Incremental Equivalent Debt. (a) The Borrower may from time to time, upon written notice by the Borrower to the Administrative Agent, specifying in reasonable detail the proposed terms thereof, issue or incur Indebtedness in respect of one or more series of senior unsecured notes, senior secured pari passu or junior lien notes or subordinated notes, in each case issued in a public offering, Rule 144A or other private placement or customary bridge facility in respect of the foregoing (and any Registered Equivalent Notes issued in exchange therefor), junior lien or unsecured loans or junior lien secured or unsecured mezzanine Indebtedness 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 an Incremental Term Facility pursuant to an indenture, a note purchase agreement, loan or credit agreement or otherwise (such Indebtedness, collectively, “Incremental Equivalent Debt”) in a principal amount not to exceed the Incremental Amount at the time of incurrence. (b) As a condition precedent to the issuance or incurrence of any Incremental Equivalent Debt pursuant to this Section 2.17, (i) the Borrower shall deliver to the Administrative Agent a certificate of the Borrower 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 precedent set forth in the following clauses (ii) through (viii) have been satisfied and, if applicable, that the Borrower is in Pro Forma Compliance with the Maximum Senior Secured Net Leverage Requirement, to the extent applicable, and the financial covenant set forth in 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 Guarantor, respectively, (iii) to the extent such Incremental Equivalent Debt is secured, (x) the security agreements relating to such Incremental Equivalent Debt shall be substantially the same as the Collateral Documents (with such differences as are reasonably satisfactory to the Administrative Agent), (y) such Incremental Equivalent Debt shall be secured either on an “equal and ratable” basis with the other Facilities or on a “junior” basis to the Liens that secure the Facilities, 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 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, (iv) (A) the 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 (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
Appears in 1 contract
Samples: Credit Agreement (Visteon Corp)
Incremental Equivalent Debt. (a) The Borrower may and the Subsidiary Guarantors may, from time to time, upon written notice by the Borrower to the Administrative Agent, specifying in reasonable detail the proposed terms thereof, issue or incur Indebtedness in respect of one or more series of senior unsecured notes, senior secured pari passu or junior lien notes or subordinated notes, in each case issued in a public offering, Rule 144A or other private placement or customary bridge facility in respect of the foregoing (and any Registered Equivalent Notes issued in exchange therefor), senior secured pari passu, junior lien secured or unsecured or subordinated loans or junior lien secured or unsecured mezzanine Indebtedness that, in each case, if secured, will (i) in the case of any such Indebtedness constituting notes issued in a public offering, Rule 144A or other private placement, be secured by the Collateral on a pari passu or junior basisbasis with the Obligations and (ii) in the case of any such Indebtedness constituting loans, as applicable, shall be secured by the Collateral solely on a junior basis with the Obligations, and that are issued or made in lieu of an Incremental Term Facility pursuant to an indenture, a note purchase agreement, loan or credit agreement or otherwise (such Indebtedness, collectively, “Incremental Equivalent Debt”) in a principal amount not to exceed the Incremental Amount at the time of incurrence.
(b) As a condition precedent to the issuance or incurrence of any Incremental Equivalent Debt pursuant to this Section 2.172.20, (i) the Borrower shall deliver to the Administrative Agent a certificate of the Borrower 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 precedent set forth in the following clauses (ii) through (viiithis Section 2.20(b) have been satisfied and, if applicablethe 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 Maximum Senior Secured Total Net Leverage Requirement, to the extent applicable, and the financial covenant Ratio requirement set forth in Section 7.11such provision, (ii) such Incremental Equivalent Debt shall not be borrowed by or subject to any Guarantee by any Person other than the Borrower and a Guarantor, respectivelythe Guarantors, (iii) to the extent such Incremental Equivalent Debt is secured, (x) the security agreements relating to such Incremental Equivalent Debt shall be substantially not materially more burdensome to the same Borrower, taken as a whole, than the Collateral Documents (with such differences exceptions as are reasonably satisfactory to the Administrative Agent), (y) such Incremental Equivalent Debt shall be secured (if at all) either on an “equal and ratable” a pari passu basis with the other Facilities Obligations or on a “junior” junior basis to the Liens that secure the FacilitiesObligations, in each case solely on all or some of the Collateral that secures the Term 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 pari passu basis with the Obligations, a Pari Passu Intercreditor Agreement or an Other 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 a junior priority basis to the Obligations, the 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 shall be no earlier than the Latest Revolving Termination Date in effect at the time of incurrence [reserved] 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 ofof 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 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 Term 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 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 Term 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 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 Borrower and the Lenders providing such Incremental Equivalent Debt may, pursuant to Section 1.09(b), agree to limit the foregoing condition to provide that (x) no Event of Default has occurred and is continuing as of the date the definitive documentation for such Limited Condition Acquisition is entered into and (y) no Event of Default under Sections 8.01(a), (f) 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 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 Representations, and 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) to this Agreement and the other Loan Documents with the Borrower as may be necessary or appropriate in order to secure any Incremental Equivalent Debt with the Collateral of the Loan Parties and/or to make such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the issuance or incurrence of such Incremental Equivalent Debt, in each case in accordance with the terms set forth in this Section 2.20.
