Incremental Notes. (a) The Issuer may at any time or from time to time after the earlier of (x) the first anniversary of the Closing Date and (y) the issuance of Delayed Draw Notes in an aggregate principal amount equal to the Delayed Draw Commitment as in effect on the Closing Date, by notice to the Agent and the Purchasers (an “Incremental Request”), request one or more new commitments which may be of the same Class as any outstanding Notes (a “Note Increase”) or a new Class of Notes (collectively with any Note Increase, the “Incremental Commitments”). (b) On the applicable date (each, an “Incremental Note Closing Date”) specified in any Incremental Amendment (including through any Note Increase), subject to the satisfaction of the terms and conditions in this Section 2.7, (i) (A) each Incremental Purchaser of such Class shall purchase a Note from the Issuer (an “Incremental Note”) in an amount equal to its Incremental Commitment of such Class by wire transfer of immediately available funds as directed by the Issuer, (B) the Issuer will deliver to such Incremental Purchaser an Incremental Note issued in the name of such Incremental Purchaser and (C) each Incremental Purchaser of such Class shall become a Purchaser hereunder with respect to the Incremental Commitment of such Class and the Incremental Notes of such Class made pursuant thereto. (c) Each Incremental Request from the Issuer pursuant to this Section 2.7 shall set forth the requested amount and proposed terms of the relevant Incremental Notes. Incremental Notes may be purchased by any existing Purchaser (but no existing Purchaser will have an obligation to make any Incremental Commitment) or by any Additional Purchaser (each such existing Purchaser or Additional Purchaser providing such Commitment, an “Incremental Purchaser”); provided, that each Purchaser holding Notes at the time of any such Incremental Request (or any of its Affiliates or Related Funds) shall be provided the right of first refusal to participate on a pro rata basis with all other Purchasers holdings Notes in any such Incremental Commitment (which right may be exercised by provision of written notice from any electing Purchaser (or its applicable Affiliate or Related Fund) to the Issuer with the amount of the Incremental Commitment to be provided (not exceeding such Purchaser’s pro rata share) no later than ten (10) Business Days after receipt of the applicable Incremental Request); provided, further, that (i) the Agent shall have acknowledged any Additional Purchaser’s providing such Incremental Commitment to the extent such acknowledgment, if any, would be required under Section 16.3(c) for a sale, assignment or transfer of Notes or Commitments, as applicable, to such Additional Purchaser (ii) with respect to Incremental Commitments, any Affiliated Purchaser providing an Incremental Commitment shall be subject to the same restrictions set forth in Section 16.3(d) as they would otherwise be subject to with respect to any sale, assignment or transfer to such Affiliated Purchaser of Notes or Commitments and (iii) neither KGH, Holdings, the Issuer or any of their Subsidiaries may provide Incremental Commitments or purchase Incremental Notes under this Section 2.7. (d) The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the applicable date (which shall be no earlier than the date of such Incremental Amendment) specified therein (the “Incremental Amendment Date”) of each of the following conditions (such satisfaction to be evidenced by a certificate of the Chief Financial Officer or Controller of the Issuer delivered by the Issuer representing to the same), together with any other conditions set forth in the Incremental Amendment: (i) after giving effect to such Incremental Commitments, the conditions of Section 8.3 shall be satisfied; provided, that, in connection with any Incremental Commitment, the primary purpose of which is to finance a Permitted Acquisition, such Incremental Amendment if agreed by the Incremental Purchasers may include a waiver in full or in part of the conditions set forth in clauses (a) and (b) (other than with respect to any Event of Default under Section 10.1 or Sections 10.7 or 10.8) of Section 8.3 and in clause (f) of the defined term “Permitted Acquisition”; (ii) each Incremental Commitment shall be in an aggregate principal amount that is not less than $20,000,000 and shall be in an increment of $1,000,000 (provided, that such amount may be less than $20,000,000 if such amount represents all remaining availability under the limit set forth in Section 2.7(d)(iv)); (iii) (x) the Issuer shall be in pro forma compliance with the minimum Fixed Charge Coverage Ratio covenant (whether or not in effect) set forth in Section 6.5 hereof measured as of the end of the applicable Pro Forma Testing Period and calculated on a pro forma basis assuming that Indebtedness under the Incremental Notes had been incurred on the first day of such Pro Forma Testing Period and that all regularly scheduled interest and principal payments with respect to such Indebtedness had been paid during such Pro Forma Testing Period, and (y) the Issuer shall have a pro forma Leverage Ratio of not greater than 3.50 to 1.00, measured as of the end of the applicable Pro Forma Testing Period and calculated on a pro forma basis assuming that such Indebtedness under the Incremental Notes had been incurred on the first day of such Pro Forma Testing Period and that all regularly scheduled interest and principal payments with respect to such Indebtedness had been paid during such Pro Forma Testing Period; (iv) receipt by Agent and the Purchasers of projections showing the projected calculation of the Fixed Charge Coverage Ratio for each four-quarter fiscal period of the Issuer completed over the twelve month period immediately following the Incremental Note Closing Date, such calculation giving pro forma effect to the incurrence of the Incremental