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 refinancing thereof) in respect of one or more series of senior or subordinated notes (which may be unsecured or secured on a pari passu or junior lien basis with the Obligations under the Initial Loans), 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 Commitments (the “Incremental Equivalent Debt”); provided that (i) if such Incremental Equivalent Debt is secured, the obligations in respect thereof shall not be secured by any Lien on any asset of the Borrower or any Subsidiary Guarantor other than any asset constituting Collateral and such Incremental Equivalent Debt shall not be subject to any Guarantee by any Person other than the Guarantors, (ii) if such Incremental Equivalent Debt is (x) secured on a pari passu or junior basis with the Obligations under the Initial Loans, then such Incremental Equivalent Debt shall be subject to the ABL Intercreditor Agreement or (y) unsecured and subordinated to the Obligations, then such Incremental Equivalent Debt shall be subject to a lien subordination and intercreditor arrangement satisfactory to Borrower and the Administrative Agent, (iii) such Incremental Equivalent Debt shall have a final maturity date which is no earlier than ninety-one (91) days after the Latest Maturity Date then existing or have a Weighted Average Life to Maturity which is shorter than the Weighted Average Life to Maturity of the then existing Loans, (iv) 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 first or pro rata to the Loans and any first lien secured incremental notes required to be secured on a first lien basis and except with respect to customary “AHYDO catch-up payments”), (v) such Incremental Equivalent Debt shall not be required to be on terms and pursuant to documentation consistent with the Loans or reasonably satisfactory to the Administrative Agent, nor shall it be subject to the conditions set forth in (e)(ii), (vi) except as otherwise set forth in this clause (g), such Incremental Equivalent Debt shall have covenants and defaults no more restrictive (excluding pricing and optional prepayment or redemption terms), when taken as a whole, than those with respect to the Initial Loans (except for covenants or other provisions applicable only to periods after the Latest Maturity Date of the Loan) 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), and (vii) no Event of Default (or, if the proceeds of such Incremental Equivalent Debt are to be used in whole or in part to fund an Investment or Permitted Acquisition, no Event of Default under Sections 8.01(a), (b), (g) or (h)) shall have occurred and be continuing or would exist immediately after giving effect to such incurrence.
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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 refinancing thereof) in respect of one or more series of senior or subordinated notes (which may be unsecured or notes, senior secured on a pari passu first lien or junior lien basis with the Obligations under the Initial Loans)notes or subordinated 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 an Incremental Commitments Term 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 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 (iwhether or not such Indebtedness is secured) if 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 is secured(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 obligations in respect thereof 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 2.20, (i) the Borrower shall not be secured deliver to the Administrative Agent a certificate dated as of the date of issuance or incurrence of the Incremental Equivalent Debt signed by any Lien on any asset 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 Subsidiary Guarantor other than 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 asset constituting Collateral and applicable Senior Secured Net Leverage Ratio or Total Net Leverage Ratio required to be tested in lieu thereof pursuant to the proviso set forth in the 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 the Guarantors, (iiiii) if to the extent such Incremental Equivalent Debt is secured, (x) the 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 or junior basis with the Obligations under or on a junior basis to the Initial LoansLiens that secure the Obligations, 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 ABL Intercreditor Agreement or (y) unsecured and subordinated to case of Incremental Equivalent Debt that will be secured by the Collateral on a pari passu basis with the Obligations, then 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 subject secured by the Collateral on a junior priority basis to a lien subordination and intercreditor arrangement satisfactory to Borrower and the Administrative AgentObligations, the Second Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable, (iiiiv) such (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 have a final maturity date which is be no earlier than ninety-one (91) days after the Latest Term Loan Maturity Date then existing 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 which that is no shorter than the then-longest remaining Weighted Average Life to Maturity of the then existing Loans, (iv) such Incremental Equivalent Debt shall not be subject to any mandatory redemption or prepayment provisions or rights (except to Tranches of Term Loans outstanding at the extent any such mandatory redemption or prepayment is required to be applied first or pro rata to the Loans and any first lien secured incremental notes required to be secured on a first lien basis and except with respect to customary “AHYDO catch-up payments”), (v) such Incremental Equivalent Debt shall not be required to be on terms and pursuant to documentation consistent with the Loans or reasonably satisfactory to the Administrative Agent, nor shall it be subject to the conditions set forth in (e)(ii)time of incurrence, (vi) except as otherwise set forth in this clause the terms and conditions of such Indebtedness (gexcluding, for the avoidance of doubt, interest rates (including through fixed interest rates), such Incremental Equivalent Debt shall have covenants interest margins, rate floors, fees, funding discounts, original issue discounts and defaults no more restrictive (excluding pricing and optional 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 with respect applicable to the Initial Loans Facilities when taken as a whole (except for 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 Loan) 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 current market 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 type 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 (as reasonably determined provided, that, any such Incremental Equivalent Debt that is incurred in good faith by the Borrowerform 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)), and (viiviii) no Event of Default (or, if the proceeds of shall have occurred and be continuing or would result after giving effect to such Incremental Equivalent Debt are to be used (including the use of the proceeds thereof) (provided that, if such Incremental Equivalent Debt is being incurred in whole or in part to fund an Investment or Permitted 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), (b), (gf) or (h)g) shall have occurred and be continuing on the date of the consummation of such Limited Condition Acquisition or would exist immediately 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 incurrenceIncremental 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.
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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 refinancing thereof) in respect of one or more series of senior or subordinated notes (which may be unsecured or notes, senior secured on a pari passu or junior lien basis with the Obligations under the Initial Loans)notes or subordinated 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 an Incremental Commitments Term 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.
(b) As a condition precedent to the issuance or incurrence of any Incremental Equivalent Debt pursuant to this Section 2.17, (i) if such 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 is secured, the obligations in respect thereof shall not be secured signed by any Lien on any asset a Responsible Officer of the Borrower or any Subsidiary Guarantor other than any asset constituting Collateral 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 GuarantorsBorrower and a Guarantor, respectively, (iiiii) if 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 a pari passu or junior an “equal and ratable” basis with the Obligations under other Facilities or on a “junior” basis to the Initial LoansLiens 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 ABL 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 (yB) unsecured and subordinated in the case of Incremental Equivalent Debt that will be secured by the Collateral on a junior priority basis to the Obligations, then such 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 subject to a lien subordination and intercreditor arrangement satisfactory to Borrower and the Administrative Agent, (iii) such Incremental Equivalent Debt shall have a final maturity date which is no earlier than ninety-one (91) days after the Latest Term Loan Maturity Date then existing or have a Weighted Average Life to Maturity which is shorter than in effect at the Weighted Average Life to Maturity time of the then existing Loansincurrence, (iv) issuance or obtainment of 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 first or pro rata to the Loans and any first lien secured incremental notes required to be secured on a first lien basis and except with respect to customary “AHYDO catch-up payments”)Indebtedness, (v) (A) the terms of such Incremental Equivalent Debt shall Indebtedness that constitutes notes do not be required to be on terms and pursuant to documentation consistent with the Loans provide for any mandatory prepayment, repurchase, redemption or reasonably satisfactory sinking fund obligations prior to the Administrative Agent, nor shall it be subject to the conditions set forth in (e)(ii), (vi) except as otherwise set forth in this clause (g), such Incremental Equivalent Debt shall have covenants and defaults no more restrictive (excluding pricing and optional prepayment or redemption terms), when taken as a whole, than those with respect to the Initial Loans (except for covenants or other provisions applicable only to periods after the Latest Term Loan Maturity Date in effect at the time of the Loan) incurrence, issuance 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), and (vii) no Event of Default (or, if the proceeds of such Incremental Equivalent Debt are to be used in whole or in part to fund an Investment or Permitted Acquisition, no Event of Default under Sections 8.01(a), (b), (g) or (h)) shall have occurred and be continuing or would exist immediately after giving effect to such incurrence.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 refinancing thereof) in respect of one or more series of senior or subordinated notes (which may be unsecured or secured on a by Liens ranking junior or subordinate to the Liens securing the Obligations) or notes (whether pari passu, subordinated in right of payment to the Obligations, unsecured or secured by Liens ranking junior or subordinate to or pari passu or junior lien basis with the Obligations under Liens securing the Initial Loans)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 an Incremental Term Facility (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 Commitments (the “Incremental Equivalent Debt”); provided that (i) only if such Incremental Equivalent Debt is securedin 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 obligations in respect thereof shall not be secured by any Lien on any asset of the Borrower or any Subsidiary Guarantor other than any asset constituting Collateral and such Incremental Equivalent Debt shall not be subject to any Guarantee by any Person other than the Guarantors, (ii) if such Incremental Equivalent Debt is were incurred as an Incremental Facility, would have triggered the MFN Adjustment, the MFN Adjustment shall apply,
