Incremental Equivalent Debt. The 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 Borrowers in respect of one or more series of senior or subordinated notes or loans (which may be secured on a junior lien basis or a pari passu basis with the 2018 Refinancing Term B Loans and Revolving Credit Loans), and, in the case of notes, issued in a public offering, Rule 144A or other private placement or bridge in lieu of the foregoing, 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 Term B Loans and Revolving Credit Loans, the First Lien Net Leverage Ratio does not exceed 2.00:1.00 and (2) if such Incremental Equivalent Debt ranks junior in right of security with the Term B Loans and Revolving Credit Loans, the Secured Net Leverage Ratio does not exceed 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 2.16(d)(iii)(B) does not exceed the sum of (a) $385,000,000 plus (b) the principal amount of any voluntary prepayments of Term Loans (other than to the extent 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)), (ii) no Person other than a Loan Party shall provide a Guarantee or otherwise be an obligor with respect to such Incremental Equivalent Debt, (iii) the obligations in respect thereof shall not be secured by any Lien on any asset other than the Collateral, (iv) no Event of Default shall have occurred and be continuing or would exist immediately after giving effect to such incurrence, (v) 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 Term B Loans and Revolving Credit Loans, then such Incremental Equivalent Debt shall be subject to a new or then-existing First Lien Intercreditor Agreement to which a Senior Representative acting on behalf of the holders of such Incremental Equivalent Debt shall become a party or otherwise subject to another lien subordination or intercreditor arrangement satisfactory to the Borrower and the Administrative Agent or (b) secured on a junior basis with the Term B Loans and Revolving Credit Loans, then such Incremental Equivalent Debt shall be subject to a new or then-existing Second Lien Intercreditor Agreement to which a Senior Representative of the holders of such Incremental Equivalent Debt shall become a party or otherwise subject to 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 no shorter than the Weighted Average Life to Maturity of the Term 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, except with respect to customary “AHYDO 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 (x) 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 Loans (except for covenants or other provisions (a) conformed (or added) in the Loan Documents, for the benefit of the Lenders holding Term 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 S.A.)
Incremental Equivalent Debt. The Borrowers Borrower 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 Borrowers 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 or, in the case of notes only, a pari passu basis with the 2018 Refinancing Term B Initial Loans and Revolving Credit other Loans required to be secured on a pari passu basis with the Initial Loans), and, in the each 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 Term B Loans and Revolving Credit Loansis secured, the First Lien Secured Net Leverage Ratio does not exceed 2.00:1.00 6.25:1.00 and (2) if such Incremental Equivalent Debt ranks junior in right of security with the Term B Loans and Revolving Credit Loansis unsecured, the Secured Total Net Leverage Ratio does not exceed 2.00:1.00 6.25:1.00 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 2.16(d)(iii)(B2.14(d)(iii)(B) (plus the First Lien Incremental Usage Amount) does not exceed the sum of (a) $385,000,000 85,000,000 plus (b) the principal amount of any voluntary prepayments of Term Loans (other than to the extent not made with the proceeds of Indebtedness (other than the incurrence of First Lien Revolving Credit Loans or extensions of credit under any other revolving credit or similar facility))) plus in the case of any Incremental Equivalent Debt 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 (ii) no such Incremental Equivalent Debt shall not be subject to any Guarantee by any Person other than a Loan Party shall provide a Guarantee or otherwise be an obligor with respect to such Incremental Equivalent DebtParty, (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 the 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 Term B Obligations under Initial Loans and Revolving Credit Loansother Loans required to be secured on a pari passu basis with the Initial Loans then such Incremental Equivalent Debt shall be subject to the Second Lien Intercreditor Agreement, if applicable, or a Junior Lien Intercreditor Agreement, (b) secured on a junior basis