Notes on such Incremental Note Closing Date; (v) together with the Incremental Notes issued under such Incremental Amendment, the aggregate principal amount of Incremental Notes issued since the Closing Date does not exceed $40,000,000 minus the Revolving Credit Incremental Usage Amount; and (vi) to the extent reasonably requested by the Agent or Required Purchasers, receipt by the Agent and the Purchasers of (A) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate) other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Agent and the Required Purchasers and (B) reaffirmation agreements and/or such amendments to the Note Documents as may be reasonably requested by the Agent or the Required Purchasers in order to ensure that such Incremental Purchasers are provided with the benefit of the applicable Note Documents. (e) The terms, provisions and documentation of the Incremental Notes of any Class shall be as agreed between the Issuer and the applicable Incremental Purchasers providing such Incremental Commitments and, except as set forth in clause (f) below, sub-clauses (e)(i) through (e)(vi) below, and as otherwise set forth herein, to the extent not identical to any Class of Notes existing on the Incremental Note Closing Date, the terms and conditions of the Incremental Notes that are effective prior to the then Latest Maturity Date of the Notes shall not be more restrictive, taken as a whole, than those applicable to the Notes existing on the Incremental Note Closing Date, unless (x) this Agreement is amended (solely with the consent of the Issuer and with no consent required by any Purchaser, the Agent or any other Note Party) to conform to such more restrictive terms and conditions for the benefit of all such existing Notes or (y) such more restrictive terms and conditions are satisfactory to the Required Purchasers; provided that, notwithstanding the foregoing, in the case of a Note Increase, the terms, provisions and documentation of such Note Increase shall be identical (other than with respect to upfront fees, OID or similar fees) to the applicable Class of Notes being increased, in each case, as existing on the Incremental Note Closing Date. In any event the Incremental Notes: (i) shall rank pari passu in right of payment and security with the existing Notes, (ii) as of the Incremental Amendment Date, shall not have a final scheduled maturity date earlier than the then Latest Maturity Date, (iii) as of the Incremental Amendment Date, shall have a Weighted Average Life to Maturity not shorter than the remaining Weighted Average Life to Maturity of the existing Notes, (iv) shall have an interest rate, and subject to clauses (e)(ii) and (e)(iii) above, amortization determined by the Issuer and the applicable Incremental Purchasers; provided, that the interest rate and amortization for a Note Increase shall be the interest rate and amortization for the Class being increased, (v) shall have fees determined by the Issuer and the applicable Incremental Purchasers, and (vi) shall participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of the Notes hereunder. (f) the All-In Yield applicable to the Incremental Notes of each Class shall be determined by the Issuer and the applicable Incremental Purchasers and shall be set forth in each applicable Incremental Amendment; provided, however, that the All-In Yield applicable to such Incremental Notes shall not be greater than the applicable All-In Yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to any existing Class of Notes plus 50 basis points per annum unless the interest rate (together with, as provided in the proviso below, the EurocurrencyEurodollar Rate floor) with respect to such existing Notes is increased so as to cause the then applicable All-In Yield under this Agreement on such existing Notes to equal the All-In Yield then applicable to the Incremental Notes minus 50 basis points; provided, further, that any increase in All-In Yield to any existing Notes due to the application or imposition of a EurocurrencyEurodollar Rate floor on any Incremental Notes shall be effected solely through an increase in (or implementation of, as applicable) any EurocurrencyEurodollar Rate floor applicable to such existing Notes. (g) Commitments in respect of Incremental Notes shall become additional Commitments pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Note Documents, executed by the Issuer, each Incremental Purchaser providing such Commitments, and the Agent (at the written direction of the Required
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Incremental Notes. (a) The Issuer may at any time or from time to time after the earlier of (x) the first anniversary of the Closing Date and (y) the issuance of Delayed Draw Notes in an aggregate principal amount equal to the Delayed Draw Commitment as in effect on the Closing Date, by notice to the Agent and the Purchasers (an “Incremental Request”), request one or more new commitments which may be of the same Class as any outstanding Notes (a “Note Increase”) or a new Class of Notes (collectively with any Note Increase, the “Incremental Commitments”).
(b) On the applicable date (each, an “Incremental Note Closing Date”) specified in any Incremental Amendment (including through any Note Increase), subject to the satisfaction of the terms and conditions in this Section 2.7, (i) (A) each Incremental Purchaser of such Class shall purchase a Note from the Issuer (an “Incremental Note”) in an amount equal to its Incremental Commitment of such Class by wire transfer of immediately available funds as directed by the Issuer, (B) the Issuer will deliver to such Incremental Purchaser an Incremental Note issued in the name of such Incremental Purchaser and (C) each Incremental Purchaser of such Class shall become a Purchaser hereunder with respect to the Incremental Commitment of such Class and the Incremental Notes of such Class made pursuant thereto.