(xii) secured on a pari passu or junior basis with the Obligations under the Initial Loans, then such Incremental Equivalent Debt shall be subject (x) to the ABL Intercreditor Agreement or (y) unsecured and subordinated to the Obligations, then extent such Incremental Equivalent Debt is pari passu to the Initial Term Loans 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 Equivalent Debt is junior to the Initial Term Loans in right of payment or with respect 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 subject to a lien subordination and intercreditor arrangement satisfactory to Borrower and the Administrative Agentconverted satisfies this subclause (ii)), (iii) such Incremental Equivalent Debt shall not be guaranteed by any Person 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 Event of Default shall have occurred and be continuing (provided that, solely with respect to any Incremental Equivalent Debt incurred in connection with a final Limited Condition Transaction, (x) 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 effective 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 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 (2) on a pro rata basis or less than pro rata basis (or greater than pro rata basis with respect to 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 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 date which is no earlier than ninety-one and prepayment or redemption terms), if not substantially consistent with the terms of the existing Term Loans, are as otherwise reasonably satisfactory to the Administrative Agent (91it being understood that (A) days terms not substantially consistent with the existing Term Loans that are applicable only after the Latest Maturity Date then existing or have a Weighted Average Life to Maturity which is shorter than the Weighted Average Life to Maturity of the then existing Loans, (iv) at such Incremental Equivalent Debt shall not time will be subject to any mandatory redemption or prepayment provisions or rights (except to the extent any such mandatory redemption or prepayment is required deemed to be applied first or pro rata to the Loans and any first lien secured incremental notes required to be secured on a first lien basis and except with respect to customary “AHYDO catch-up payments”), (v) such Incremental Equivalent Debt shall not be required to be on terms and pursuant to documentation consistent with the Loans or reasonably satisfactory to the Administrative Agent, nor shall it be subject to the conditions set forth (B) terms contained in (e)(ii), (vi) except as otherwise set forth in this clause (g), such Incremental Equivalent Debt shall have covenants and defaults no more restrictive (excluding pricing and optional prepayment or redemption terms)that are, when taken as a whole, than those with respect more favorable to the Initial Loans (except for covenants lenders or other provisions applicable only to periods after the Latest Maturity Date of the Loan) 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), and (vii) no Event of Default (or, if the proceeds agent of such Incremental Equivalent Debt and are substantially concurrently conformed (or added) to the Credit Documents for the benefit of the lenders under the existing Term Loans or the Administrative Agent, as applicable, will be deemed to be used in whole or in part satisfactory to fund an Investment or Permitted Acquisition, no Event of Default under Sections 8.01(a), (b), (g) or (h)) shall have occurred and be continuing or would exist immediately after giving effect to such incurrence.the Administrative Agent and
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Incremental Equivalent Debt. The Borrower Borrowers 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 refinancing thereof) Borrowers in respect of one or more series of senior secured first lien loans or subordinated notes (which may be unsecured or secured provided that such Liens on a the Term Loan Priority Collateral shall rank pari passu or junior lien basis with the Liens on the Term Loan Priority Collateral securing the Obligations under the Initial Loansthis Agreement (but without regard to control of remedies)), junior lien loans or notes, subordinated unsecured loans or notes or senior unsecured loans or notes, in each the case of any securities issued in a public offering, Rule 144A or other private placement or bridge financing 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) if such the aggregate amount of Incremental Equivalent Debt (together with Incremental Term Loans and the Incremental Revolving Credit Commitments) incurred pursuant to this Section 2.14 shall not exceed the Available Incremental Amount (it being understood that (I) the Borrowers may elect to use clause (C) of the Available Incremental Amount prior to clause (A) or (B) and regardless of whether there is securedcapacity under clause (A) or (B), and if clauses (A), (B) and (C) are available and the Borrowers do not make an election, the obligations in respect thereof shall not Borrowers will be secured by any Lien on any asset deemed to have elected clause (C), (II) the Borrowers may reclassify utilizations among clauses (A), (B) and (C) of the Borrower Available Incremental Amount if, at the time of such reclassification, the Borrowers would be permitted to incur the aggregate principal amount of Indebtedness being so reclassified, and (III) if amounts incurred under clause (A) or (B) of the Available Incremental Amount are incurred concurrently with the incurrence of Incremental Loans or Incremental Commitments and/or Incremental Equivalent Debt (in each case, including any unused commitments obtained) in reliance on clause (A) or (B) of the Available Incremental Amount or any Subsidiary Guarantor other than any asset constituting Collateral and amounts pursuant to a fixed dollar basket in Section 7.03, the First Lien Net Leverage Ratio, the Senior Secured Net Leverage Ratio, the Total Net Leverage Ratio or the Fixed Charge Coverage Ratio shall be calculated without giving effect to such amounts incurred (or commitments obtained) in reliance on the foregoing clause (A) or (B) or such fixed dollar basket in Section 7.03), (ii) such Incremental Equivalent Debt shall not rank pari passu in right of payment with, or junior in right of payment to, the Obligations under the then existing Term Loans and Revolving Credit Loans and will either be subject secured solely by the same Collateral securing the Obligations (and to any Guarantee by any Person other than the Guarantors, (ii) if such Incremental Equivalent Debt is extent (x) secured on a pari passu or junior basis with the Obligations under the Initial Loansby any Applicable Lien, then such Incremental Equivalent Debt shall be subject to the ABL Intercreditor Agreement, the Second Lien Intercreditor Agreement or and, if applicable, the First Lien Intercreditor Agreement and (y) unsecured and subordinated to secured by Liens on the ObligationsCollateral (other than Applicable Liens), then such Incremental Equivalent Debt shall be subject to a lien subordination the Second Lien Intercreditor Agreement and the ABL Intercreditor Agreement or, in each case, to intercreditor arrangement arrangements reasonably satisfactory to Borrower and the Administrative Agent, as applicable) or be unsecured, (iii) such Incremental Equivalent Debt shall not have a final scheduled maturity date which is no earlier than ninety-one (91) days after the Latest Maturity Date then existing or have a Weighted Average Life to Maturity which is shorter than the Weighted Average Life to Maturity of the then existing LoansTerm B Loans (other than 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 criteria), (iv) such Incremental Equivalent Debt shall have a Weighted Average Life to Maturity not be subject shorter than the remaining Weighted Average Life to Maturity of the Term B Loans (prior to any mandatory redemption or prepayment provisions or rights extension thereto) (except to other than any Incremental Equivalent Debt consisting of a customary bridge facility so long as the extent any long-term Indebtedness into which such mandatory redemption or prepayment customary bridge facility is required to be applied first or pro rata to the Loans and any first lien secured incremental notes required to be secured on a first lien basis and except with respect to customary “AHYDO catch-up payments”converted satisfies this criteria), (v) such Incremental Equivalent Debt shall not be required to be on terms and pursuant to documentation consistent with the Loans or reasonably satisfactory to the Administrative Agent, nor shall it be subject to the conditions set forth in clauses (e)(ii), iii) and (viiv) except as otherwise set forth in this clause (g)above, such Incremental Equivalent Debt shall have covenants amortization determined by the Borrowers and defaults no more restrictive the applicable lenders, (excluding pricing and optional prepayment or redemption terms), when taken as a whole, than those with respect to the Initial Loans (except for covenants or other provisions applicable only to periods after the Latest Maturity Date of the Loanvi) or such terms and conditions shall be current market terms for such type of any Incremental Equivalent Debt (as reasonably determined in good faith consisting of first lien syndicated term loans shall be subject to Section 2.14(e)(iii) solely to the extent required thereby and not otherwise excluded by the Borrower)terms thereof, and (vii) no Event of Default (or, if the proceeds of such Incremental Equivalent Debt are shall have fees, if any, determined by the Borrowers and the applicable arranger(s); and (viii) such Incremental Equivalent Debt may participate on a pro rata basis or less than or greater than pro rata basis in any voluntary prepayments of other Classes of Term Loans; and may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis (except for prepayments with respect to be used in whole or in part to fund any Refinancing Indebtedness thereof and other than with any Class of Term Loans with an Investment or Permitted Acquisition, no Event of Default under Sections 8.01(a), (b), (g) or (hearlier Maturity Date as compared with such Incremental Equivalent Debt)) shall have occurred and be continuing or would exist immediately after giving effect to such incurrencein any mandatory prepayments of Term Loans.
Appears in 1 contract
Sources: First Lien Credit Agreement (Option Care Health, 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 refinancing thereof) in respect of one or more series of senior or subordinated notes (which may be unsecured or notes, senior secured on a pari passu or junior lien basis with the Obligations under the Initial Loans)notes or subordinated 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 pari passu, 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 an Incremental Commitments Term 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.