with the Obligations under Initial Loans and other Loans required to be secured on a pari passu basis with the Initial Loans then such Incremental Equivalent Debt shall be subject to a Third Lien Intercreditor Agreement or other lien subordination and intercreditor arrangement satisfactory to the Borrower and Administrative Agent or (c) unsecured and subordinated to the Obligations, then such Incremental Equivalent Debt shall be subject to a new or then-existing First Lien Intercreditor Subordination Agreement to which a Senior Representative acting on behalf of (or, alternatively, terms in the holders of definitive documentation for such Incremental Equivalent Debt shall become a party or otherwise subject substantially similar to another lien subordination or intercreditor arrangement satisfactory to those in such applicable agreement, as agreed by the Borrower and the Administrative Agent or (b) secured on a junior basis with the Term B Loans and Revolving Credit Loans, then such Incremental Equivalent Debt shall be subject to a new or then-existing Second Lien Intercreditor Agreement to which a Senior Representative of the holders of such Incremental Equivalent Debt shall become a party or otherwise subject to 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 no shorter equal to or greater than the Weighted Average Life to Maturity of the Term B Initial 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, basis and 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 (x) 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 Initial Loans (except for covenants or other provisions (a) conformed (or added) in the Loan Documents, for the benefit of the Lenders holding Term B Initial 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
Incremental Equivalent Debt. The Borrowers Borrower 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 Borrowers 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 a pari passu basis with the 2018 Refinancing Obligations under Term B Loans and Revolving Credit Loansrequired to be secured on a first lien basis), and, in the case of notes, issued in a public offering, Rule 144A or other private placement or bridge in lieu of the foregoing, 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 Term B Loans and Revolving Credit Loansis secured, the First Lien Secured Net Leverage Ratio calculated on a Pro Forma Basis does not exceed 2.00:1.00 either (I) 3.75:1.00 or (II) solely if such Incremental Equivalent Debt is incurred in connection with a Permitted Acquisition, the Secured Net Leverage Ratio immediately prior to the issuance or incurrence of such Incremental Equivalent Debt and the consummation of such Permitted Acquisition, and (2) if such Incremental Equivalent Debt ranks junior in right of security with is unsecured, either (I) (x) the Term B Loans and Revolving Credit Loans, the Secured Total Net Leverage Ratio calculated on a Pro Forma Basis does not exceed 2.00:1.00 4.25:1.00 or (y) the Consolidated Cash Interest Coverage Ratio calculated on a Pro Forma Basis is no less than 2.00:1.00, or (II) solely in the case of Incremental Equivalent Debt incurred in connection with a Permitted Acquisition, either (x) the Total Net Leverage Ratio calculated on a Pro Forma Basis does not exceed the Total Net Leverage Ratio immediately prior to the issuance or incurrence of such Incremental Equivalent Debt and the consummation of such Permitted Acquisition, or (y) the Consolidated Cash Interest Coverage Ratio calculated on a Pro Forma Basis is no less than the Consolidated Cash Interest Coverage Ratio immediately prior to the issuance or incurrence of such Incremental Equivalent Debt and the consummation of such Permitted Acquisition, 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 2.16(d)(iii)(B2.14(d)(iii)(B) does not exceed the sum of (a) the greater of (x) $385,000,000 475,000,000 and (y) 100% of Consolidated EBITDA plus (b) the principal amount of any voluntary prepayments of Term Loans (other than to the extent 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)), (ii) no such Incremental Equivalent Debt shall not be subject to any Guarantee by any Person other than a Loan Party shall provide a Guarantee or otherwise be an obligor with respect to such Incremental Equivalent DebtParty, (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 the 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 B Loans and Revolving Credit Loansthat are secured on a first lien basis by Term Priority Collateral, then such Incremental Equivalent Debt shall be subject to a new or then-existing First Lien Pari Passu Intercreditor Agreement to which Agreement, (b) secured on a Senior Representative acting junior basis with the Obligations under Term Loans that are