(c) Each Incremental Request from the Issuer pursuant to this Section 2.7 shall set forth the requested amount and proposed terms of the relevant Incremental Notes. Incremental Notes may be purchased by any existing Purchaser (but no existing Purchaser will have an obligation to make any Incremental Commitment) or by any Additional Purchaser (each such existing Purchaser or Additional Purchaser providing such Commitment, an “Incremental Purchaser”); provided, that each Purchaser holding Notes at the time of any such Incremental Request (or any of its Affiliates or Related Funds) shall be provided the right of first refusal to participate on a pro rata basis with all other Purchasers holdings Notes in any such Incremental Commitment (which right may be exercised by provision of written notice from any electing Purchaser (or its applicable Affiliate or Related Fund) to the Issuer with the amount of the Incremental Commitment to be provided (not exceeding such Purchaser’s pro rata share) no later than ten (10) Business Days after receipt of the applicable Incremental Request); provided, further, that (i) the Agent shall have acknowledged any Additional Purchaser’s providing such Incremental Commitment to the extent such acknowledgment, if any, would be required under Section 16.3(c) for a sale, assignment or transfer of Notes or Commitments, as applicable, to such Additional Purchaser (ii) with respect to Incremental Commitments, any Affiliated Purchaser providing an Incremental Commitment shall be subject to the same restrictions set forth in Section 16.3(d) as they would otherwise be subject to with respect to any sale, assignment or transfer to such Affiliated Purchaser of Notes or Commitments and (iii) neither KGH, Holdings, the Issuer or any of their Subsidiaries may provide Incremental Commitments or purchase Incremental Notes under this Section 2.7.
(d) The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the applicable date (which shall be no earlier than the date of such Incremental Amendment) specified therein (the “Incremental Amendment Date”) of each of the following conditions (such satisfaction to be evidenced by a certificate of the Chief Financial Officer or Controller of the Issuer delivered by the Issuer representing to the same), together with any other conditions set forth in the Incremental Amendment:
(i) after giving effect to such Incremental Commitments, the conditions of Section 8.3 shall be satisfied; provided, that, in connection with any Incremental Commitment, the primary purpose of which is to finance a Permitted Acquisition, such Incremental Amendment if agreed by the Incremental Purchasers may include a waiver in full or in part of the conditions set forth in clauses (a) and (b) (other than with respect to any Event of Default under Section 10.1 or Sections 10.7 or 10.8) of Section 8.3 and in clause (f) of the defined term “Permitted Acquisition”;
(ii) each Incremental Commitment shall be in an aggregate principal amount that is not less than $20,000,000 and shall be in an increment of $1,000,000 (provided, that such amount may be less than $20,000,000 if such amount represents all remaining availability under the limit set forth in Section 2.7(d)(iv));
(iii) (x) the Issuer shall be in pro forma compliance with the minimum Fixed Charge Coverage Ratio covenant (whether or not in effect) set forth in Section 6.5 hereof measured as of the end of the applicable Pro Forma Testing Period and calculated on a pro forma basis assuming that Indebtedness under the Incremental Notes had been incurred on the first day of such Pro Forma Testing Period and that all regularly scheduled interest and principal payments with respect to such Indebtedness had been paid during such Pro Forma Testing Period, and (y) the Issuer shall have a pro forma Leverage Ratio of not greater than 3.50 to 1.00, measured as of the end of the applicable Pro Forma Testing Period and calculated on a pro forma basis assuming that such Indebtedness under the Incremental Notes had been incurred on the first day of such Pro Forma Testing Period and that all regularly scheduled interest and principal payments with respect to such Indebtedness had been paid during such Pro Forma Testing Period;
(iv) receipt by Agent and the Purchasers of projections showing the projected calculation of the Fixed Charge Coverage Ratio for each four-quarter fiscal period of the Issuer completed over the twelve month period immediately following the Incremental Note Closing Date, such calculation giving pro forma effect to the incurrence of the Incremental Notes on such Incremental Note Closing Date;
(v) together with the Incremental Notes issued under such Incremental Amendment, the aggregate principal amount of Incremental Notes issued since the Closing Date does not exceed $40,000,000 minus the Revolving Credit Incremental Usage Amount; and
(vi) to the extent reasonably requested by the Agent or Required Purchasers, receipt by the Agent and the Purchasers of (A) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate) other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Agent and the Required Purchasers and (B) reaffirmation agreements and/or such amendments to the Note Documents as may be reasonably requested by the Agent or the Required Purchasers in order to ensure that such Incremental Purchasers are provided with the benefit of the applicable Note Documents.