(b) As a condition precedent to the issuance or incurrence of any Incremental Equivalent Debt pursuant to this Section 2.20, (i) the Borrower shall 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 is securedDebt, the obligations in respect thereof shall not be secured by any Lien on any asset of that the Borrower or any Subsidiary Guarantor other than any asset constituting Collateral and is in Pro Forma Compliance with the Total Net Leverage Ratio requirement set forth in such provision, (ii) such Incremental Equivalent Debt shall not be borrowed by or subject to any Guarantee by any Person other than the Borrower and the Guarantors, (iiiii) if to the extent such Incremental Equivalent Debt is secured, (x) the 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 or junior basis with the Obligations under or on a junior basis to the Initial LoansLiens that secure the Obligations, then 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 ABL Intercreditor Agreement or (y) unsecured and subordinated to case of Incremental Equivalent Debt that will be secured by the Collateral on a pari passu basis with the Obligations, then 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 subject secured by the Collateral on a junior priority basis to a lien subordination and intercreditor arrangement satisfactory to Borrower and the Administrative AgentObligations, the Second Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable, (iiiiv) such (A) [reserved] and (B) the final maturity of any Incremental Equivalent Debt shall have a final maturity date which is be no earlier than ninety-one (91) days after the Latest Term Loan Maturity Date then existing 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 have a Weighted Average Life to Maturity which that is no shorter than the then-longest remaining Weighted Average Life to Maturity of the then existing Loans, (iv) such Incremental Equivalent Debt shall not be subject to any mandatory redemption or prepayment provisions or rights (except to Tranches of Term Loans outstanding at the extent any such mandatory redemption or prepayment is required to be applied first or pro rata to the Loans and any first lien secured incremental notes required to be secured on a first lien basis and except with respect to customary “AHYDO catch-up payments”), (v) such Incremental Equivalent Debt shall not be required to be on terms and pursuant to documentation consistent with the Loans or reasonably satisfactory to the Administrative Agent, nor shall it be subject to the conditions set forth in (e)(ii)time of incurrence, (vi) except as otherwise set forth in this clause the terms and conditions of such Indebtedness (gexcluding, for the avoidance of doubt, interest rates (including through fixed interest rates), such Incremental Equivalent Debt shall have covenants interest margins, rate floors, fees, funding discounts, original issue discounts and defaults no more restrictive (excluding pricing and optional 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 with respect applicable to the Initial Loans Term Facilities when taken as a whole (except for 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 Loan) 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 current market 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 type 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 (as reasonably determined provided, that, any such Incremental Equivalent Debt that is incurred in good faith by the Borrowerform 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)), and (viiviii) no Event of Default (or, if the proceeds of shall have occurred and be continuing or would result after giving effect to such Incremental Equivalent Debt are to be used (including the use of the proceeds thereof) (provided that, if such Incremental Equivalent Debt is being incurred in whole or in part to fund an Investment or Permitted 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), (b), (gf) or (h)g) shall have occurred and be continuing on the date of the consummation of such Limited Condition Acquisition or would exist immediately 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 incurrenceIncremental 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 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 refinancing thereof) in respect of one or more series of senior or subordinated notes (which may be unsecured or notes, senior secured on a pari passu first lien or junior lien basis with the Obligations under the Initial Loans)notes or subordinated 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 an Incremental Commitments Term 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 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 (iwhether or not such Indebtedness is secured) if or is unsecured, the First Lien Net Leverage Ratio test set forth in clause (b) 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 is secured(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 obligations in respect thereof 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 Section 2.20, (i) the Borrower shall not be secured by any Lien on any asset 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 Subsidiary Guarantor other than 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 asset constituting Collateral and applicable Total Net Leverage Ratio required to be tested in lieu thereof pursuant to the proviso set forth in the 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 the Guarantors, (iiiii) if to the extent such Incremental Equivalent Debt is secured, (x) the 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 or junior basis with the Obligations under or on a junior basis to the Initial LoansLiens that secure the Obligations, 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 in the ABL Intercreditor Agreement or (y) unsecured and subordinated case of Incremental Equivalent Debt that will be secured by the Collateral to a customary intercreditor agreement reasonably satisfactory to the ObligationsAdministrative Agent, then such (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 subject to a lien subordination and intercreditor arrangement satisfactory to Borrower and no earlier than the Administrative AgentLatest Term Loan Maturity Date in effect at the time of the incurrence, issuance or obtainment of such Indebtedness, (iiiv) (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 shall have a final maturity date which is no earlier (other than ninety-one (91revolving credit commitments) days after the Latest Maturity Date then existing or have a Weighted Average Life to Maturity which that is no shorter than the then-longest remaining Weighted Average Life to Maturity of the then existing Loans, (iv) such Incremental Equivalent Debt shall not be subject to any mandatory redemption or prepayment provisions or rights (except to Tranches of Term Loans outstanding at the extent any such mandatory redemption or prepayment is required to be applied first or pro rata to the Loans and any first lien secured incremental notes required to be secured on a first lien basis and except with respect to customary “AHYDO catch-up payments”), (v) such Incremental Equivalent Debt shall not be required to be on terms and pursuant to documentation consistent with the Loans or reasonably satisfactory to the Administrative Agent, nor shall it be subject to the conditions set forth in (e)(ii)time of incurrence, (vi) except as otherwise set forth in this clause the terms and conditions of such Indebtedness (gexcluding, for the avoidance of doubt, interest rates (including through fixed interest rates), such Incremental Equivalent Debt shall have covenants interest margins, rate floors, fees, funding discounts, original issue discounts and defaults no more restrictive (excluding pricing and optional 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 with respect applicable to the Initial Loans Facilities when taken as a whole (except for 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 Loan) 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 current market 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 shall be subject to the terms of Section 2.16(e)(vi) (assuming, for such type 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 (as reasonably determined in good faith by including the Borrower), and use of the proceeds thereof) (vii) no Event of Default (orprovided that, if the proceeds of such Incremental Equivalent Debt are to be used is being incurred in whole or in part to fund an Investment or Permitted 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), (b), (gf) or (h)g) shall have occurred and be continuing or would exist immediately 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 incurrenceIncremental 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
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 upon notice by the Borrower (and any refinancing to the Administrative Agent, specifying in reasonable detail the proposed terms thereof) in respect of , request to issue one or more series of senior secured, senior unsecured, senior subordinated or subordinated notes (which may be unsecured or secured on a pari passu or junior lien basis with the Obligations under the Initial Loans), 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)or, in each case, that are issued or made Extendable Bridge Loans in lieu of Incremental Commitments thereof (which notes or loans (or Extendable Bridge Loans), if secured by the Collateral, are secured on a first lien “equal and ratable” basis with the Liens securing the Obligations or secured on a “junior” basis with the Liens securing the Obligations) and guaranteed only by Loan Parties or entities who become Loan Parties (such notes or loans (or Extendable Bridge Loans), collectively, “Incremental Equivalent Debt”) in an amount not to exceed the Incremental Amount (at the time of incurrence); provided that (i) if no Event of Default would exist after giving pro forma effect to any such request subject Section 1.02(e), (ii) any such incurrence of Incremental Equivalent Debt is securedshall be in a minimum amount of the lesser of (x) $20,000,000 and (y) the entire amount that may be requested under this Section 2.19 and (iii) if incurred pursuant to the Incremental Ratio Amount, the obligations in respect thereof such Indebtedness shall not be deemed to be secured by Liens on all or any Lien on any asset portion of the assets of the Borrower or any Subsidiary Guarantor of its Restricted Subsidiaries for purposes of testing the Consolidated Secured Leverage Ratio regardless of whether such Indebtedness is in fact secured. The Borrower may appoint any Person 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 incurrence of any Incremental Equivalent Debt pursuant to this Section 2.19, (i) no Default shall have occurred and be continuing or would result from the borrowings to be made on the applicable effective date, (ii) the representations and warranties contained in Article V and the other than any asset constituting Collateral Loan Documents are true and correct in all material respects on and as of the applicable effective date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date, and except that for purposes of this Section 2.19(b), the representations and warranties contained in Section 5.05(a) and Section 5.05(b) shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, (iii) such Incremental Equivalent Debt shall not be subject to any Guarantee Guaranteed by any Person other than the Guarantorsthat is not a Loan Party or that does not become a Loan Party, (iiiv) if such Incremental Equivalent Debt is (x) to the extent secured on a pari passu or junior basis with by the Obligations under the Initial LoansCollateral, then such Incremental Equivalent Debt shall be subject to the ABL Intercreditor Agreement or (y) unsecured and subordinated intercreditor arrangements that are reasonably satisfactory to the ObligationsIncremental Equivalent Debt Arranger and, then if such Incremental Equivalent Debt shall be subject to a lien subordination and intercreditor arrangement satisfactory to Borrower and Arranger is not the Administrative Agent, the Administrative Agent; (iiiv) such Incremental Equivalent Debt shall have a final maturity date which is no earlier than ninety-one (91) days after the then Latest Maturity Date; provided that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date then existing or have a Weighted Average Life to Maturity which is shorter than Date, (vi) the Weighted Average Life to Maturity of such Incremental Equivalent Debt shall not (A) be shorter than that of any then-existing Term Loan 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 and Customary Escrow Provisions or (y) “AHYDO” payments) provided, that, with respect to Extendable Bridge Loans, the Weighted Average Life to Maturity thereof may be shorter than the then existing longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (ivvii) such Incremental Equivalent Debt (other than any Extendable Bridge Loans) shall not be subject to any mandatory redemption or prepayment provisions or rights (except (x) Customary Escrow Provisions or (y) to the extent any such mandatory redemption or prepayment is required to be applied first or pro rata to the Term Loans and any first lien secured incremental notes required to be other Indebtedness that is secured on a first lien pari passu basis with the Obligations) and except with respect to customary “AHYDO catch-up payments”)(viii) the covenants, (v) events of default, guarantees, collateral and other terms of such Incremental Equivalent Debt shall not be required are customary for similar debt securities or loans in light of then-prevailing market conditions at the time of incurrence (provided that a certificate of a Responsible Officer of the Borrower delivered to be on the Incremental Equivalent Debt 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 pursuant to conditions of such Incremental Equivalent Debt or drafts of the documentation consistent with relating thereto, stating that the Loans or reasonably satisfactory to Borrower has determined in good faith that such terms and conditions satisfy the Administrative Agent, nor shall it be subject to the conditions set forth in (e)(ii), (vi) except as otherwise requirement set forth in this clause (gb), such Incremental Equivalent Debt shall have covenants and defaults no more restrictive (excluding pricing and optional prepayment or redemption terms), when taken as a whole, than those with respect to the Initial Loans (except for covenants or other provisions applicable only to periods after the Latest Maturity Date of the Loan) or be conclusive evidence that such terms and conditions shall be current market terms for satisfy such type of requirement unless the Incremental Equivalent Debt Arranger provides notice to the Borrower of its objection during such five Business Day period (as reasonably determined 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 Term Loans, the conditions in good faith this clause (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), .
(c) The Lenders hereby authorize the Incremental Equivalent Debt Arranger (and (viithe Lenders hereby authorize the Incremental Equivalent Debt Arranger to execute and deliver such amendments) no Event to enter into amendments 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 and/or to make such technical amendments as may be necessary or appropriate in the reasonable opinion of Default (or, if the proceeds Incremental Equivalent Debt Arranger and the Borrower in connection with the issuance of such Incremental Equivalent Debt, in each case on terms consistent with this Section 2.19. If the Incremental Equivalent Debt are Arranger is not the Administrative Agent, the actions authorized to be used taken by the Incremental Equivalent Debt Arranger herein shall be done in whole or in part consultation with the Administrative Agent and, with respect to fund an Investment or Permitted Acquisition, no Event of Default under Sections 8.01(aapplicable documentation (including amendments to this Agreement and the other Loan Documents), (b), (g) or (h)) shall have occurred and be continuing or would exist immediately after giving effect any comments to such incurrencedocumentation reasonably requested by the Administrative Agent shall be reflected therein.
