited to being unsecured or secured solely on a junior lien basis), in each case, that are issued or made in lieu of Incremental Revolving Credit Commitments and/or Commitments, Incremental Term Commitments Loans and/or Increased Term Loans (the “Incremental Equivalent Debt”); provided that (i) (A) after giving Pro Forma Effect to both (x) the issuance or incurrence of such Incremental Equivalent Debt (assuming a borrowing of the maximum credit thereunder) and (y) any Specified Transactions consummated in connection therewith, (1) if such Incremental Equivalent Debt ranks pari passu in right of security with the Obligations under Term Loans and Revolving Credit Loans that are secured on a first lien basis, the Consolidated First Lien Net Leverage Ratio does not exceed 5.002.50:1.00, (2) if such Incremental Equivalent Debt ranks junior in right of security with the Obligations under the Term Loans and Revolving Credit Loans that are secured on a first lien basis, the Secured Net Leverage Ratio does not exceed 6.254.20: 1.00 and (3) if such Incremental Equivalent Debt is unsecured, the Total Net Leverage Ratio does not exceed 6.254.20: 1.00 or (B) together with such Incremental Equivalent Debt, the aggregate principal amount of Incremental Equivalent Debt incurred or issued under this clause (Bf) and Incremental Term Loans made and Incremental Revolving Credit Commitments established under Section 2.14(d)(iii)(B) (plus the Second Lien Incremental Usage Amount2.14(a) does not exceed $85,000,000 (provided, that such amount shall not be reduced by the Term B-2 Loans, Additional Commitments (as defined in Amendment No. 1) or the 2016 Second Lien Available Incremental Term Loan (as defined in Amendment No.1)), following the Amendment No. 3 Effective Date, $42,600,000 plus the principal amount of any voluntary prepayments of Term Loans made after the Amendment No. 3 Effective Date (to the extent not made with the proceeds of Indebtedness (other than the incurrence of Revolving Credit Loans or extensions of credit under any other revolving credit or similar facility)) plus in the case of any Incremental Equivalent Debt incurred or established after the Amendment No. 3 Effective Date that effectively extends the Maturity Date or any other maturity date with respect to any Class of Loans or Commitments hereunder, an amount equal to the portion of the relevant Class of Loans or Commitments that will be replaced by such Incremental Commitments plus (iv)in the case of any Incremental Equivalent Debt incurred or established after the Amendment No. 3 Effective Date that effectively replaces any Revolving Credit Commitment terminated in accordance with Section 3.07, an amount equal to the relevant terminated Revolving Credit Commitment (and, for the avoidance of doubt, the amount under this clause (i) shall not be reduced by the increase in the Initial Revolving Credit Commitments occurring on the Amendment No. 3 Effective Date)Amount, (ii) such Incremental Equivalent Debt shall not be subject to any Guarantee by any Person other than a Loan Party, (iii) if such Incremental Equivalent Debt is secured, the obligations in respect thereof shall not be secured by any Lien on any asset of Holdings, the Borrower or any Restricted Subsidiary other than any asset constituting Collateral, (iv) no Default or Event of Default shall have occurred and be continuing or would exist immediately after giving effect to such incurrence, (v) if such Incremental Equivalent Debt is secured, the security agreements and other collateral documents relating to such Incremental Equivalent Debt shall be substantially similar to the Collateral Documents (with such differences as are reasonably satisfactory to the Administrative Agent), (vi) if such Incremental Equivalent Debt is (a) secured on a pari passu basis with the Obligations under Term Loans and Revolving Credit Loans that are secured on a first lien basis, then such Incremental Equivalent Debt shall be subject to a First Lien Intercreditor Agreement, (b) secured on a junior basis with the Obligations under Term Loans and Revolving Credit Loans that are secured on a first lien basis, then such Incremental Equivalent Debt shall be subject to the Second Lien Intercreditor Agreement or other lien subordination and intercreditor arrangement satisfactory to the Borrower and the Administrative Agent or (c) unsecured and subordinated to the Obligations, then such Incremental Equivalent Debt shall be subject to a Subordination Agreement (or, alternatively, terms in the definitive documentation for such Incremental Equivalent Debt substantially similar to those in such applicable agreement, as agreed by the Borrower and Administrative Agent), (vii) such Incremental Equivalent Debt shall have a final maturity date which is no earlier than the then Maturity Date and a Weighted Average Life to