(e) The terms, provisions and documentation of the Incremental Notes of any Class shall be as agreed between the Issuer and the applicable Incremental Purchasers providing such Incremental Commitments and, except as set forth in clause (f) below, sub-clauses (e)(i) through (e)(vi) below, and as otherwise set forth herein, to the extent not identical to any Class of Notes existing on the Incremental Note Closing Date, the terms and conditions of the Incremental Notes that are effective prior to the then Latest Maturity Date of the Notes shall not be more restrictive, taken as a whole, than those applicable to the Notes existing on the Incremental Note Closing Date, unless (x) this Agreement is amended (solely with the consent of the Issuer and with no consent required by any Purchaser, the Agent or any other Note Party) to conform to such more restrictive terms and conditions for the benefit of all such existing Notes or (y) such more restrictive terms and conditions are satisfactory to the Required Purchasers; provided that, notwithstanding the foregoing, in the case of a Note Increase, the terms, provisions and documentation of such Note Increase shall be identical (other than with respect to upfront fees, OID or similar fees) to the applicable Class of Notes being increased, in each case, as existing on the Incremental Note Closing Date. In any event the Incremental Notes:
(i) shall rank pari passu in right of payment and security with the existing Notes,
(ii) as of the Incremental Amendment Date, shall not have a final scheduled maturity date earlier than the then Latest Maturity Date,
(iii) as of the Incremental Amendment Date, shall have a Weighted Average Life to Maturity not shorter than the remaining Weighted Average Life to Maturity of the existing Notes,
(iv) shall have an interest rate, and subject to clauses (e)(ii) and (e)(iii) above, amortization determined by the Issuer and the applicable Incremental Purchasers; provided, that the interest rate and amortization for a Note Increase shall be the interest rate and amortization for the Class being increased,
(v) shall have fees determined by the Issuer and the applicable Incremental Purchasers, and
(vi) shall participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of the Notes hereunder.
(f) the All-In Yield applicable to the Incremental Notes of each Class shall be determined by the Issuer and the applicable Incremental Purchasers and shall be set forth in each applicable Incremental Amendment; provided, however, that the All-In Yield applicable to such Incremental Notes shall not be greater than the applicable All-In Yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to any existing Class of Notes plus 50 basis points per annum unless the interest rate (together with, as provided in the proviso below, the EurocurrencyEurodollar Eurocurrency Rate floor) with respect to such existing Notes is increased so as to cause the then applicable All-In Yield under this Agreement on such existing Notes to equal the All-In Yield then applicable to the Incremental Notes minus 50 basis points; provided, further, that any increase in All-In Yield to any existing Notes due to the application or imposition of a EurocurrencyEurodollar Eurocurrency Rate floor on any Incremental Notes shall be effected solely through an increase in (or implementation of, as applicable) any EurocurrencyEurodollar Eurocurrency Rate floor applicable to such existing Notes.
(g) Commitments in respect of Incremental Notes shall become additional Commitments pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Note Documents, executed by the Issuer, each Incremental Purchaser providing such Commitments, and the Agent (at the written direction of the RequiredRequired Purchasers). The Incremental Amendment may effect such amendments to this Agreement and the other Note Documents as may be necessary or appropriate, in the reasonable opinion of the Required Purchasers and the Issuer, to effect the provisions of this Section 2.7. The Issuer will use the proceeds of the sale of any Incremental Notes for any purpose not prohibited by this Agreement.
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Incremental Notes. (ai) The Issuer Any Borrower may at any time or from time to time after prior to the earlier First Amendment Effective Date, upon notice to the Administrative Agent, specifying in reasonable detail the proposed terms thereof, issue one or more series of secured notes ranking pari passu in right of security with, or junior in right of security with, the Facilities (such notes, collectively, “Incremental Notes”) in an aggregate amount not to exceed the Incremental Amount (at the time of issuance); provided, that any such issuance of Incremental Notes shall be in a minimum amount of the lesser of (x) the first anniversary of the Closing Date $25,000,000 and (y) the issuance of Delayed Draw Notes entire amount that may then be requested under this Section 2.15(e); and provided, further, that. Notwithstanding anything in an aggregate principal amount equal this Agreement to the Delayed Draw Commitment as contrary, in effect on the Closing Date, by notice no event shall any Incremental Notes be issued during a Collateral Suspension Period shall be unsecured and shall be subject to the Agent and the Purchasers (an “Incremental Request”), request one or more new commitments which may be of substantially the same Class provisions with respect to a Collateral Reinstatement Event as any outstanding Notes (a “Note Increase”) the Facilitieson or a new Class of Notes (collectively with any Note Increase, after the “Incremental Commitments”)First Amendment Effective Date.
(bii) On As a condition precedent to the applicable date (each, an “Incremental Note Closing Date”) specified in effectiveness of any Incremental Amendment (including through any Note IncreaseNotes pursuant to this Section 2.15(e), subject to the satisfaction of the terms and conditions in this Section 2.7, (i) (A) each the applicable Borrower shall deliver to the Administrative Agent a certificate dated as of the date of issuance of the Incremental Purchaser Notes signed by a Responsible Officer of such Class shall purchase a Note from Borrower certifying and attaching the Issuer (an “Incremental Note”) in an amount equal resolutions adopted by such Borrower approving or consenting to its Incremental Commitment the effectiveness of such Class by wire transfer of immediately available funds as directed by Incremental Notes, and certifying that the Issuerconditions precedent set forth in the following clauses (B) through (F) have been satisfied, (B) the Issuer will deliver to such Incremental Purchaser an Incremental Note issued in the name of such Incremental Purchaser and (C) each Incremental Purchaser of such Class shall become a Purchaser hereunder with respect to the Incremental Commitment of such Class and the Incremental Notes of such Class made pursuant thereto.