Appears in 1 contract
Sources: Credit Agreement (QuidelOrtho Corp)
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 refinancing thereof) in respect of one or more series of senior or subordinated notes (which may be unsecured or notes, senior secured on a pari passu or junior lien basis with the Obligations under the Initial Loans)notes or subordinated 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 an Incremental Commitments Term 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.
(b) As a condition precedent to the issuance or incurrence of any Incremental Equivalent Debt pursuant to this Section 2.17, (i) if such 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 is secured, the obligations in respect thereof shall not be secured signed by any Lien on any asset a Responsible Officer of the Borrower or any Subsidiary Guarantor other than any asset constituting Collateral and such Incremental Equivalent Debt shall not be subject to any Guarantee by any Person other than certifying that the Guarantors, conditions precedent set forth in the following clauses (ii) through (viii) have been satisfied and, if such Incremental Equivalent Debt applicable, that the Borrower is (x) secured on a pari passu or junior basis in Pro Forma Compliance with the Obligations under the Initial Loans, then such Incremental Equivalent Debt shall be subject to the ABL Intercreditor Agreement or (y) unsecured and subordinated to the Obligations, then such Incremental Equivalent Debt shall be subject to a lien subordination and intercreditor arrangement satisfactory to Borrower and the Administrative Agent, (iii) such Incremental Equivalent Debt shall have a final maturity date which is no earlier than ninety-one (91) days after the Latest Maturity Date then existing or have a Weighted Average Life to Maturity which is shorter than the Weighted Average Life to Maturity of the then existing Loans, (iv) 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 first or pro rata to the Loans and any first lien secured incremental notes required to be secured on a first lien basis and except with respect to customary “AHYDO catch-up payments”), (v) such Incremental Equivalent Debt shall not be required to be on terms and pursuant to documentation consistent with the Loans or reasonably satisfactory to the Administrative Agent, nor shall it be subject to the conditions set forth in (e)(ii), (vi) except as otherwise set forth in this clause (g), such Incremental Equivalent Debt shall have covenants and defaults no more restrictive (excluding pricing and optional prepayment or redemption terms), when taken as a whole, than those with respect to the Initial Loans (except for covenants or other provisions applicable only to periods after the Latest Maturity Date of the Loan) 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), and (vii) no Event of Default (or, if the proceeds of such Incremental Equivalent Debt are to be used in whole or in part to fund an Investment or Permitted Acquisition, no Event of Default under Sections 8.01(a), (b), (g) or (h)) shall have occurred and be continuing or would exist immediately after giving effect to such incurrence.Maximum
Appears in 1 contract
Sources: Credit Agreement (Visteon 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 refinancing 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 or junior lien basis with the Obligations under the Initial LoansTerm 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 Guarantor other than any asset constituting Collateral 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 not be subject substantially similar to any Guarantee by any Person other than the GuarantorsCollateral Documents (with such differences as are reasonably satisfactory to the Administrative Agent), (iivi) if such Incremental Equivalent Debt is (xa) secured on a pari passu or 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 the Initial LoansTerm Loans and Revolving Credit Loans that are secured on a first lien basis, then such Incremental Equivalent Debt shall be subject to the ABL Second Lien Intercreditor Agreement or other lien subordination and intercreditor arrangement satisfactory to the Borrower and the Administrative Agent or (yc) unsecured and subordinated to the Obligations, then such Incremental Equivalent Debt shall be subject to a lien subordination and intercreditor arrangement satisfactory 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 the Administrative Agent), (iiivii) such Incremental Equivalent Debt shall have a final maturity date which is no earlier than ninety-one (91) days after the Latest then Maturity Date then existing or have and a Weighted Average Life to Maturity which is shorter equal to or greater than the Weighted Average Life to Maturity of the then existing Term B-3 Loans, (ivviii) 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 first or pro rata to the Term Loans and any first lien secured incremental notes 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 (v) such Incremental Equivalent Debt shall not be required to be on terms and pursuant to documentation consistent with the Loans or reasonably satisfactory to the Administrative Agent, nor shall it be subject to the conditions set forth in (e)(ii), (viix) except as otherwise set forth in this clause (gh), such Incremental Equivalent Debt shall have covenants terms and defaults no more restrictive conditions (excluding pricing other than with respect to pricing, fees, rate floors and optional prepayment or redemption terms)) substantially similar to, when 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 with respect applicable to the Initial 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 Loanissuance 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), and (vii) no Event of Default (or, if the proceeds of such . It is understood that Incremental Equivalent Debt are 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 used in whole or in part to fund an Investment or Permitted Acquisition, no Event incurred under such clause (i)(A) at the time of Default such incurrence as incurred under Sections 8.01(asuch clause (i)(B), (b), (g) or (h)) shall have occurred and be continuing or would exist immediately after giving effect to such incurrence.
Appears in 1 contract
Incremental Equivalent Debt. The Borrower may(i) Borrowers may from time to time, upon written notice by Administrative 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 refinancing thereof) in respect of one or more series of senior or subordinated notes (which may be unsecured or notes, senior secured on a pari passu or junior lien basis with the Obligations under the Initial Loans)notes or subordinated 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 Commitments any New Term Loans 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 Available Incremental Amount at the time of incurrence.
(ii) As a condition precedent to the issuance or incurrence of any Incremental Equivalent Debt pursuant to this Section 2.23(b); provided , (A) Borrowers shall deliver to Administrative Agent a certificate dated as of the date of issuance or incurrence of the Incremental Equivalent Debt signed by an Authorized Officer of Administrative Borrower certifying that the conditions precedent set forth in the following clauses (iB) if through (I) have been satisfied, (B) Borrowers shall be in pro forma compliance with the Financial Covenant as of the last day of the Test Period most recently ended (as determined in accordance with Section 1.02), (C) such Incremental Equivalent Debt shall not be borrowed by or subject to any Guaranty by any Person other than Borrowers and a Guarantor, respectively, (D) to the extent such Incremental Equivalent Debt is secured, (x) the obligations in respect thereof shall not be secured by any Lien on any asset of the Borrower or any Subsidiary Guarantor other than any asset constituting Collateral and security agreements relating to such Incremental Equivalent Debt shall not be subject substantially the same as the Collateral Documents (with such differences as are reasonably satisfactory to any Guarantee by any Person other than the GuarantorsAdministrative Agent and Collateral Agent), (iiy) if such Incremental Equivalent Debt is (x) shall be secured either on a pari passu or junior an “equal and ratable” basis with the Obligations under other Commitments or on a “junior” basis to the Initial LoansLiens that secure the Commitments, then in each case solely on all or some of the Collateral that secures the Commitments and (z) such Incremental Equivalent Debt shall be subject to the ABL an Intercreditor Agreement or in form and substance reasonable satisfactory to Borrowers, Administrative Agent and Collateral Agent, (yE) unsecured and subordinated to the Obligations, then such final maturity of any Incremental Equivalent Debt shall be subject to a lien subordination and intercreditor arrangement satisfactory to Borrower and the Administrative Agent, (iii) such Incremental Equivalent Debt shall have a final maturity date which is no earlier than ninety-one (91) days after the Latest Maturity Date then existing applicable to Term Loans at the time of the incurrence, issuance or obtainment of such Indebtedness, (F) (x) 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 Maturity Date applicable to Term Loans 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) and (y) the terms of any Incremental Equivalent Debt have a Weighted Average Life to Maturity which that is no shorter than the then longest remaining Weighted Average Life to Maturity of the then existing Loansoutstanding tranches of Term Loans outstanding at the time of incurrence, (ivG) if such Incremental Equivalent Debt shall not be subject to any mandatory redemption or prepayment provisions or rights (except to Indebtedness is subordinated in right of payment, the extent any such mandatory redemption or prepayment is required to be applied first or pro rata to the Loans and any first lien secured incremental notes required to be secured on a first lien basis and except with respect to customary “AHYDO catch-up payments”), (v) such Incremental Equivalent Debt shall not be required to be on terms and pursuant to documentation consistent with the Loans or reasonably satisfactory to the Administrative Agent, nor shall it be subject to the conditions set forth in (e)(ii), (vi) except as otherwise set forth in this clause (g), such Incremental Equivalent Debt Facilities shall have covenants and defaults no more restrictive (excluding pricing and optional prepayment been designated as “Designated Senior Debt” or redemption terms), when taken as a whole, than those with its equivalent in respect to the Initial Loans (except for covenants or other provisions applicable only to periods after the Latest Maturity Date of the Loan) 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), and (vii) no Event of Default (or, if the proceeds of such Incremental Equivalent Debt are to be used in whole or in part to fund an Investment or Permitted Acquisition, no Event of Default under Sections 8.01(a), (b), (g) or (h)) shall have occurred and be continuing or would exist immediately after giving effect to such incurrence.Indebtedness,
Appears in 1 contract
Sources: Credit and Guaranty Agreement (AVG Technologies N.V.)