Maturity which is equal to or greater than the Weighted Average Life to Maturity of the Term B-3 Loans, (viii) such Incremental Equivalent Debt shall not be subject to any mandatory redemption or prepayment provisions or rights (except to the extent any such mandatory redemption or prepayment is required to be applied pro rata to the Term Loans required to be secured on a first lien basis and except with respect to customary “AHYDO catch-up payments”, offers to repurchase and prepayment events upon a change of control, asset sale or event of loss and a customary acceleration right after an event of default) and (ix) except as otherwise set forth in this clause (h), such Incremental Equivalent Debt shall have terms and conditions (other than with respect to pricing, fees, rate floors and optional prepayment or redemption terms) substantially similar to, or (taken as a whole) no more favorable (as reasonably determined by the Borrower) to the lenders or holders providing such Incremental Equivalent Debt, than those applicable to the Term B-3 Loans (except for covenants or other provisions (a) conformed (or added) in the Loan Documents, for the benefit of the Lenders holding Term B-3 Loans, pursuant to an amendment thereto subject solely to the reasonable satisfaction of the Administrative Agent or (b) applicable only to periods after the Latest Maturity Date at the time of the issuance or incurrence of such Incremental Equivalent Debt) or such terms and conditions shall be current market terms for such type of Incremental Equivalent Debt (as reasonably determined in good faith by the Borrower). It is understood that Incremental Equivalent Debt may be incurred under either clause (i)(A) or clause (i)(B) of the immediately preceding sentence as selected by the Borrower in its sole discretion, including by designating any portion of Incremental Equivalent Debt in excess of an amount permitted to be incurred under such clause (i)(A) at the time of such incurrence as incurred under such clause (i)(B).be
Appears in 1 contract
Sources: Credit Agreement (West Corp)
Incremental Equivalent Debt. The Borrower Borrowers may, upon notice by the Lead Borrower to the Administrative Agent, at any time or from time to time after the Closing Date, issue, incur or otherwise obtain Indebtedness of the Borrower (and any Permitted Refinancing thereof) Borrowers in respect of one or more series of senior or subordinated notes or loans (which may be unsecured or secured on a junior lien basis or, in the case of notes only, or a pari passu basis with the Obligations under Term B Loans and Revolving Credit Loans required to be secured on a first lien basisLoans), and, in each the case of notes, issued in a public offering, Rule 144A or other private placement or bridge in lieu of the foregoing, or senior or subordinated mezzanine Indebtedness (which may be in the form of loans or notes and limited to being unsecured or secured solely on a junior lien basis), in each case, that are issued or made in lieu of Incremental Revolving Credit Commitments and/or Incremental Term Commitments (the “Incremental Equivalent Debt”); provided that (i) (A) after giving Pro Forma Effect to both (x) the issuance or incurrence of such Incremental Equivalent Debt (assuming a borrowing of the maximum credit available thereunder) and (y) any Specified Transactions consummated in connection therewith, (1) if such Incremental Equivalent Debt ranks pari passu in right of security with the Obligations under Term B Loans and Revolving Credit Loans that are secured on a first lien basisLoans, the Consolidated First Lien Net Leverage Ratio does not exceed 5.002.50:1.00, 2.00:1.00 and (2) if such Incremental Equivalent Debt ranks junior in right of security with the Obligations under the Term B Loans and Revolving Credit Loans that are secured on a first lien basisLoans, the Secured Net Leverage Ratio does not exceed 6.254.20: 1.00 and (3) if such Incremental Equivalent Debt is unsecured, the Total Net Leverage Ratio does not exceed 6.254.20: 1.00 2.00:1.00 or (B) together with such Incremental Equivalent Debt, the aggregate principal amount of Incremental Equivalent Debt incurred or issued under this clause (B) and Incremental Term Loans made and Incremental Revolving Credit Commitments established under Section 2.14(d)(iii)(B) (plus the Second Lien Incremental Usage Amount2.16(d)(iii)(B) does not exceed the sum of (a) $85,000,000 385,000,000 plus (provided, that such amount shall not be reduced by the Term B-2 Loans, Additional Commitments (as defined in Amendment No. 1b) or the 2016 Second Lien Incremental Term Loan (as defined in Amendment No.1)), following the Amendment No. 3 Effective Date, $42,600,000 plus the principal amount of any voluntary prepayments of Term Loans made after the Amendment No. 3 Effective Date (other than to the extent not made with