(c) Each Incremental Request from the Issuer pursuant to this Section 2.7 shall set forth the requested amount and proposed terms of the relevant Incremental Notes. Incremental Notes may be purchased by any existing Purchaser (but no existing Purchaser will have an obligation to make any Incremental Commitment) or by any Additional Purchaser (each such existing Purchaser or Additional Purchaser providing such Commitment, an “Incremental Purchaser”); provided, that each Purchaser holding Notes at the time of any such Incremental Request (or any of its Affiliates or Related Funds) shall be provided the right of first refusal to participate on a pro rata basis with all other Purchasers holdings Notes in any such Incremental Commitment (which right may be exercised by provision of written notice from any electing Purchaser (or its applicable Affiliate or Related Fund) to the Issuer with the amount of the Incremental Commitment to be provided (not exceeding such Purchaser’s pro rata share) no later than ten (10) Business Days after receipt of the applicable Incremental Request); provided, further, that (i) the Agent shall have acknowledged any Additional Purchaser’s providing such Incremental Commitment to the extent such acknowledgment, if any, would be required under Section 16.3(c) for a sale, assignment or transfer of Notes or Commitments, as applicable, to such Additional Purchaser (ii) with respect to Incremental Commitments, any Affiliated Purchaser providing an Incremental Commitment shall be subject to the same restrictions set forth in Section 16.3(d) as they would otherwise be subject to with respect to any sale, assignment or transfer to such Affiliated Purchaser of Notes or Commitments and (iii) neither KGH, Holdings, the Issuer or any of their Subsidiaries may provide Incremental Commitments or purchase Incremental Notes under this Section 2.7.
(d) The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the applicable date (which shall be no earlier than the date of such Incremental Amendment) specified therein (the “Incremental Amendment Date”) of each of the following conditions (such satisfaction to be evidenced by a certificate of the Chief Financial Officer or Controller of the Issuer delivered by the Issuer representing to the same), together with any other conditions set forth in the Incremental Amendment:
(i) after giving effect to such Incremental Commitments, the conditions of Section 8.3 shall be satisfied; provided, that, in connection with any Incremental Commitment, the primary purpose of which is to finance a Permitted Acquisition, such Incremental Amendment if agreed by the Incremental Purchasers may include a waiver in full or in part of the conditions set forth in clauses (a) and (b) (other than with respect to any Event of Default under Section 10.1 or Sections 10.7 or 10.8) of Section 8.3 and in clause (f) of the defined term “Permitted Acquisition”;
(ii) each Incremental Commitment shall be in an aggregate principal amount that is not less than $20,000,000 and shall be in an increment of $1,000,000 (provided, that such amount may be less than $20,000,000 if such amount represents all remaining availability under the limit set forth in Section 2.7(d)(iv));
(iii) (x) the Issuer shall be in pro forma compliance with the minimum Fixed Charge Coverage Ratio covenant (whether or not in effect) set forth in Section 6.5 hereof measured as of the end of the applicable Pro Forma Testing Period and calculated on a pro forma basis assuming that Indebtedness under the Incremental Notes had been incurred on the first day of such Pro Forma Testing Period and that all regularly scheduled interest and principal payments with respect to such Indebtedness had been paid during such Pro Forma Testing Period, and (y) the Issuer shall have a pro forma Leverage Ratio of not greater than 3.50 to 1.00, measured as of the end of the applicable Pro Forma Testing Period and calculated on a pro forma basis assuming that such Indebtedness under the Incremental Notes had been incurred on the first day of such Pro Forma Testing Period and that all regularly scheduled interest and principal payments with respect to such Indebtedness had been paid during such Pro Forma Testing Period;
(iv) receipt by Agent and the Purchasers of projections showing the projected calculation of the Fixed Charge Coverage Ratio for each four-quarter fiscal period of the Issuer completed over the twelve month period immediately following the Incremental Note Closing Date, such calculation giving pro forma effect to the incurrence of the Incremental Notes on such Incremental Note Closing Date;
(v) together with the Incremental Notes issued under such Incremental Amendment, the aggregate principal amount of Incremental Notes issued since the Closing Date does not exceed $40,000,000 minus the Revolving Credit Incremental Usage Amount; and
(vi) to the extent reasonably requested by the Agent or Required Purchasers, receipt by the Agent and the Purchasers of (A) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate) other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Agent and the Required Purchasers and (B) reaffirmation agreements and/or such amendments to the Note Documents as may be reasonably requested by the Agent or the Required Purchasers in order to ensure that such Incremental Purchasers are provided with the benefit of the applicable Note Documents.