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 refinancing 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 pari passu or junior lien basis or, in the case of notes only, a pari passu basis with the Obligations under Initial Loans and other Loans required to be secured on a pari passu basis with the Initial Loans), 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 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 is secured, the Secured Net Leverage Ratio does not exceed 6.25:1.00 and (2) if such Incremental Equivalent Debt is unsecured, the Total Net Leverage Ratio does not exceed 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 Loans made under Section 2.14(d)(iii)(B) (plus the First Lien Incremental Usage Amount) does not exceed $85,000,000 plus the principal amount of any voluntary prepayments of Loans (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) 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 Guarantor other than any asset constituting Collateral 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 not be subject substantially similar to any Guarantee by any Person other than the GuarantorsCollateral Documents (with such differences as are reasonably satisfactory to the Administrative Agent), (iivi) if such Incremental Equivalent Debt is (xa) secured on a pari passu or junior basis with the Obligations under Initial Loans and other Loans required to be secured on a pari passu basis with the Initial Loans, Loans then such Incremental Equivalent Debt shall be subject to the ABL 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 (yc) unsecured and subordinated to the Obligations, then such Incremental Equivalent Debt shall be subject to a lien subordination and intercreditor arrangement satisfactory 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 the Administrative Agent), (iiivii) such Incremental Equivalent Debt shall have a final maturity date which is no earlier than ninety-one (91) days after the Latest then Maturity Date then existing or have and a Weighted Average Life to Maturity which is shorter equal to or greater than the Weighted Average Life to Maturity of the then existing Initial Loans, (ivviii) 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 first or pro rata to the Loans and any first lien secured incremental notes 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 (v) such Incremental Equivalent Debt shall not be required to be on terms and pursuant to documentation consistent with the Loans or reasonably satisfactory to the Administrative Agent, nor shall it be subject to the conditions set forth in (e)(ii), (viix) except as otherwise set forth in this clause (gh), such Incremental Equivalent Debt shall have covenants terms and defaults no more restrictive conditions (excluding pricing other than with respect to pricing, fees, rate floors and optional prepayment or redemption terms)) substantially similar to, when 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 with respect applicable to the Initial Loans (except for covenants or other provisions (a) conformed (or added) in the Loan Documents, for the benefit of the Lenders holding 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 Loanissuance 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), and (vii) no Event of Default (or, if the proceeds of such . It is understood that Incremental Equivalent Debt are 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 used in whole or in part to fund an Investment or Permitted Acquisition, no Event incurred under such clause (i)(A) at the time of Default such incurrence as incurred under Sections 8.01(asuch clause (i)(B), (b), (g) or (h)) shall have occurred and be continuing or would exist immediately after giving effect to such incurrence.
Appears in 1 contract
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 refinancing thereof) Available Incremental Amount in respect of one or more series of senior unsecured notes or subordinated term loans or senior secured first lien notes or term loans or senior secured junior lien (which may as compared to the Liens securing the Secured Obligations) term loans, in each case, if secured, that will be unsecured or secured by Liens on the Collateral on a pari passu or junior lien priority basis (as applicable) with the Obligations under Liens on Collateral securing the Initial Loans)Secured Obligations, in each case and 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 all Revolving Credit Commitment Increases and all Incremental Commitments Term Loans, the Available Incremental Amount (the “Incremental Equivalent Debt”); provided that (i) if such Incremental Equivalent Debt is secured, (i) does not mature earlier than the obligations in respect thereof shall not be secured by any Lien on any asset Latest Term Loan Maturity Date (as determined as of the Borrower or any Subsidiary Guarantor other than any asset constituting Collateral and date of incurrence of such Incremental Equivalent Debt shall not be subject Debt), or have a shorter weighted average life to any Guarantee by any Person other maturity than the Guarantorsweighted average life to maturity of the Revolving Credit Commitments, the Term Loans or any Incremental Facility outstanding at such time, (ii) if such Incremental Equivalent Debt is has terms and conditions (xother than pricing (including interest rates, rate floors or original issue discount) secured on a pari passu or junior basis with the Obligations under the Initial Loansand fees and, then such Incremental Equivalent Debt shall be subject to the ABL Intercreditor Agreement or (y) unsecured and subordinated to the Obligations, then such Incremental Equivalent Debt shall be subject to a lien subordination and intercreditor arrangement satisfactory to Borrower and the Administrative Agent, (iii) such Incremental Equivalent Debt shall have a final maturity date which is no earlier than ninety-one (91) days after the Latest Maturity Date then existing or have a Weighted Average Life to Maturity which is shorter than the Weighted Average Life to Maturity of the then existing Loans, (iv) 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 first or pro rata to the Loans and any first lien secured incremental notes required to be secured on a first lien basis and except solely with respect to customary “AHYDO catch-up payments”)any term loans, (v) such Incremental Equivalent Debt shall not be required to be on terms amortization, prepayment premiums, and pursuant to documentation consistent with the Loans or reasonably satisfactory to the Administrative Agent, nor shall it be subject to the conditions set forth in (e)(ii), (vi) except as otherwise explicitly set forth in this clause (g), such Incremental Equivalent Debt shall have covenants and defaults Agreement) no more restrictive (excluding pricing and optional prepayment or redemption terms), when taken as a whole, than those with respect to under the Initial Loans credit facilities provided for herein (except for covenants or other provisions applicable only to periods after the Latest Maturity Date (as determined as of the Loandate of incurrence of such Incremental Equivalent Debt)), (iii) or such terms 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 conditions shall be current market terms for such type of any pari passu secured Incremental Equivalent Debt (as reasonably determined in good faith by the Borrowerprovided 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, shall not be secured by any Lien on any asset that does not also secure the existing credit facilities hereunder, or to the extent guaranteed, shall not be guaranteed by any Person other than the Subsidiary Guarantors, (v) to the extent secured, shall be subject to customary intercreditor arrangements reasonably satisfactory to the Borrower and the Administrative Agent and (viivi) no Event of Default (or, if the proceeds of after giving effect to 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 the provisions set forth in whole or in part to fund an Investment or Permitted Acquisition, no Event of Default under Sections 8.01(aSection 1.04(a), (b), (g) or (h)) shall have occurred and be continuing or would exist immediately after giving effect to such incurrence.
Appears in 1 contract
Sources: Credit Agreement (Eventbrite, Inc.)
Incremental Equivalent Debt. The Borrower Borrowers 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 refinancing thereof) Borrowers in respect of one or more series of senior secured first lien loans or subordinated notes (which may be unsecured or secured provided that such Liens on a the Term Loan Priority Collateral shall rank pari passu or junior lien basis with the Liens on the Term Loan Priority Collateral securing the Obligations under the Initial Loansthis Agreement (but without regard to control of remedies)), junior lien loans or notes, subordinated unsecured loans or notes or senior unsecured loans or notes, in each the case of any securities issued in a public offering, Rule 144A or other private placement or bridge financing 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) if such Incremental Equivalent Debt is secured, the obligations in respect thereof shall not be secured by any Lien on any asset of the Borrower or any Subsidiary Guarantor other than any asset constituting Collateral and such Incremental Equivalent Debt shall not be subject to any Guarantee by any Person other than the Guarantors, (ii) if such Incremental Equivalent Debt is (x) secured on a pari passu or junior basis with the Obligations under the Initial Loans, then such Incremental Equivalent Debt shall be subject to the ABL Intercreditor Agreement or (y) unsecured and subordinated to the Obligations, then such Incremental Equivalent Debt shall be subject to a lien subordination and intercreditor arrangement satisfactory to Borrower and the Administrative Agent, (iii) such Incremental Equivalent Debt shall have a final maturity date which is no earlier than ninety-one (91) days after the Latest Maturity Date then existing or have a Weighted Average Life to Maturity which is shorter than the Weighted Average Life to Maturity of the then existing Loans, (iv) 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 first or pro rata to the Loans and any first lien secured incremental notes required to be secured on a first lien basis and except with respect to customary “AHYDO catch-up payments”), (v) such Incremental Equivalent Debt shall not be required to be on terms and pursuant to documentation consistent with the Loans or reasonably satisfactory to the Administrative Agent, nor shall it be subject to the conditions set forth in (e)(ii), (vi) except as otherwise set forth in this clause (g), such Incremental Equivalent Debt shall have covenants and defaults no more restrictive (excluding pricing and optional prepayment or redemption terms), when taken as a whole, than those with respect to the Initial Loans (except for covenants or other provisions applicable only to periods after the Latest Maturity Date of the Loan) or such terms and conditions shall be current market terms for such type aggregate amount of Incremental Equivalent Debt (as reasonably determined in good faith by together with Incremental Term Loans and the BorrowerIncremental Revolving Credit Commitments) incurred pursuant to this Section 2.14 shall not exceed the Available Incremental Amount (it being understood that (I) the Borrowers may elect to use clause (C) of the Available Incremental Amount prior to clause
(A) or (B) and regardless of whether there is capacity under clause (A) or (B), and if clauses (viiA), (B) no Event and (C) are available and the Borrowers do not make an election, the Borrowers will be deemed to have elected clause (C), (II) the Borrowers may reclassify utilizations among clauses (A), (B) and (C) of Default (orthe Available Incremental Amount if, if at the proceeds time of such reclassification, the Borrowers would be permitted to incur the aggregate principal amount of Indebtedness being so reclassified, and (III) if amounts incurred under clause (A) or (B) of the Available Incremental Amount are incurred concurrently with the incurrence of Incremental Loans or Incremental Commitments and/or Incremental Equivalent Debt are to be used (in whole or each case, including any unused commitments obtained) in part to fund an Investment or Permitted Acquisition, no Event of Default under Sections 8.01(a), reliance on clause (b), (gA) or (h)B) of the Available Incremental Amount or any amounts pursuant to a fixed dollar basket in Section 7.03, the First Lien Net Leverage Ratio, the Senior Secured Net Leverage Ratio, the Total Net Leverage Ratio or the Fixed Charge Coverage Ratio shall have occurred and be continuing or would exist immediately after calculated without giving effect to such incurrence.amounts incurred (or commitments obtained) in reliance on the foregoing clause (A) or (B) or such fixed dollar basket in Section 7.03),
Appears in 1 contract
Sources: First Lien Credit Agreement (Option Care Health, Inc.)