the proceeds of Indebtedness (other than the incurrence of Revolving Credit Loans or extensions of credit under any other revolving credit or similar facility)) plus in the case of any Incremental Equivalent Debt incurred or established after the Amendment No. 3 Effective Date that effectively extends the Maturity Date or any other maturity date with respect to any Class of Loans or Commitments hereunder, an amount equal to the portion of the relevant Class of Loans or Commitments that will be replaced by such Incremental Commitments plus (iv)in the case of any Incremental Equivalent Debt incurred or established after the Amendment No. 3 Effective Date that effectively replaces any Revolving Credit Commitment terminated in accordance with Section 3.07, an amount equal to the relevant terminated Revolving Credit Commitment (and, for the avoidance of doubt, the amount under this clause (i) shall not be reduced by the increase in the Initial Revolving Credit Commitments occurring on the Amendment No. 3 Effective Date), (ii) such Incremental Equivalent Debt shall not be subject to any Guarantee by any no Person other than a Loan PartyParty shall provide a Guarantee or otherwise be an obligor with respect to such Incremental Equivalent Debt, (iii) if such Incremental Equivalent Debt is secured, the obligations in respect thereof shall not be secured by any Lien on any asset of Holdings, the Borrower or any Restricted Subsidiary other than any asset constituting the Collateral, (iv) no Default or Event of Default shall have occurred and be continuing or would exist immediately after giving effect to such incurrence, (v) if such Incremental Equivalent Debt is secured, the security agreements and other collateral documents relating to such Incremental Equivalent Debt shall be substantially similar to the Collateral Documents (with such differences as are reasonably satisfactory to the Administrative Agent), (vi) if such Incremental 101 Equivalent Debt is (a) secured on a pari passu basis with the Obligations under Term B Loans and Revolving Credit Loans that are secured on a first lien basisLoans, then such Incremental Equivalent Debt shall be subject to a new or then-existing First Lien Intercreditor Agreement, (b) secured Agreement to which a Senior Representative acting on a junior basis with behalf of the Obligations under Term Loans and Revolving Credit Loans that are secured on a first lien basis, then holders of such Incremental Equivalent Debt shall be become a party or otherwise subject to the Second Lien Intercreditor Agreement or other another lien subordination and or intercreditor arrangement satisfactory to the Borrower and the Administrative Agent or (cb) unsecured secured on a junior basis with the Term B Loans and subordinated to the ObligationsRevolving Credit Loans, then such Incremental Equivalent Debt shall be subject to a Subordination new or then-existing Second Lien Intercreditor Agreement (or, alternatively, terms in to which a Senior Representative of the definitive documentation for holders of such Incremental Equivalent Debt substantially similar shall become a party or otherwise subject to those in such applicable agreement, as agreed by another lien subordination and intercreditor arrangement satisfactory to the Lead Borrower and the Administrative Agent), (vii) such Incremental Equivalent Debt shall have a final maturity date which is no earlier than the then Maturity Date and a Weighted Average Life to Maturity which is equal to or greater no shorter than the Weighted Average Life to Maturity of the Term B-3 B Loans, (viii) such Incremental Equivalent Debt shall not be subject to any mandatory redemption or prepayment provisions or rights (except to the extent any such mandatory redemption or prepayment is required to be applied pro rata (but not greater than pro rata) to the Term Loans required to be secured on a first lien basis and basis, except with respect to customary “AHYDO catch-catch up payments”, ” and except with respect to customary offers to repurchase and prepayment events upon a change of control, asset sale or event of loss and a customary acceleration right after an event of default; provided that any such Incremental Equivalent Debt that is junior in right of payment or security with respect to the Term B Loans may only participate in any such mandatory repurchases and prepayments with respect to customary offers to repurchase and prepayment events upon an asset sale or event of loss on a junior basis to the Term B Loans and any then-existing Term Loans that are pari passu in right of payment and security with the Term B Loans), (ix) the provisions set forth in Section 2.16(e)(iii) shall apply to any Incremental Equivalent Debt in the form of loans that ranks pari passu in right of payment and security with the Term B Loans and Revolving Credit Loans as if