secured on behalf of a first lien basis by the holders of Term Priority Collateral, then such Incremental Equivalent Debt shall become a party or otherwise be subject to another a Second Lien Intercreditor Agreement or other lien subordination or and intercreditor arrangement satisfactory to the Borrower and the Administrative Agent or (bc) secured on a junior basis with unsecured and subordinated to the Term B Loans and Revolving Credit LoansObligations, then such Incremental Equivalent Debt shall be subject to a new or then-existing Second Lien Intercreditor Subordination Agreement to which a Senior Representative of (or, alternatively, terms in the holders of definitive documentation for such Incremental Equivalent Debt shall become a party or otherwise subject substantially similar to another lien subordination and intercreditor arrangement satisfactory to those in such applicable agreement, as agreed by the Lead Borrower and the Administrative Agent), (vii) such Incremental Equivalent Debt (other than in the case of any Permitted Earlier Maturity Debt) shall have a final maturity date which is no earlier than the then Maturity Date of the 2020 Replacement Term Loans or, the 2023 Replacement Term Loans or the 2024 Extended Term Loans and a Weighted Average Life to Maturity which is no shorter equal to or greater than the then Weighted Average Life to Maturity of the 2020 Replacement Term B Loans or, the 2023 Replacement Term Loans or the 2024 Extended Term 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 ratax) to in the case of Incremental Equivalent Debt that is secured on a junior basis, unsecured or subordinated with the Obligations under Term Loans required to be that are secured on a first lien basisbasis by the Term Priority Collateral, on a less than pro rata basis than the Term Loans and (y) in the case of Incremental Equivalent Debt that is secured on a pari passu basis with the Obligations under Term Loans that are secured on a first lien basis by the Term Priority Collateral, on a pro rata or a less than pro rata basis than the Term Loans that are secured on a first lien basis and 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)(iii2.14(e)(iii) shall apply to any Incremental Equivalent Debt in the form of loans denominated in Dollars that ranks rank pari passu in right of payment and security with the Obligations under Term B Loans and Revolving Credit Loans that are secured on a first lien basis by the Term Priority Collateral 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 2020 Replacement Term B Loans and, the 2023 Replacement Term Loans and the 2024 Extended Term Loans and (x) 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 BorrowerBorrower in good faith) to the lenders or holders providing such Incremental Equivalent Debt, than those applicable to the 2020 Replacement Term B Loans and, the 2023 Replacement Term Loans and the 2024 Extended Term Loans (except for covenants or other provisions (a) if more favorable to the existing Lenders under the 2020 Replacement Term Loans and, the 2023 Replacement Term Loans and the 2024 Extended Term Loans, conformed (or added) in the Loan Documents, for the benefit of the Lenders holding 2020 Replacement Term B Loans and, the 2023 Replacement Term Loans and the 2024 Extended Term Loans, pursuant to an amendment thereto subject solely to the reasonable satisfaction of the Administrative Agent or Agent, (b) applicable only to periods after the Latest Maturity Date at the time of the issuance or incurrence of such Incremental Equivalent Debt) or (c) such terms and conditions shall be current market terms for such type of Incremental Equivalent Debt (as reasonably determined by the Borrower in good faith by the Lead Borrowerfaith)). 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
Incremental Equivalent Debt. The Borrowers Borrower 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 Borrowers 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 or, in the case of notes only, a pari passu basis with the 2018 Refinancing Term B InitialTerm B-3 Loans and Revolving Credit other Loans required to be secured on a pari passu basis with the InitialTerm B-3 Loans), and, in the each 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 Term B Loans and Revolving Credit Loansis secured, the First Lien Secured Net Leverage Ratio does not exceed 2.00:1.00 6.254.20 :1.00 and (2) if such Incremental Equivalent Debt ranks junior in right of security with the Term B Loans and Revolving Credit Loansis unsecured, the Secured Total Net Leverage Ratio does not exceed 2.00:1.00 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 2.16(d)(iii)(B2.14(d)(iii)(B) (plus the First Lien Incremental Usage Amount) does not exceed $85,000,000 (provided, that such amount shall not be reduced by the sum of Term B-2 Loans, Additional Commitments (aas defined in the First Lien Credit Agreement Amendment No. 1) or the 2016 First Lien Incremental Loan (as defined in Amendment No. 1)), following the Amendment No. 2 Effective Date, $385,000,000 42,600,000 plus (b) the principal amount of any voluntary prepayments of Term Loans made after the Amendment No.2 Effective Date (other than to the extent not made with the proceeds of Indebtedness (other than the incurrence of First Lien 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. 