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 refinancing 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 or junior lien basis with the Obligations under the Initial LoansTerm 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) if (A) after giving Pro Forma Effect to both (x) the issuance or incurrence of such Incremental Equivalent Debt is secured, the obligations in respect thereof shall not be secured by any Lien on any asset (assuming a borrowing of the Borrower or maximum credit thereunder) and (y) any Subsidiary Guarantor other than any asset constituting Collateral and such Incremental Equivalent Debt shall not be subject to any Guarantee by any Person other than the GuarantorsSpecified Transactions consummated in connection therewith, (ii1) if such Incremental Equivalent Debt is (x) ranks pari passu in right of security with the Obligations under Term Loans and Revolving Credit Loans that are secured on a pari passu or first lien basis, the Consolidated First Lien Net Leverage Ratio does not exceed 5.00:1.00, (2) if such Incremental Equivalent Debt ranks junior basis in right of security with the Obligations under the Initial Loans, then such Incremental Equivalent Debt shall be subject to the ABL Intercreditor Agreement or (y) unsecured and subordinated to the Obligations, then such Incremental Equivalent Debt shall be subject to a lien subordination and intercreditor arrangement satisfactory to Borrower and the Administrative Agent, (iii) such Incremental Equivalent Debt shall have a final maturity date which is no earlier than ninety-one (91) days after the Latest Maturity Date then existing or have a Weighted Average Life to Maturity which is shorter than the Weighted Average Life to Maturity of the then existing Loans, (iv) 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 first or pro rata to the Term Loans and any first lien secured incremental notes required to be Revolving Credit Loans that are secured on a first lien basis and except with respect to customary “AHYDO catch-up payments”)basis, (v) such Incremental Equivalent Debt shall the Secured Net Leverage Ratio does not be required to be on terms and pursuant to documentation consistent with the Loans or reasonably satisfactory to the Administrative Agent, nor shall it be subject to the conditions set forth in (e)(ii), (vi) except as otherwise set forth in this clause (g), such Incremental Equivalent Debt shall have covenants and defaults no more restrictive (excluding pricing and optional prepayment or redemption terms), when taken as a whole, than those with respect to the Initial Loans (except for covenants or other provisions applicable only to periods after the Latest Maturity Date of the Loan) 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), and (vii) no Event of Default (or, if the proceeds of such Incremental Equivalent Debt are to be used in whole or in part to fund an Investment or Permitted Acquisition, no Event of Default under Sections 8.01(a), (b), (g) or (h)) shall have occurred and be continuing or would exist immediately after giving effect to such incurrence.exceed
Appears in 1 contract
Incremental Equivalent Debt. (a) The Borrower maymay from time to time, upon notice by the Borrower to the Administrative Agent, at any time issue or from time to time after the Closing Date, issue, incur or otherwise obtain Indebtedness of the Borrower (and any refinancing thereof) in respect consisting of one or more series of senior or subordinated notes (which may be unsecured or notes, senior secured on a pari passu first lien or junior lien basis with the Obligations under the Initial Loans)notes or subordinated notes, in each case issued in a public offering, Rule 144A or other private placement or customary bridge facility in lieu respect of the foregoing, senior secured first lien, 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, that are issued or made in lieu of Incremental Commitments (the “Incremental Equivalent Debt”); provided that (i) if such Incremental Equivalent Debt is secured, the obligations in respect thereof shall not will be secured solely by any Lien on any asset of the Borrower or any Subsidiary Guarantor other than any asset constituting Collateral and such Incremental Equivalent Debt shall not be subject to any Guarantee by any Person other than the Guarantors, (ii) if such Incremental Equivalent Debt is (x) secured on a pari passu or junior basis with the Loan Obligations under 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 (or, in the case of a Limited Condition Acquisition, as of the applicable LCA Test Date).
(b) As a condition precedent to the issuance or incurrence of any Incremental Equivalent Debt pursuant to this Section 2.23, (i) the Borrower shall 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 precedent set forth in the following clauses (ii) through (ix) have been satisfied and, if applicable, that the Borrower is in pro forma compliance with the Maximum Total Net Leverage Requirement pursuant to clause (x) of the definition of “Incremental Amount” (together with supporting calculations demonstrating compliance with such requirement), (ii) such Incremental Equivalent Debt shall not be borrowed by or subject to any Guarantee by any person other than the Borrower and a Subsidiary Loan Party, 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 Security 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 Initial Term Loans (but without regard to the control of remedies) or on a “junior” basis to the Liens that secure the Initial Term Loans, then solely on all or some of the Collateral that secures the Initial Term Loans and (z) such Incremental Equivalent Debt shall be subject to the ABL Intercreditor Agreement or (y) unsecured an intercreditor agreement in form and subordinated substance reasonably satisfactory to the ObligationsAdministrative Agent, then (iv) the final maturity of such Incremental Equivalent Debt shall be subject to a lien subordination and intercreditor arrangement satisfactory to Borrower and no earlier than the Administrative AgentLatest Maturity Date in effect at the time of the incurrence, issuance or obtainment of such Indebtedness, (iiiv) (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 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, fundamental change, asset sale or casualty or condemnation event, and customary acceleration rights after an event of default) and (B) the terms of such Incremental Equivalent Debt shall have a final maturity date which is no earlier than ninety-one (91) days after in the Latest Maturity Date then existing or form of term loans have a Weighted Average Life to Maturity which that is no shorter than the then longest remaining Weighted Average Life to Maturity of the then existing LoansTerm Loans outstanding at the time of incurrence (calculated disregarding the effects of any prepayments or amortization), (ivvi) if such Incremental Equivalent Debt is subordinated in right of payment, the Term Loans shall not have been designated as “designated senior indebtedness” or its equivalent in respect of such Indebtedness and the applicable subordination provisions shall 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 first or pro rata to the Loans and any first lien secured incremental notes required to be secured on a first lien basis and except with respect to customary “AHYDO catch-up payments”), (v) such Incremental Equivalent Debt shall not be required to be on terms and pursuant to documentation consistent with the Loans or reasonably satisfactory to the Administrative Agent, nor shall it be subject to (vii) [reserved]; (viii) the terms and conditions set forth in of such Indebtedness (e)(iiexcluding, for the avoidance of doubt, conversion rights, interest rates (including through fixed interest rates), (vi) except as otherwise set forth in this clause (g)interest margins, such Incremental Equivalent Debt shall have covenants rate floors, fees, funding discounts, original issue discounts and defaults no more restrictive (excluding pricing and optional prepayment or redemption premiums and terms)) are, when taken as a whole, not materially more favorable to the lenders or holders providing such Indebtedness than those with respect applicable to the Initial Term Loans when taken as a whole (except for other than covenants (including financial maintenance covenants) or other provisions applicable only to periods after the Latest Maturity Date at the time of the Loanincurrence, issuance or obtainment of such Indebtedness) 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), and (viiix) no Default or Event of Default (or, if the proceeds of such Incremental Equivalent Debt are to be used in whole or in part to fund an Investment or Permitted Acquisition, no Event of Default under Sections 8.01(a), (b), (g) or (h)) shall have occurred and be continuing or would exist immediately result after giving effect to such incurrenceIncremental Equivalent Debt (or, in the case of Incremental Equivalent Debt incurred to finance a Limited Condition Acquisition, no Default or Event of Default shall have occurred and be continuing as of the applicable LCA Test Date or would result therefrom and no Default or Event of Default shall have occurred and be continuing under Section 7.01(b), (c), (h) or (i) as of the date the of the consummation of such Limited Condition Acquisition or would result therefrom).
(c) The Lenders hereby authorize the Administrative Agent and the Collateral Agent to enter into amendments (which may be executed and delivered solely by the Borrower and the Administrative Agent and the Collateral Agent) 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 of the Loan Parties and/or to make such technical amendments as may be necessary 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 2.23.