such Incremental Equivalent Debt were a Class of Incremental Term Loans that is pari passu in right of payment and security with the Term B Loans and (ixx) except as otherwise set forth in this clause (h), such Incremental Equivalent Debt shall have terms and conditions (other than with respect to pricing, fees, rate floors and optional prepayment or redemption terms) substantially similar to, or (taken as a whole) no more favorable (as reasonably determined by the Lead Borrower) to the lenders or holders providing such Incremental Equivalent Debt, than those applicable to the Term B-3 B Loans (except for covenants or other provisions (a) conformed (or added) in the Loan Documents, for the benefit of the Lenders holding Term B-3 B Loans, pursuant to an amendment thereto subject solely to the reasonable satisfaction of the Administrative Agent or (b) applicable only to periods after the Latest Maturity Date at the time of the issuance or incurrence of such Incremental Equivalent Debt) or such terms and conditions shall be current market terms for such type of Incremental Equivalent Debt (as reasonably determined in good faith by the Lead Borrower). It is understood that Incremental Equivalent Debt may be incurred under either clause (i)(A) or clause (i)(B) of the immediately preceding sentence as selected by the Lead Borrower in its sole discretion, including by designating any portion of Incremental Equivalent Debt in excess of an amount permitted to be incurred under such clause (i)(A) at the time of such incurrence as incurred under such clause (i)(B).. (i) Any portion of any Incremental Term Loans, Incremental Term Commitments, Incremental Revolving Credit Loans and Incremental Revolving Credit Commitments incurred under Section 2.16(d)(iii)(B) or Incremental Equivalent Debt incurred under Section 2.16(h)(i)(B) may be reclassified, as the Lead Borrower elects from time to time, as incurred under Section 2.16(d)(iii)(A) or Section 2.16(h)(i)(A), respectively, if such portion of such Incremental Term Loans, Incremental Term Commitments, Incremental Revolving Credit Loans, Incremental Revolving Credit Commitments or Incremental Equivalent Debt could at such time be incurred under Section 2.16(d)(iii)(A) or Section 2.16(h)(i)(A). Upon making any such election under this Section 2.16(i), the Borrower shall deliver a certificate of a Responsible Officer to the Administrative Agent demonstrating compliance on a Pro 102
Appears in 1 contract
Sources: Credit Agreement (Trinseo S.A.)
Incremental Equivalent Debt. (a) The Borrower and the Subsidiary Guarantors may, from time to time, upon notice by the Borrower to the Administrative Agent, at any time specifying in reasonable detail the proposed terms thereof, issue or from time to time after the Closing Date, issue, incur or otherwise obtain Indebtedness of the Borrower (and any Permitted Refinancing thereof) in respect of one or more series of senior unsecured notes, senior secured first lien or junior lien notes or subordinated notes or loans (which may be unsecured or secured on a junior lien basis or, in the case of notes only, a pari passu basis with the Obligations under Term Loans and Revolving Credit Loans required to be secured on a first lien basis)notes, in each case issued in a public offering, Rule 144A or other private placement or customary bridge facility in lieu respect of the foregoingforegoing (and any Registered Equivalent Notes issued in exchange therefor), senior secured first lien, junior lien secured or senior unsecured or subordinated loans or junior lien secured or unsecured mezzanine Indebtedness that, if secured, will (which may be i) in the form case of loans any such Indebtedness constituting notes issued in a public offering, Rule 144A or notes other private placement, be secured by the Collateral on a pari passu or junior basis with the Obligations and limited to being unsecured or (ii) in the case of any such Indebtedness constituting loans, shall be secured by the Collateral solely on a junior lien basis)basis with the Obligations, in each case, and that are issued or made in lieu of Incremental Revolving Credit Commitments and/or an Incremental Term Commitments Facility pursuant to an indenture, a note purchase agreement, loan or credit agreement or otherwise (the such Indebtedness, collectively, “Incremental Equivalent Debt”)) in a principal amount not to exceed the Incremental Amount at the time of incurrence; provided that (i) (A) after giving Pro Forma Effect to both (x) the issuance or incurrence of such Incremental Equivalent Debt (assuming a borrowing of the maximum credit thereunder) and (y) any Specified Transactions consummated in connection therewith, (1) if such Incremental Equivalent Debt ranks pari passu in right of security with the Obligations under Term Loans and Revolving Credit Loans that are secured