(e) The terms, provisions and documentation of the Incremental Notes of any Class shall be as agreed between the Issuer and the applicable Incremental Purchasers providing such Incremental Commitments and, except as set forth in clause (f) below, sub-clauses (e)(i) through (e)(vi) below, and as otherwise set forth herein, to the extent not identical to any Class of Notes existing on the Incremental Note Closing Date, the terms and conditions of the Incremental Notes that are effective prior to the then Latest Maturity Date of the Notes shall not be more restrictive, taken as a whole, than those applicable to the Notes existing on the Incremental Note Closing Date, unless (x) this Agreement is amended (solely with the consent of the Issuer and with no consent required by any Purchaser, the Agent or any other Note Party) to conform to such more restrictive terms and conditions for the benefit of all such existing Notes or (y) such more restrictive terms and conditions are satisfactory to the Required Purchasers; provided that, notwithstanding the foregoing, in the case of a Note Increase, the terms, provisions and documentation of such Note Increase shall be identical (other than with respect to upfront fees, OID or similar fees) to the applicable Class of Notes being increased, in each case, as existing on the Incremental Note Closing Date. In any event the Incremental Notes:
(i) shall rank pari passu in right of payment and security with the existing Notes,
(ii) as of the Incremental Amendment Date, shall not have a final scheduled maturity date earlier than the then Latest Maturity Date,
(iii) as of the Incremental Amendment Date, shall have a Weighted Average Life to Maturity not shorter than the remaining Weighted Average Life to Maturity of the existing Notes,
(iv) shall have an interest rate, and subject to clauses (e)(ii) and (e)(iii) above, amortization determined by the Issuer and the applicable Incremental Purchasers; provided, that the interest rate and amortization for a Note Increase shall be the interest rate and amortization for the Class being increased,
(v) shall have fees determined by the Issuer and the applicable Incremental Purchasers, and
(vi) shall participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of the Notes hereunder.
(f) the All-In Yield applicable to the Incremental Notes of each Class shall be determined by the Issuer and the applicable Incremental Purchasers and shall be set forth in each applicable Incremental Amendment; provided, however, that the All-In Yield applicable to such Incremental Notes shall not be greater guaranteed by any person that is not a Guarantor, (C) such Incremental Notes will be secured only by the Collateral and, if initially secured, shall be subject to an intercreditor agreement on customary intercreditor terms to be reasonably acceptable to the Administrative Agent and Products, (D) such Incremental Notes shall have a final maturity no earlier than 91 days after the Latest Maturity Date, (E) the weighted average life to maturity of such Incremental Notes shall not be shorter than the applicable All-In Yield payable remaining weighted average life to maturity of any outstanding Term A-2 Loans at the time of the issuance of the Incremental Notes; provided that at Holdings’ election (in its sole discretion) Incremental Notes and/or Other Term Loans (pursuant to Section 2.15(b)(iii)) in a combined aggregate principal amount outstanding not to exceed $100,000,000 from time to time may have a weighted average life to maturity shorter than the terms remaining weighted average life to maturity of the Term A-2 Loans but no shorter than the remaining weighted average life to maturity of the Term A-1 Loans, and (F) such Incremental Notes shall not be subject to any mandatory redemption or prepayment provisions or rights (except (1) customary asset sale, recovery event and change of control provisions or (2) to the extent any such mandatory redemption or prepayment is required to be applied pro rata to the Term Loans and other Indebtedness that is secured on a pari passu basis with the Obligations).
(iii) The Lenders hereby authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with Products as amended through the date of such calculation with respect may be necessary in order to any existing Class of Notes plus 50 basis points per annum unless the interest rate (together with, as provided in the proviso below, the EurocurrencyEurodollar Rate floor) with respect to such existing Notes is increased so as to cause the then applicable All-In Yield under this Agreement on such existing Notes to equal the All-In Yield then applicable to the Incremental Notes minus 50 basis points; provided, further, that any increase in All-In Yield to any existing Notes due to the application or imposition of a EurocurrencyEurodollar Rate floor on secure any Incremental Notes shall with the Collateral and/or to make such technical amendments as may be effected solely through an increase necessary or appropriate in (or implementation of, as applicable) any EurocurrencyEurodollar Rate floor applicable to such existing Notes.
(g) Commitments in respect of Incremental Notes shall become additional Commitments pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Note Documents, executed by the Issuer, each Incremental Purchaser providing such Commitments, and the Agent (at the written direction reasonable opinion of the RequiredAdministrative Agent and Products in connection with the issuance of such Incremental Notes, in each case on terms consistent with this Section 2.15(e).
Appears in 1 contract
Sources: Credit Agreement (Rayonier Advanced Materials Inc.)
Incremental Notes. (ai) The Issuer Any Borrower may at any time or from time to time after prior to the earlier First Amendment Effective Date, upon notice to the Administrative Agent, specifying in reasonable detail the proposed terms thereof, issue one or more series of secured notes ranking pari passu in right of security with, or junior in right of security with, the Facilities (such notes, collectively, “Incremental Notes”) in an aggregate amount not to exceed the Incremental Amount (at the time of issuance); provided, that any such issuance of Incremental Notes shall be in a minimum amount of the lesser of (x) the first anniversary of the Closing Date $25,000,000 and (y) the issuance of Delayed Draw Notes entire amount that may then be requested under this Section 2.15(e). Notwithstanding anything in an aggregate principal amount equal this Agreement to the Delayed Draw Commitment as contrary, in effect no event shall any Incremental Notes be issued on or after the Closing First Amendment Effective Date, by notice to the Agent and the Purchasers (an “Incremental Request”), request one or more new commitments which may be of the same Class as any outstanding Notes (a “Note Increase”) or a new Class of Notes (collectively with any Note Increase, the “Incremental Commitments”).