Appears in 1 contract
Incremental Equivalent Debt. (a) The Borrower may and the Subsidiary Guarantors may, from time to time, upon written notice by the Borrower to the Administrative Agent, specifying in reasonable detail the proposed terms thereof, issue or incur Indebtedness in respect of one or more series of senior unsecured notes, senior secured pari passu first lien or junior lien notes or subordinated notes, in each case issued in a public offering, Rule 144A or other private placement or customary bridge facility in respect of the foregoing (and any Registered Equivalent Notes issued in exchange therefor), senior secured first lien, junior lien secured or unsecured or subordinated loans or junior lien secured or unsecured mezzanine Indebtedness that, in each case, if secured, will (i) in the case of any such Indebtedness constituting notes issued in a public offering, Rule 144A or other private placement, be secured by the Collateral on a pari passu or junior basisbasis with the Obligations and (ii) in the case of any such Indebtedness constituting loans, as applicable, shall be secured by the Collateral solely on a junior basis with the Obligations, and that are issued or made in lieu of an Incremental Term Facility pursuant to an indenture, a note purchase agreement, loan or credit agreement or otherwise (such Indebtedness, collectively, “Incremental Equivalent Debt”) in a principal amount not to exceed the Incremental Amount at the time of incurrence; provided that in the case of any Incremental Equivalent Debt that is secured by the Collateral on a junior basis with the Obligations, is subordinated in right of payment to the 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 definition of Incremental Amount shall be deemed to be replaced with the requirement that, after giving Pro Forma Effect to the incurrence of such Incremental Equivalent Debt (including the use of proceeds thereof and, in the case of any such Incremental Equivalent Debt structured as a revolving or “delayed-draw” or similar facility, assuming a full utilization thereof and, in each case, with the proceeds of any such Incremental Equivalent Debt being excluded from the determination of Unrestricted Cash and Cash Equivalents for such calculation (but, for the avoidance of doubt, giving effect to any repayment, repurchase or other reduction of Indebtedness effected with such proceeds)), the 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 Section 2.172.20, (i) the Borrower shall deliver to the Administrative Agent a certificate of the Borrower 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 precedent set forth in the following clauses (ii) through (viiithis Section 2.20(b) have been satisfied and, if applicablethe 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 Maximum First Lien Net Leverage Ratio requirement set forth in such provision (or any applicable Senior Secured Net Leverage Requirement, Ratio or Total Net Leverage Ratio required to be tested in lieu thereof pursuant to the extent applicable, and the financial covenant proviso set forth in Section 7.11the immediately preceding clause (a)), (ii) such Incremental Equivalent Debt shall not be borrowed by or subject to any Guarantee by any Person other than the Borrower and a Guarantor, respectivelythe Guarantors, (iii) to the extent such Incremental Equivalent Debt is secured, (x) the security agreements relating to such Incremental Equivalent Debt shall be substantially not materially more burdensome to the same Borrower, taken as a whole, than the Collateral Documents (with such differences exceptions as are reasonably satisfactory to the Administrative Agent), (y) such Incremental Equivalent Debt shall be secured (if at all) either on an “equal and ratable” a pari passu basis with the other Facilities Obligations or on a “junior” junior basis to the Liens that secure the FacilitiesObligations, 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 pari passu basis with the Obligations, a Pari Passu Intercreditor Agreement or an Other 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 a junior priority basis to the Obligations, the 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 shall be no 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 ofof 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 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 Borrower and the Lenders providing such Incremental Equivalent Debt may, pursuant to Section 1.09(b), agree to limit the foregoing condition to provide that (x) no Event of Default has occurred and is continuing as of the date the definitive agreement for such Limited Condition Acquisition is entered into and (y) no Event of Default under Sections 8.01(a), (f) 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 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 Representations, and 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) to this Agreement and the other Loan Documents with the Borrower as may be necessary or appropriate in order to secure any Incremental Equivalent Debt with the Collateral of the Loan Parties and/or to make such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the issuance or incurrence of such Incremental Equivalent Debt, in each case in accordance with the terms set forth in this Section 2.20.