on a first lien basis, the Consolidated First Lien Net Leverage Ratio does not exceed 5.002.50:1.00, (2) if such Incremental Equivalent Debt ranks junior in right of security with the Obligations under the Term Loans and Revolving Credit Loans that are secured on a first lien basis, the Secured Net Leverage Ratio does not exceed 6.254.20: 1.00 and (3) if such Incremental Equivalent Debt is unsecured, the Total Net Leverage Ratio does not exceed 6.254.20: 1.00 or (B) together with such Incremental Equivalent Debt, the aggregate principal amount of Incremental Equivalent Debt incurred or issued under this clause (B) and Incremental Term Loans made and Incremental Revolving Credit Commitments established under Section 2.14(d)(iii)(B) (plus the Second Lien Incremental Usage Amount) does not exceed $85,000,000 (provided, that such amount shall not be reduced by the Term B-2 Loans, Additional Commitments (as defined in Amendment No. 1) or the 2016 Second Lien Incremental Term Loan (as defined in Amendment No.1)), following the Amendment No. 3 Effective Date, $42,600,000 plus the principal amount of any voluntary prepayments of Term Loans made after the Amendment No. 3 Effective Date (to the extent not made with the proceeds of Indebtedness (other than the incurrence of Revolving Credit Loans or extensions of credit under any other revolving credit or similar facility)) plus in the case of any Incremental Equivalent Debt incurred or established after that is secured by the Amendment No. 3 Effective Date that effectively extends Collateral on a junior basis with the Maturity Date or any other maturity date with respect to any Class Obligations, is subordinated in right of Loans or Commitments hereunder, an amount equal payment to the portion Obligations (whether or not such Indebtedness is secured) or is unsecured, the First Lien Net Leverage Ratio test set forth in clause (c) of the relevant Class definition of Loans or Commitments that will Incremental Amount shall be deemed to be replaced by with the requirement that, after giving Pro Forma Effect to the incurrence of such Incremental Commitments plus Equivalent Debt (iv)in including the use of proceeds thereof and, in the case of any such Incremental Equivalent Debt incurred structured as a revolving or established after “delayed-draw” or similar facility, assuming a full utilization thereof and, in each case, with the Amendment No. 3 Effective Date that effectively replaces proceeds of any Revolving Credit Commitment terminated in accordance with Section 3.07, an amount equal to such Incremental Equivalent Debt being excluded from the relevant terminated Revolving Credit Commitment determination of Unrestricted Cash and Cash Equivalents for such calculation (andbut, for the avoidance of doubt, giving effect to any repayment, repurchase or other reduction of Indebtedness effected with such proceeds)), the amount under Total Net Leverage Ratio would not exceed 5.00:1.00.
(b) As a condition precedent to the issuance or incurrence of any Incremental Equivalent Debt pursuant to this clause Section 2.20, (i) the Borrower shall not deliver to the Administrative Agent a certificate dated as of the date of issuance or incurrence of the Incremental Equivalent Debt signed by a Responsible Officer of the Borrower certifying that the conditions set forth in this Section 2.20(b) have been satisfied and, if the Borrower is relying on clause (c) of the definition of Incremental Amount for purposes of incurring all or any portion of such Incremental Equivalent Debt, that the Borrower is in Pro Forma Compliance with the First Lien Net Leverage Ratio requirement set forth in such provision (or any applicable Senior Secured Net Leverage Ratio or Total Net Leverage Ratio required to be reduced by tested in lieu thereof pursuant to the increase proviso set forth in the Initial Revolving Credit Commitments occurring on the Amendment No. 3 Effective Dateimmediately preceding clause (a)), (ii) such Incremental Equivalent Debt shall not be borrowed by or subject to any Guarantee by any Person other than a Loan Partythe Borrower and the Guarantors, (iii) if to the extent such Incremental Equivalent Debt is secured, (x) the obligations security agreements relating to such Incremental Equivalent Debt shall be not materially more burdensome to the Borrower, taken as a whole, than the Collateral Documents (with such exceptions as are reasonably satisfactory to the Administrative Agent), (y) such Incremental Equivalent Debt shall be secured (if at all) either on a pari passu basis with the Obligations or on a junior basis to the Liens that secure the Obligations, in respect thereof each case solely on all or some of the Collateral that secures the Facilities and (z) such Incremental Equivalent Debt shall not be subject to (A) in the case of Incremental Equivalent Debt that will be