(bii) On As a condition precedent to the applicable date (each, an “Incremental Note Closing Date”) specified in effectiveness of any Incremental Amendment (including through any Note IncreaseNotes pursuant to this Section 2.15(e), subject to the satisfaction of the terms and conditions in this Section 2.7, (i) (A) each the applicable Borrower shall deliver to the Administrative Agent a certificate dated as of the date of issuance of the Incremental Purchaser Notes signed by a Responsible Officer of such Class shall purchase a Note from Borrower certifying and attaching the Issuer (an “Incremental Note”) in an amount equal resolutions adopted by such Borrower approving or consenting to its Incremental Commitment the effectiveness of such Class by wire transfer of immediately available funds as directed by Incremental Notes, and certifying that the Issuerconditions precedent set forth in the following clauses (B) through (F) have been satisfied, (B) the Issuer will deliver to such Incremental Purchaser an Incremental Note issued in the name of such Incremental Purchaser and (C) each Incremental Purchaser of such Class shall become a Purchaser hereunder with respect to the Incremental Commitment of such Class and the Incremental Notes of such Class made pursuant thereto.
(c) Each Incremental Request from the Issuer pursuant to this Section 2.7 shall set forth the requested amount and proposed terms of the relevant Incremental Notes. Incremental Notes may be purchased by any existing Purchaser (but no existing Purchaser will have an obligation to make any Incremental Commitment) or by any Additional Purchaser (each such existing Purchaser or Additional Purchaser providing such Commitment, an “Incremental Purchaser”); provided, that each Purchaser holding Notes at the time of any such Incremental Request (or any of its Affiliates or Related Funds) shall be provided the right of first refusal to participate on a pro rata basis with all other Purchasers holdings Notes in any such Incremental Commitment (which right may be exercised by provision of written notice from any electing Purchaser (or its applicable Affiliate or Related Fund) to the Issuer with the amount of the Incremental Commitment to be provided (not exceeding such Purchaser’s pro rata share) no later than ten (10) Business Days after receipt of the applicable Incremental Request); provided, further, that (i) the Agent shall have acknowledged any Additional Purchaser’s providing such Incremental Commitment to the extent such acknowledgment, if any, would be required under Section 16.3(c) for a sale, assignment or transfer of Notes or Commitments, as applicable, to such Additional Purchaser (ii) with respect to Incremental Commitments, any Affiliated Purchaser providing an Incremental Commitment shall be subject to the same restrictions set forth in Section 16.3(d) as they would otherwise be subject to with respect to any sale, assignment or transfer to such Affiliated Purchaser of Notes or Commitments and (iii) neither KGH, Holdings, the Issuer or any of their Subsidiaries may provide Incremental Commitments or purchase Incremental Notes under this Section 2.7.
(d) The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the applicable date (which shall be no earlier than the date of such Incremental Amendment) specified therein (the “Incremental Amendment Date”) of each of the following conditions (such satisfaction to be evidenced by a certificate of the Chief Financial Officer or Controller of the Issuer delivered by the Issuer representing to the same), together with any other conditions set forth in the Incremental Amendment:
(i) after giving effect to such Incremental Commitments, the conditions of Section 8.3 shall be satisfied; provided, that, in connection with any Incremental Commitment, the primary purpose of which is to finance a Permitted Acquisition, such Incremental Amendment if agreed by the Incremental Purchasers may include a waiver in full or in part of the conditions set forth in clauses (a) and (b) (other than with respect to any Event of Default under Section 10.1 or Sections 10.7 or 10.8) of Section 8.3 and in clause (f) of the defined term “Permitted Acquisition”;
(ii) each Incremental Commitment shall be in an aggregate principal amount that is not less than $20,000,000 and shall be in an increment of $1,000,000 (provided, that such amount may be less than $20,000,000 if such amount represents all remaining availability under the limit set forth in Section 2.7(d)(iv));
(iii) (x) the Issuer shall be in pro forma compliance with the minimum Fixed Charge Coverage Ratio covenant (whether or not in effect) set forth in Section 6.5 hereof measured as of the end of the applicable Pro Forma Testing Period and calculated on a pro forma basis assuming that Indebtedness under the Incremental Notes had been incurred on the first day of such Pro Forma Testing Period and that all regularly scheduled interest and principal payments with respect to such Indebtedness had been paid during such Pro Forma Testing Period, and (y) the Issuer shall have a pro forma Leverage Ratio of not greater than 3.50 to 1.00, measured as of the end of the applicable Pro Forma Testing Period and calculated on a pro forma basis assuming that such Indebtedness under the Incremental Notes had been incurred on the first day of such Pro Forma Testing Period and that all regularly scheduled interest and principal payments with respect to such Indebtedness had been paid during such Pro Forma Testing Period;
(iv) receipt by Agent and the Purchasers of projections showing the projected calculation of the Fixed Charge Coverage Ratio for each four-quarter fiscal period of the Issuer completed over the twelve month period immediately following the Incremental Note Closing Date, such calculation giving pro forma effect to the incurrence of the Incremental Notes on such Incremental Note Closing Date;
(v) together with the Incremental Notes issued under such Incremental Amendment, the aggregate principal amount of Incremental Notes issued since the Closing Date does not exceed $40,000,000 minus the Revolving Credit Incremental Usage Amount; and
(vi) to the extent reasonably requested by the Agent or Required Purchasers, receipt by the Agent and the Purchasers of (A) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate) other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Agent and the Required Purchasers and (B) reaffirmation agreements and/or such amendments to the Note Documents as may be reasonably requested by the Agent or the Required Purchasers in order to ensure that such Incremental Purchasers are provided with the benefit of the applicable Note Documents.