Appears in 1 contract
Incremental Equivalent Debt. (a) The Borrower may and the Subsidiary Guarantors may, from time to time, upon written notice by the Borrower to the Administrative Agent, specifying in reasonable detail the proposed terms thereof, issue or incur Indebtedness in respect of one or more series of senior unsecured notes, senior secured pari passu first lien or junior lien notes or subordinated notes, in each case issued in a public offering, Rule 144A or other private placement or customary bridge facility in respect of the foregoing (and any Registered Equivalent Notes issued in exchange therefor), junior lien secured or unsecured or subordinated loans or junior lien secured or unsecured mezzanine Indebtedness that, in each case, if secured, will (i) in the case of any such Indebtedness constituting notes issued in a public offering, Rule 144A or other private placement, be secured by the Collateral on a pari passu or junior basisbasis with the Obligations and (ii) in the case of any such Indebtedness constituting loans, as applicable, shall be secured by the Collateral solely on a junior basis with the Obligations, and that are issued or made in lieu of an Incremental Term Facility pursuant to an indenture, a note purchase agreement, loan or credit agreement or otherwise (such Indebtedness, collectively, “Incremental Equivalent Debt”) in a principal amount not to exceed the Incremental Amount at the time of incurrence; provided that in the case of any Incremental Equivalent Debt that is secured by the Collateral on a junior basis with the Obligations, is subordinated in right of payment to the 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 definition of Incremental Amount shall be deemed to be replaced with the requirement that, after giving Pro Forma Effect to the incurrence of such Incremental Equivalent Debt (including the use of proceeds thereof and, in the case of any such Incremental Equivalent Debt structured as a revolving or “delayed-draw” or similar facility, assuming a full utilization thereof and, in each case, with the proceeds of any such Incremental Equivalent Debt being excluded from the determination of Unrestricted Cash and Cash Equivalents for such calculation (but, for the avoidance of doubt, giving effect to any repayment, repurchase or other reduction of Indebtedness effected with such proceeds)), the 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 Section 2.172.20, (i) the Borrower shall deliver to the Administrative Agent a certificate of the Borrower 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 precedent set forth in the following clauses (ii) through (viiithis Section 2.20(b) have been satisfied and, if applicablethe 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 Maximum First Lien Net Leverage Ratio requirement set forth in such provision (or any applicable Senior Secured Net Leverage Requirement, Ratio or Total Net Leverage Ratio required to be tested in lieu thereof pursuant to the extent applicable, and the financial covenant proviso set forth in Section 7.11the immediately preceding clause (a)), (ii) such Incremental Equivalent Debt shall not be borrowed by or subject to any Guarantee by any Person other than the Borrower and a Guarantor, respectivelythe Guarantors, (iii) to the extent such Incremental Equivalent Debt is secured, (x) the security agreements relating to such Incremental Equivalent Debt shall be substantially not materially more burdensome to the same Borrower, taken as a whole, than the Collateral Documents (with such differences exceptions as are reasonably satisfactory to the Administrative Agent), (y) such Incremental Equivalent Debt shall be secured (if at all) either on an “equal and ratable” a pari passu basis with the other Facilities Obligations or on a “junior” junior basis to the Liens that secure the FacilitiesObligations, 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 pari passu basis with the Obligations, a the Pari Passu Intercreditor Agreement or an 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 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 ofof 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 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 Representations, and 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(a).
Appears in 1 contract
Samples: Credit Agreement (Keyw Holding Corp)
Incremental Equivalent Debt. (a) The Borrower may from time to time, upon written notice by the Borrower to the Administrative Agent, specifying in reasonable detail the proposed terms thereof, issue or incur Indebtedness in respect of one or more series of senior unsecured notes, senior secured pari passu or junior lien notes or subordinated notes, in each case issued in a public offering, Rule 144A or other private placement or customary bridge facility in respect of the foregoing (and any Registered Equivalent Notes issued in exchange therefor), junior lien or unsecured loans or junior lien secured or unsecured mezzanine Indebtedness 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 an Incremental Term Facility pursuant to an indenture, a note purchase agreement, loan or credit agreement or otherwise (such Indebtedness, collectively, “Incremental Equivalent Debt”) in a principal amount not to exceed the Incremental Amount at the time of incurrence.