Appears in 1 contract
Sources: Credit Agreement (TravelCenters of America Inc. /MD/)
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 refinancing thereof) in respect of one or more series of senior or subordinated notes (which may be unsecured or notes, senior secured on a pari passu first lien or junior lien basis with the Obligations under the Initial Loans)notes or subordinated 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 an Incremental Commitments Term 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 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 (iwhether or not such Indebtedness is secured) if 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 is secured(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 obligations in respect thereof 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 2.20, (i) the Borrower shall not be secured deliver to the Administrative Agent a certificate dated as of the date of issuance or incurrence of the Incremental Equivalent Debt signed by any Lien on any asset 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 Subsidiary Guarantor other than 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 asset constituting Collateral and applicable Senior Secured Net Leverage Ratio or Total Net Leverage Ratio required to be tested in lieu thereof pursuant to the proviso set forth in the 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 the Guarantors, (iiiii) if to the extent such Incremental Equivalent Debt is secured, (x) the 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 or junior basis with the Obligations under or on a junior basis to the Initial LoansLiens that secure the Obligations, 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 ABL case of Incremental Equivalent Debt that will be secured by the Collateral on a pari passu basis with the Obligations, the Pari Passu Intercreditor Agreement or an Other Intercreditor Agreement (yand the “Additional First Lien Representative” (as defined in the Second Lien Intercreditor Agreement) unsecured and subordinated to the Obligations, then 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 subject secured by the Collateral on a junior priority basis to the Obligations, a lien subordination and intercreditor arrangement satisfactory to Borrower 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 Administrative Agent, 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 (iiiB) such the final maturity of any other Incremental Equivalent Debt shall have a final maturity date which is be no earlier than ninety-one (91) days after the Latest Term Loan Maturity Date then existing 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 which that is no shorter than the then-longest remaining Weighted Average Life to Maturity of the then existing Loans, (iv) such Incremental Equivalent Debt shall not be subject to any mandatory redemption or prepayment provisions or rights (except to Tranches of Term Loans outstanding at the extent any such mandatory redemption or prepayment is required to be applied first or pro rata to the Loans and any first lien secured incremental notes required to be secured on a first lien basis and except with respect to customary “AHYDO catch-up payments”), (v) such Incremental Equivalent Debt shall not be required to be on terms and pursuant to documentation consistent with the Loans or reasonably satisfactory to the Administrative Agent, nor shall it be subject to the conditions set forth in (e)(ii)time of incurrence, (vi) except as otherwise set forth in this clause the terms and conditions of such Indebtedness (gexcluding, for the avoidance of doubt, interest rates (including through fixed interest rates), such Incremental Equivalent Debt shall have covenants interest margins, rate floors, fees, funding discounts, original issue discounts and defaults no more restrictive (excluding pricing and optional 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 with respect applicable to the Initial Loans Facilities when taken as a whole (except for 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 Loan) 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 current market conclusive evidence that such terms for and conditions satisfy such type of requirement) or are otherwise reasonably acceptable to the Administrative Agent, (vii) the pricing applicable to the Incremental Equivalent Debt (as reasonably shall be determined in good faith by the Borrower)Borrower and the applicable lenders providing such Incremental Equivalent Debt, and (viiviii) no Event of Default (or, if the proceeds of shall have occurred and be continuing or would result after giving effect to such Incremental Equivalent Debt are to be used (including the use of the proceeds thereof) (provided that, if such Incremental Equivalent Debt is being incurred in whole or in part to fund an Investment or Permitted 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), (b), (gf) or (h)g) shall have occurred and be continuing or would exist immediately 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 incurrenceIncremental 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
Sources: Credit Agreement (Keyw Holding Corp)
Incremental Equivalent Debt. The Borrower Borrowers 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 refinancing thereof) Borrowers in respect of one or more series of senior secured first lien loans or subordinated notes (which may be unsecured or secured provided that such Liens on a the Term Loan Priority Collateral shall rank pari passu or junior lien basis with the Liens on the Term Loan Priority Collateral securing the Obligations under the Initial Loansthis Agreement (but without regard to control of remedies)), junior lien loans or notes, subordinated unsecured loans or notes or senior unsecured loans or notes, in each the case of any securities issued in a public offering, Rule 144A or other private placement or bridge financing 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) if such the aggregate amount of Incremental Equivalent Debt (together with Incremental Term Loans and the Incremental Revolving Credit Commitments) incurred pursuant to this Section 2.14 shall not exceed the Available Incremental Amount (it being understood that (I) the Borrowers may elect to use clause (C) of the Available Incremental Amount prior to clause (A) or (B) and regardless of whether there is securedcapacity under clause (A) or (B), and if clauses (A), (B) and (C) are available and the Borrowers do not make an election, the obligations in respect thereof shall not Borrowers will be secured by any Lien on any asset deemed to have elected clause (C), (II) the Borrowers may reclassify utilizations among clauses (A), (B) and (C) of the Borrower Available Incremental Amount if, at the time of such reclassification, the Borrowers would be permitted to incur the aggregate principal amount of Indebtedness being so reclassified, and (III) if amounts incurred under clause (A) or (B) of the Available Incremental Amount are incurred concurrently with the incurrence of Incremental Loans or Incremental Commitments and/or Incremental Equivalent Debt (in each case, including any unused commitments obtained) in reliance on clause (A) or (B) of the Available Incremental Amount or any Subsidiary Guarantor other than any asset constituting Collateral and amounts pursuant to a fixed dollar basket in Section 7.03, the First Lien Net Leverage Ratio, the Senior Secured Net Leverage Ratio, the Total Net Leverage Ratio or the Fixed Charge Coverage Ratio shall be calculated without giving effect to such amounts incurred (or commitments obtained) in reliance on the foregoing clause (A) or (B) or such fixed dollar basket in Section 7.03), (ii) such Incremental Equivalent Debt shall not rank pari passu in right of payment with, or junior in right of payment to, the Obligations under the then existing Term Loans and Revolving Credit Loans and will either be subject secured solely by the same Collateral securing the Obligations (and to any Guarantee by any Person other than the Guarantors, (ii) if such Incremental Equivalent Debt is extent (x) secured on a pari passu or junior basis with the Obligations under the Initial Loansby any Applicable Lien, then such Incremental Equivalent Debt shall be subject to the ABL Intercreditor Agreement, the Second Lien Intercreditor Agreement or and, if applicable, the First Lien Intercreditor Agreement and (y) unsecured and subordinated to secured by Liens on the ObligationsCollateral (other than Applicable Liens), then such Incremental Equivalent Debt shall be subject to a lien subordination the Second Lien Intercreditor Agreement and the ABL Intercreditor Agreement or, in each case, to intercreditor arrangement arrangements reasonably satisfactory to Borrower and the Administrative Agent, as applicable) or be unsecured, (iii) such Incremental Equivalent Debt shall not have a final scheduled maturity date which is no earlier than ninety-one (91) days after the Latest Maturity Date then existing or have a Weighted Average Life to Maturity which is shorter than the Weighted Average Life to Maturity of the then existing LoansTerm B Loans and the 2021 Incremental Term Loans (other than 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 criteria), (iv) such Incremental Equivalent Debt shall have a Weighted Average Life to Maturity not be subject shorter than the remaining Weighted Average Life to Maturity of the Term B Loans and the 2021 Incremental Term Loans (prior to any mandatory redemption or prepayment provisions or rights extension thereto) (except to other than any Incremental Equivalent Debt consisting of a customary bridge facility so long as the extent any long-term Indebtedness into which such mandatory redemption or prepayment customary bridge facility is required to be applied first or pro rata to the Loans and any first lien secured incremental notes required to be secured on a first lien basis and except with respect to customary “AHYDO catch-up payments”converted satisfies this criteria), (v) such Incremental Equivalent Debt shall not be required to be on terms and pursuant to documentation consistent with the Loans or reasonably satisfactory to the Administrative Agent, nor shall it be subject to the conditions set forth in clauses (e)(ii), iii) and (viiv) except as otherwise set forth in this clause (g)above, such Incremental Equivalent Debt shall have covenants amortization determined by the Borrowers and defaults no more restrictive the applicable lenders, (excluding pricing and optional prepayment or redemption terms), when taken as a whole, than those with respect to the Initial Loans (except for covenants or other provisions applicable only to periods after the Latest Maturity Date of the Loanvi) or such terms and conditions shall be current market terms for such type of any Incremental Equivalent Debt (as reasonably determined in good faith consisting of first lien syndicated term loans shall be subject to Section 2.14(e)(iii) solely to the extent required thereby and not otherwise excluded by the Borrower)terms thereof, and (vii) no Event of Default (or, if the proceeds of such Incremental Equivalent Debt are shall have fees, if any, determined by the Borrowers and the applicable arranger(s); and (viii) such Incremental Equivalent Debt may participate on a pro rata basis or less than or greater than pro rata basis in any voluntary prepayments of other Classes of Term Loans; and may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis (except for prepayments with respect to be used in whole or in part to fund any Refinancing Indebtedness thereof and other than with any Class of Term Loans with an Investment or Permitted Acquisition, no Event of Default under Sections 8.01(a), (b), (g) or (hearlier Maturity Date as compared with such Incremental Equivalent Debt)) shall have occurred and be continuing or would exist immediately after giving effect to such incurrencein any mandatory prepayments of Term Loans.
Appears in 1 contract
Sources: First Lien Credit Agreement (Option Care Health, Inc.)
Incremental Equivalent Debt. (a) The Borrower maymay from time to time, upon written notice to the Administrative Agent, at any time or from time to time after specifying in reasonable detail the Closing Date, issueproposed terms thereof, incur or otherwise obtain Indebtedness of the Borrower (and any refinancing thereof) in respect of one or more series credit or debt facilities (secured or unsecured), the issuance of senior or secured notes, subordinated notes (which may be or senior unsecured or secured on a pari passu or junior lien basis with the Obligations under the Initial Loans)notes, in each case issued in a public offering, Rule 144A or other private placement or bridge facility in lieu of the foregoing, or senior secured or subordinated mezzanine unsecured “mezzanine” Indebtedness (any of which Indebtedness, if secured, may either have the same Lien priority as the Obligations or may be in secured by a Lien ranking junior to the form of loans or notes and limited to being unsecured or secured solely on a junior lien basis)Lien securing the Obligations) (such Indebtedness, in each casecollectively, that are issued or made in lieu of Incremental Commitments (the “Incremental Equivalent Debt”) in an aggregate amount, together with the aggregate amount of any Incremental Commitments, not to exceed the Incremental Amount (at the time of incurrence); provided that .