secured by any the Collateral on a pari passu basis with the Obligations, a customary pari passu intercreditor agreement (and the representative named therein of such Incremental Equivalent Debt shall become a party to the Second Lien Intercreditor Agreement and (B) in the case of Incremental Equivalent Debt that will be secured by the Collateral on any asset of Holdingsa junior priority basis to the Obligations, the Borrower Second Lien Intercreditor Agreement or any Restricted Subsidiary other than any asset constituting Collateralan Other Intercreditor Agreement, as applicable, (iv) (A) the final maturity of any Incremental Equivalent Debt consisting of revolving credit commitments shall be no Default earlier than the Latest Revolving Termination Date in effect at the time of incurrence and (B) the final maturity of any other Incremental Equivalent Debt shall be no earlier than the Latest Term Loan Maturity Date in effect at the time of the incurrence, issuance or obtainment of such Indebtedness, (v) (A) the terms of such Indebtedness that constitutes notes do not provide for any mandatory prepayment, repurchase, redemption or sinking fund obligations prior to the Latest Term Loan Maturity Date in effect at the time of the incurrence, issuance or obtainment of such Indebtedness (other than customary prepayments, repurchases or redemptions or offers to prepay, redeem or repurchase or mandatory prepayments upon a change of control, asset sale or casualty or condemnation event, and customary acceleration rights after an event of default), (B) any such Indebtedness that constitutes loans may participate on a pro rata basis or less than pro rata basis (but, except as otherwise expressly permitted by this Agreement, not on a greater than pro rata basis) in any prepayments of the Initial Term Facility pursuant to Section 2.05(a) and 2.05(b) (other than prepayments of the Initial Term Facility pursuant to Section 2.05(b)(iii)(x)) and (C) the terms of any Incremental Equivalent Debt (other than revolving credit commitments) have a Weighted Average Life to Maturity that is no shorter than the then-longest remaining Weighted Average Life to Maturity of the Tranches of Term Loans outstanding at the time of incurrence, (vi) the terms and conditions of such Indebtedness (excluding, for the avoidance of doubt, interest rates (including through fixed interest rates), interest margins, rate floors, fees, funding discounts, original issue discounts and prepayment or redemption premiums and terms) are, when taken as a whole, are (x) substantially identical to or (y) not materially more favorable to the lenders or holders providing such Indebtedness than those applicable to the Facilities when taken as a whole (other than covenants (including financial maintenance covenants) or other provisions applicable only to periods after the Latest Maturity Date in effect at the time of incurrence, issuance or obtainment of such Indebtedness) (provided that a certificate of a Responsible Officer of the Borrower delivered to the Administrative Agent at the time of the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirement of this clause (vi)(y) shall be conclusive evidence that such terms and conditions satisfy such requirement) or are otherwise reasonably acceptable to the Administrative Agent (provided that, the Administrative Agent’s consent shall not be required with respect to covenants (including any financial maintenance covenant added for the benefit of the lenders providing such Credit Agreement Refinancing Indebtedness) and other provisions, so long as such covenants or other provisions are also added for the benefit of the Lenders of all then outstanding Loans), (vii) the pricing applicable to the Incremental Equivalent Debt shall be determined by the Borrower and the applicable lenders providing such Incremental Equivalent Debt (provided, that, any such Incremental Equivalent Debt that is incurred in the form of term loans that are secured on a pari passu basis with the Obligations shall be required to satisfy the requirements of Section 2.16(e)(vi) (assuming, for such purposes, that such Incremental Equivalent Debt is being incurred in the form of Incremental Term Loans)), (viii) no Event of Default shall have occurred and be continuing or would exist immediately result after giving effect to such incurrenceIncremental Equivalent Debt (including the use of the proceeds thereof) (provided that, (v) if such Incremental Equivalent Debt is securedbeing incurred in connection with a Limited Condition Acquisition, the security agreements Borrower and other collateral documents relating to the Lenders providing such Incremental Equivalent Debt shall be substantially similar may, pursuant to Section 1.09(b), agree to limit the Collateral Documents foregoing condition to provide that (with x) no Event of Default has