2 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 (ii) no such Incremental Equivalent Debt shall not be subject to any Guarantee by any Person other than a Loan Party shall provide a Guarantee or otherwise be an obligor with respect to such Incremental Equivalent DebtParty, (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 the 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 Term B Obligations under InitialTerm B-3 Loans and Revolving Credit Loansother Loans required to be secured on a pari passu basis with the InitialTerm B-3 Loans then such Incremental Equivalent Debt shall be subject to the Second Lien Intercreditor Agreement, if applicable, or a Junior Lien Intercreditor Agreement, (b) secured on a junior basis with the Obligations under InitialTerm B-3 Loans and other Loans required to be secured on a pari passu basis with the InitialTerm B-3 Loans then such Incremental Equivalent Debt shall be subject to a Third Lien Intercreditor Agreement or other lien subordination and intercreditor arrangement satisfactory to the Borrower and Administrative Agent or (c) unsecured and subordinated to the Obligations, then such Incremental Equivalent Debt shall be subject to a new or then-existing First Lien Intercreditor Subordination Agreement to which a Senior Representative acting on behalf of (or, alternatively, terms in the holders of definitive documentation for such Incremental Equivalent Debt shall become a party or otherwise subject substantially similar to another lien subordination or intercreditor arrangement satisfactory to those in such applicable agreement, as agreed by the Borrower and the Administrative Agent or (b) secured on a junior basis with the Term B Loans and Revolving Credit Loans, then such Incremental Equivalent Debt shall be subject to a new or then-existing Second Lien Intercreditor Agreement to which a Senior Representative of the holders of such Incremental Equivalent Debt shall become a party or otherwise subject to 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 no shorter equal to or greater than the Weighted Average Life to Maturity of the Term B InitialTerm 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 (but not greater than pro rata) to the Term Loans required to be secured on a first lien basis, basis and 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 (x) 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 InitialTerm 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 InitialTerm 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 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
Incremental Equivalent Debt. The Borrowers Borrower 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 Borrowers 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 a pari passu basis with the 2018 Refinancing Obligations under Term B Loans and Revolving Credit Loansrequired to be secured on a first lien basis), and, in the case of notes, issued in a public offering, Rule 144A or other private placement or bridge in lieu of the foregoing, 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 Term B Loans and Revolving Credit Loansis secured, the First Lien Secured Net Leverage Ratio calculated on a Pro Forma Basis does not exceed 2.00:1.00 either (I) 3.75:1.00 or (II) solely if such Incremental Equivalent Debt is incurred in connection with a Permitted Acquisition, the Secured Net Leverage Ratio immediately prior to the issuance or incurrence of such Incremental Equivalent Debt and the consummation of such Permitted Acquisition, and (2) if such Incremental Equivalent Debt ranks junior in right of security with is unsecured, either (I) (x) the Term B Loans and Revolving Credit Loans, the Secured Total Net Leverage Ratio calculated on a Pro Forma Basis does not exceed 2.00:1.00 4.25:1.00 or (y) the Consolidated Cash Interest Coverage Ratio calculated on a Pro Forma Basis is no less than 2.00:1.00, or (II) solely in the case of Incremental Equivalent Debt incurred in connection with a Permitted Acquisition, either (x) the Total Net Leverage Ratio calculated on a Pro Forma Basis does not exceed the Total Net Leverage Ratio immediately prior to the issuance