(b) As conditions precedent to the issuance of any Incremental Equivalent Debt pursuant to this Section:
(i) if the Borrower shall deliver to the Administrative Agent a certificate dated as of the date of issuance of such Incremental Equivalent Debt is secured(each, the obligations in respect thereof shall not be secured an “Incremental Equivalent Debt Effective Date”) signed by any Lien on any asset a Responsible Officer of the Borrower, certifying and attaching the resolutions adopted by the Borrower (to the extent the Borrower is an issuer of such Incremental Equivalent Debt) approving or any Subsidiary Guarantor other than any asset constituting Collateral consenting to the issuance of such Incremental Equivalent Debt, and certifying that the conditions precedent set forth in the following clauses (ii) through (vii) have been satisfied;
(ii) such Incremental Equivalent Debt shall not be subject to any Guarantee guaranteed by any Person other than the Guarantors, that is not a Guarantor;
(iiiii) if such Incremental Equivalent Debt is (x) will be unsecured or secured on a pari passu or junior basis with only by Property constituting the Obligations under the Initial Loans, then such Incremental Equivalent Debt shall be Collateral and subject to the ABL Intercreditor Agreement or (y) unsecured and subordinated customary intercreditor arrangements reasonably acceptable to the ObligationsAdministrative Agent and the Borrower;
(iv) except with respect to customary “bridge” or other interim credit facilities intended to be refinanced or replaced with Long-Term Indebtedness which does not satisfy the requirements of this clause (iv), then such Incremental Equivalent Debt shall be so long as, subject to a lien subordination and intercreditor arrangement satisfactory customary conditions, as determined in good faith by the Borrower, such “bridge” or other interim Indebtedness will either be automatically converted into or required to Borrower and be exchanged for permanent financing which satisfies the Administrative Agentrequirements of this clause (iv), (iii) such Incremental Equivalent Debt shall have a final maturity date which is no earlier than ninety-one (91) days after the Latest Term Maturity Date then existing outstanding;
(v) except with respect to customary “bridge” or have a other interim credit facilities intended to be refinanced or replaced with Long-Term Indebtedness which does not satisfy the requirements of this clause (v), so long as, subject to customary conditions, as determined in good faith by the Borrower, such “bridge” or other interim Indebtedness will either be automatically converted into or required to be exchanged for permanent financing which satisfies the requirements of this clause (v), the Weighted Average Life to Maturity which is of such Incremental Equivalent Debt shall not be shorter than the then remaining Weighted Average Life to Maturity of the then existing longest outstanding tranche of Term Loans;
(vi) the covenants, terms and conditions and events of default applicable to such Incremental Equivalent Debt shall not be more restrictive (other than with respect to pricing, optional prepayment or redemption terms), when taken as a whole, than the covenants, terms and conditions and Events of Default under the Loan Documents, as determined by the Borrower in good faith (except for provisions applicable only to periods following the later of the Latest Revolving Termination Date and the Latest Term Maturity Date then in effect) unless the Borrower shall make such covenants, terms and conditions applicable to the Loans pursuant to reasonably acceptable documentation to that effect;
(vii) the pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule and optional prepayment and redemption terms applicable to any Incremental Equivalent Debt shall be determined by the Borrower and the Lenders thereunder; provided that to the extent (A) such Incremental Equivalent Debt is (x) in the form of broadly syndicated term “B” loans denominated in U.S. Dollars and (y) secured on a pari passu basis with the Closing Date Term Loans, and (ivB) the Effective Yield for such Incremental Equivalent Debt exceeds the Effective Yield for Eurodollar Loans or ABR Loans in respect of the then existing Closing Date Term Loans by more than 0.50%, the Applicable Margin for Eurodollar Loans or ABR Loans in respect of the then existing Closing Date Term Loans shall be adjusted so that the Effective Yield in respect of the then existing Closing Date Term Loans is equal to the Effective Yield for such Incremental Equivalent Debt minus 0.50% (it being agreed that (x) in determining the applicable interest rate, any amendment to the interest rate margins on the Closing Date Term Loans that became effective subsequent to the Closing Date but prior to the time of the addition of such New Term Loans shall be included and (y) any increase in yield to any existing facility required due to the application of a LIBOR or ABR floor on any Incremental Equivalent Debt shall be effected solely through an increase in (or implementation of, as applicable) any LIBOR or ABR floor applicable to such existing facility) (the “Incremental Equivalent Debt MFN Provision”);
(viii) such Incremental Equivalent Debt shall not be subject to any mandatory redemption or prepayment provisions or rights (rights, except to the extent any such mandatory redemption or prepayment is required to be applied first or pro rata to the Term Loans and any first lien secured incremental notes required to be other Indebtedness that is secured on a first lien pari passu basis and except with respect the Obligations.
(c) The issuance of any Incremental Equivalent Debt shall also be subject, to customary “AHYDO catch-up payments”)the extent reasonably requested by the Administrative Agent, (v) to receipt by the Administrative Agent of legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements, including any supplements or amendments to the Security Documents providing for such Incremental Equivalent Debt shall not be required to be on terms secured thereby. The Lenders hereby authorize the Administrative Agent to enter into amendments to this Agreement and pursuant to documentation consistent the other Loan Documents with the Loans or reasonably satisfactory to Borrower as may be necessary (in the reasonable opinion of the Administrative Agent, nor shall it be subject ) in order to the conditions set forth in (e)(ii), (vi) except as otherwise set forth in this clause (g), such secure any Incremental Equivalent Debt shall have covenants and defaults no more restrictive (excluding pricing and optional prepayment or redemption terms), when taken as a whole, than those with respect the Collateral and/or to give effect to the Initial Loans (except for covenants or other provisions applicable only to periods after the Latest Maturity Date of the Loan) or such terms and conditions shall be current market terms for such type of Incremental Equivalent Debt (MFN Provision and/or to make such technical amendments to this Agreement and the other Loan Documents as reasonably determined may be necessary or appropriate in good faith by the Borrower), reasonable opinion of the Administrative Agent and (vii) no Event of Default (or, if the proceeds Borrower in connection with the issuance of such Incremental Equivalent Debt are to be used Debt, in whole or in part to fund an Investment or Permitted Acquisition, no Event of Default under Sections 8.01(a), (b), (g) or (h)) shall have occurred and be continuing or would exist immediately after giving effect to such incurrenceeach case on terms consistent with this Section 2.26.
Appears in 1 contract
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 refinancing thereof) in respect of one or more series of senior or subordinated notes (which may be unsecured or secured on a by Liens ranking junior or subordinate to the Liens securing the Obligations) or notes (whether pari passu, subordinated in right of payment to the Obligations, unsecured or secured by Liens ranking junior or subordinate to or pari passu or junior lien basis with the Obligations under Liens securing the Initial Loans)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 an Incremental Term Facility (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 Commitments (the “Incremental Equivalent Debt”); provided that (i) only if such Incremental Equivalent Debt is securedin 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 obligations in respect thereof shall not be secured by any Lien on any asset of the Borrower or any Subsidiary Guarantor other than any asset constituting Collateral and such Incremental Equivalent Debt shall not be subject to any Guarantee by any Person other than the Guarantors, (ii) if such Incremental Equivalent Debt is were incurred as an Incremental Facility, would have triggered the MFN Adjustment, the MFN Adjustment shall apply, (xii) secured on a pari passu or junior basis with the Obligations under the Initial Loans, then such Incremental Equivalent Debt shall be subject (x) to the ABL Intercreditor Agreement or (y) unsecured and subordinated to the Obligations, then extent such Incremental Equivalent Debt is pari passu to the Initial Term Loans 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 Equivalent Debt is junior to the Initial Term Loans in right of payment or with respect 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 subject to a lien subordination and intercreditor arrangement satisfactory to Borrower and the Administrative Agentconverted satisfies this subclause (ii)), (iii) such Incremental Equivalent Debt shall not be guaranteed by any Person 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 Event of Default shall have occurred and be continuing (provided that, solely with respect to any Incremental Equivalent Debt incurred in connection with a final Limited Condition Transaction, (x) 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 effective 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 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 (2) on a pro rata basis or less than pro rata basis (or greater than pro rata basis with respect to 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 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 date which is no earlier than ninety-one and prepayment or redemption terms), if not substantially consistent with the terms of the existing Term Loans, are as otherwise reasonably satisfactory to the Administrative Agent (91it being understood that (A) days terms not substantially consistent with the existing Term Loans that are applicable only after the Latest Maturity Date then existing or have a Weighted Average Life to Maturity which is shorter than the Weighted Average Life to Maturity of the then existing Loans, (iv) at such Incremental Equivalent Debt shall not time will be subject to any mandatory redemption or prepayment provisions or rights (except to the extent any such mandatory redemption or prepayment is required deemed to be applied first or pro rata to the Loans and any first lien secured incremental notes required to be secured on a first lien basis and except with respect to customary “AHYDO catch-up payments”), (v) such Incremental Equivalent Debt shall not be required to be on terms and pursuant to documentation consistent with the Loans or reasonably satisfactory to the Administrative Agent, nor shall it be subject to the conditions set forth (B) terms contained in (e)(ii), (vi) except as otherwise set forth in this clause (g), such Incremental Equivalent Debt shall have covenants and defaults no more restrictive (excluding pricing and optional prepayment or redemption terms)that are, when taken as a whole, than those with respect more favorable to the Initial lenders or the agent of such Incremental Equivalent Debt and are substantially concurrently conformed (or added) to the 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 (except C) terms contained in such Incremental Equivalent Debt that reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith) will be deemed to be satisfactory to the Administrative Agent) (provided that, to the extent that any financial maintenance covenant is added for covenants the benefit of such Incremental Equivalent Debt, no consent shall be required from the Administrative Agent or other provisions any of the Lenders if such financial maintenance covenant is either (a) also added for the benefit of the Lenders under the Credit Documents or (b) only applicable only to periods after the Latest Maturity Date of the Loan) or at such terms and conditions shall be current market terms for such type of Incremental Equivalent Debt (as reasonably determined in good faith by the Borrowertime), and (vii) no Event of Default (or, if the proceeds of such Incremental Equivalent Debt are to be used in whole or in part to fund an Investment or Permitted Acquisition, no Event of Default under Sections 8.01(a), (b), (g) or (h)) shall have occurred and be continuing or would exist immediately after giving effect to such incurrence.
Appears in 1 contract