occurred and is continuing as of the date the definitive agreement for such differences as are reasonably satisfactory to the Administrative AgentLimited Condition Acquisition is entered into and (y) no Event of Default under Sections 8.01(a), (vif) or (g) shall have occurred and be continuing on the date of the consummation of such Limited Condition Acquisition or would result after giving effect thereto and to the incurrence of such Incremental Equivalent Debt), (ix) after giving effect to the making or issuance of any Incremental Equivalent Debt (including the use of the proceeds thereof), the conditions set forth in Section 4.02(a) shall be satisfied (provided that, if such Incremental Equivalent Debt is (a) secured on being incurred in connection with a pari passu basis with Limited Condition Acquisition, the Obligations under Term Loans and Revolving Credit Loans that are secured on a first lien basis, then Lenders providing such Incremental Equivalent Debt shall may agree to limit the foregoing condition to relate solely to the accuracy of the Specified Representations and the Acquisition Agreement Representations, and to be subject to a First Lien Intercreditor Agreementcustomary limitations on collateral-related requirements (in each case, modified as necessary for such Limited Condition Acquisition)) and (bx) secured on a junior basis with the Obligations under Term Loans and Revolving Credit Loans that are secured on a first lien basis, then after giving effect to such Incremental Equivalent Debt (including the use of the proceeds thereof), the Borrower shall be subject in Pro Forma Compliance with the financial covenant contained in Section 7.10.
(c) The Lenders hereby authorize the Administrative Agent to the Second Lien Intercreditor Agreement or other lien subordination enter into amendments (which may be executed and intercreditor arrangement satisfactory to delivered solely by the Borrower and the Administrative Agent Agent) to this Agreement and the other Loan Documents with the Borrower as may be necessary or (c) unsecured and subordinated appropriate in order to the Obligations, then such secure any Incremental Equivalent Debt shall with the Collateral of the Loan Parties and/or to make such technical amendments as may be subject to a Subordination Agreement (or, alternatively, terms necessary or appropriate in the definitive documentation for such Incremental Equivalent Debt substantially similar to those in such applicable agreement, as agreed by the Borrower and Administrative Agent), (vii) such Incremental Equivalent Debt shall have a final maturity date which is no earlier than the then Maturity Date and a Weighted Average Life to Maturity which is equal to or greater than the Weighted Average Life to Maturity of the Term B-3 Loans, (viii) such Incremental Equivalent Debt shall not be subject to any mandatory redemption or prepayment provisions or rights (except to the extent any such mandatory redemption or prepayment is required to be applied pro rata to the Term Loans required to be secured on a first lien basis and except with respect to customary “AHYDO catch-up payments”, offers to repurchase and prepayment events upon a change of control, asset sale or event of loss and a customary acceleration right after an event of default) and (ix) except as otherwise set forth in this clause (h), such Incremental Equivalent Debt shall have terms and conditions (other than with respect to pricing, fees, rate floors and optional prepayment or redemption terms) substantially similar to, or (taken as a whole) no more favorable (as reasonably determined by the Borrower) to the lenders or holders providing such Incremental Equivalent Debt, than those applicable to the Term B-3 Loans (except for covenants or other provisions (a) conformed (or added) in the Loan Documents, for the benefit of the Lenders holding Term B-3 Loans, pursuant to an amendment thereto subject solely to the reasonable satisfaction opinion of the Administrative Agent or (b) applicable only to periods after and the Latest Maturity Date at the time of Borrower in connection with the issuance or incurrence of such Incremental Equivalent Debt) or such , in each case in accordance with the terms and conditions shall be current market terms for such type of Incremental Equivalent Debt (as reasonably determined set forth in good faith by the Borrower). It is understood that Incremental Equivalent Debt may be incurred under either clause (i)(A) or clause (i)(B) of the immediately preceding sentence as selected by the Borrower in its sole discretion, including by designating any portion of Incremental Equivalent Debt in excess of an amount permitted to be incurred under such clause (i)(A) at the time of such incurrence as incurred under such clause (i)(B)this Section 2.20.
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