(b) As a condition precedent to the issuance or incurrence of any Incremental Equivalent Debt pursuant to this Section 2.17, (i) the Borrower shall deliver to the Administrative Agent a certificate of the Borrower 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 precedent set forth in the following clauses (ii) through (viii) have been satisfied and, if applicable, that the Borrower is in Pro Forma Compliance with the Maximum Senior Secured Net Leverage Requirement, to the extent applicable, and the financial covenant set forth in 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 Guarantor, respectively, (iii) to the extent such Incremental Equivalent Debt is secured, (x) the security agreements relating to such Incremental Equivalent Debt shall be substantially the same as the Collateral Documents (with such differences as are reasonably satisfactory to the Administrative Agent), (y) such Incremental Equivalent Debt shall be secured either on an “equal and ratable” basis with the other Facilities or on a “junior” basis to the Liens that secure the Facilities, 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 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, (iv) (A) the 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 (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 ofMaximum
Appears in 1 contract
Samples: Credit Agreement (Visteon Corp)
Incremental Equivalent Debt. (ai) The Borrower Borrowers may from time to time, upon written notice by the Administrative Borrower to the Administrative Agent, specifying in reasonable detail the proposed terms thereof, issue or incur Indebtedness in respect of one or more series of senior unsecured notes, senior secured pari passu or junior lien notes or subordinated notes, in each case issued in a public offering, Rule 144A or other private placement or customary bridge facility in respect of the foregoing (and any Registered Equivalent Notes issued in exchange therefor), junior lien or unsecured loans or junior lien secured or unsecured mezzanine Indebtedness 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 an Incremental any New Term Facility Loans pursuant to an indenture, a note purchase agreement, loan or credit agreement or otherwise (such Indebtedness, collectively, “Incremental Equivalent Debt”) in a principal amount not to exceed the Available Incremental Amount at the time of incurrence.
(bii) As a condition precedent to the issuance or incurrence of any Incremental Equivalent Debt pursuant to this Section 2.172.23(b), (iA) the Borrower Borrowers shall deliver to the Administrative Agent a certificate of the Borrower dated as of the date of issuance or incurrence of the Incremental Equivalent Debt signed by a Responsible an Authorized Officer of the Administrative Borrower certifying that the conditions precedent set forth in the following clauses (iiB) through (viiiI) have been satisfied andsatisfied, if applicable, that the Borrower is (B) Borrowers shall be in Pro Forma Compliance pro forma compliance with the Maximum Senior Secured Net Leverage Requirement, to Financial Covenant as of the extent applicable, and last day of the financial covenant set forth Test Period most recently ended (as determined in accordance with Section 7.111.02), (iiC) such Incremental Equivalent Debt shall not be borrowed by or subject to any Guarantee Guaranty by any Person other than the Borrower Borrowers and a Guarantor, respectively, (iiiD) to the extent such Incremental Equivalent Debt is secured, (x) the security agreements relating to such Incremental Equivalent Debt shall be substantially the same as the Collateral Documents (with such differences as are reasonably satisfactory to the Administrative Agent and Collateral Agent), (y) such Incremental Equivalent Debt shall be secured either on an “equal and ratable” basis with the other Facilities Commitments or on a “junior” basis to the Liens that secure the FacilitiesCommitments, in each case solely on all or some of the Collateral that secures the Facilities Commitments 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 pari passu basis with the Obligations, a Pari Passu an Intercreditor Agreement or an Other Intercreditor Agreement in form and (B) in the case of Incremental Equivalent Debt that will be secured by the substance reasonable satisfactory to Borrowers, Administrative Agent and Collateral on a junior priority basis to the Obligations, an Other Intercreditor AgreementAgent, (iv) (AE) the 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 (B) the final maturity of any other Incremental Equivalent Debt shall be no earlier than the Latest Term Loan Maturity Date in effect applicable to Term Loans at the time of the incurrence, issuance or obtainment of such Indebtedness, (vF) (Ax) 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 applicable to Term Loans at the time of the incurrence, issuance or obtainment ofof 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) and (y) the terms of any Incremental Equivalent Debt have a Weighted Average Life to Maturity that is no shorter than the then longest remaining Weighted Average Life to Maturity of the then outstanding tranches of Term Loans outstanding at the time of incurrence, (G) if such Indebtedness is subordinated in right of payment, the Facilities shall have been designated as “Designated Senior Debt” or its equivalent in respect of such Indebtedness,
Appears in 1 contract
Samples: Credit and Guaranty Agreement (AVG Technologies N.V.)