or incurrence of such Incremental Equivalent Debt and the consummation of such Permitted Acquisition, or (y) the Consolidated Cash Interest Coverage Ratio calculated on a Pro Forma Basis is no less than the Consolidated Cash Interest Coverage Ratio immediately prior to the issuance or incurrence of such Incremental Equivalent Debt and the consummation of such Permitted Acquisition, 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 2.16(d)(iii)(B2.14(d)(iii)(B) does not exceed the sum of (a) the greater of (x) $385,000,000 475,000,000 and (y) 100% of Consolidated EBITDA plus (b) the principal amount of any voluntary prepayments of Term Loans (other than to the extent 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)), (ii) no such Incremental Equivalent Debt shall not be subject to any Guarantee by any Person other than a Loan Party shall provide a Guarantee or otherwise be an obligor with respect to such Incremental Equivalent DebtParty, (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 the 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 B Loans and Revolving Credit Loansthat are secured on a first lien basis by Term Priority Collateral, then such Incremental Equivalent Debt shall be subject to a new or then-existing First Lien Pari Passu Intercreditor Agreement to which Agreement, (b) secured on a Senior Representative acting junior basis with the Obligations under Term Loans that are secured on behalf of a first lien basis by the holders of Term Priority Collateral, then such Incremental Equivalent Debt shall become a party or otherwise be subject to another a Second Lien Intercreditor Agreement or other lien subordination or and intercreditor arrangement satisfactory to the Borrower and the Administrative Agent or (bc) secured on a junior basis with unsecured and subordinated to the Term B Loans and Revolving Credit LoansObligations, then such Incremental Equivalent Debt shall be subject to a new or then-existing Second Lien Intercreditor Subordination Agreement to which a Senior Representative of (or, alternatively, terms in the holders of definitive documentation for such Incremental Equivalent Debt shall become a party or otherwise subject substantially similar to another lien subordination and intercreditor arrangement satisfactory to those in such applicable agreement, as agreed by the Lead Borrower and the Administrative Agent), (vii) such Incremental Equivalent Debt (other than in the case of any Permitted Earlier Maturity Debt) shall have a final maturity date which is no earlier than the then Maturity Date of the Term B Loans and a Weighted Average Life to Maturity which is no shorter equal to or greater than the then Weighted Average Life to Maturity of the Term 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 ratax) to in the case of Incremental Equivalent Debt that is secured on a junior basis, unsecured or subordinated with the Obligations under Term Loans required to be that are secured on a first lien basisbasis by the Term Priority Collateral, on a less than pro rata basis than the Term Loans and (y) in the case of Incremental Equivalent Debt that is secured on a pari passu basis with the Obligations under Term Loans that are secured on a first lien basis by the Term Priority Collateral, on a pro rata or a less than pro rata basis than the Term Loans that are secured on a first lien basis and 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)(iii2.14(e)(iii) shall apply to any Incremental Equivalent Debt in the form of loans denominated in Dollars that ranks rank pari passu in right of payment and security with the Obligations under Term B Loans and Revolving Credit Loans that are secured on a first lien basis by the Term Priority Collateral 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 (x) 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 BorrowerBorrower in good faith) to the lenders or holders providing such Incremental Equivalent Debt, than those applicable to the Term B Loans (except for covenants or other provisions (a) if more favorable to the existing Lenders under the Term B Loans, conformed (or added) in the Loan Documents, for the benefit of the Lenders holding Term B Loans, pursuant to an amendment thereto subject solely to the reasonable satisfaction of the Administrative Agent or Agent, (b) applicable only to periods after the Latest Maturity Date at the time of the issuance or incurrence of such Incremental Equivalent Debt) or (c) such terms and conditions shall be current market terms for such type of Incremental Equivalent Debt (as reasonably determined by the Borrower in good faith by the Lead Borrowerfaith)). 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).
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