(e) The terms, provisions and documentation of the Incremental Notes of any Class shall be as agreed between the Issuer and the applicable Incremental Purchasers providing such Incremental Commitments and, except as set forth in clause (f) below, sub-clauses (e)(i) through (e)(vi) below, and as otherwise set forth herein, to the extent not identical to any Class of Notes existing on the Incremental Note Closing Date, the terms and conditions of the Incremental Notes that are effective prior to the then Latest Maturity Date of the Notes shall not be more restrictive, taken as a whole, than those applicable to the Notes existing on the Incremental Note Closing Date, unless (x) this Agreement is amended (solely with the consent of the Issuer and with no consent required by any Purchaser, the Agent or any other Note Party) to conform to such more restrictive terms and conditions for the benefit of all such existing Notes or (y) such more restrictive terms and conditions are satisfactory to the Required Purchasers; provided that, notwithstanding the foregoing, in the case of a Note Increase, the terms, provisions and documentation of such Note Increase shall be identical (other than with respect to upfront fees, OID or similar fees) to the applicable Class of Notes being increased, in each case, as existing on the Incremental Note Closing Date. In any event the Incremental Notes:
(i) shall rank pari passu in right of payment and security with the existing Notes,
(ii) as of the Incremental Amendment Date, shall not have a final scheduled maturity date earlier than the then Latest Maturity Date,
(iii) as of the Incremental Amendment Date, shall have a Weighted Average Life to Maturity not shorter than the remaining Weighted Average Life to Maturity of the existing Notes,
(iv) shall have an interest rate, and subject to clauses (e)(ii) and (e)(iii) above, amortization determined by the Issuer and the applicable Incremental Purchasers; provided, that the interest rate and amortization for a Note Increase shall be the interest rate and amortization for the Class being increased,
(v) shall have fees determined by the Issuer and the applicable Incremental Purchasers, and
(vi) shall participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of the Notes hereunder.
(f) the All-In Yield applicable to the Incremental Notes of each Class shall be determined by the Issuer and the applicable Incremental Purchasers and shall be set forth in each applicable Incremental Amendment; provided, however, that the All-In Yield applicable to such Incremental Notes shall not be greater than guaranteed by any person that is not a Guarantor, (C) such Incremental Notes will be secured only by the applicable All-In Yield payable pursuant Collateral and, if initially secured, shall be subject to an intercreditor agreement on customary intercreditor terms to be reasonably acceptable to the terms of this Agreement as amended through the date of Administrative Agent and Products, (D) such calculation with respect to any existing Class of Notes plus 50 basis points per annum unless the interest rate (together with, as provided in the proviso below, the EurocurrencyEurodollar Rate floor) with respect to such existing Notes is increased so as to cause the then applicable All-In Yield under this Agreement on such existing Notes to equal the All-In Yield then applicable to the Incremental Notes minus 50 basis points; provided, further, that any increase in All-In Yield to any existing Notes due to the application or imposition of a EurocurrencyEurodollar Rate floor on any Incremental Notes shall be effected solely through an increase in have a final maturity no earlier than 91 days after the Latest Maturity Date, (or implementation of, as applicableE) any EurocurrencyEurodollar Rate floor applicable the weighted average life to maturity of such existing Notes.
(g) Commitments in respect of Incremental Notes shall become additional Commitments not be shorter than the remaining weighted average life to maturity of any outstanding Term A-2 Loans at the time of the issuance of the Incremental Notes; provided that at Holdings’ election (in its sole discretion) Incremental Notes and/or Other Term Loans (pursuant to an amendment Section 2.15(b)(iii)) in a combined aggregate principal amount outstanding not to exceed $100,000,000 from time to time may have a weighted average life to maturity shorter than the remaining weighted average life to maturity of the Term A-2 Loans but no shorter than the remaining weighted average life to maturity of the Term A-1 Loans, and (an “F) such Incremental Amendment”Notes shall not be subject to any mandatory redemption or prepayment provisions or rights (except (1) customary asset sale, recovery event and change of control provisions or (2) to this Agreement and, as appropriate, the extent any such mandatory redemption or prepayment is required to be applied pro rata to the Term Loans and other Note Documents, executed by Indebtedness that is secured on a pari passu basis with the Issuer, each Incremental Purchaser providing such Commitments, and the Agent (at the written direction of the RequiredObligations).
Appears in 1 contract
Sources: Credit Agreement (Rayonier Advanced Materials Inc.)
Incremental Notes. (ai) The Issuer Any Borrower may at any time or from time to time, upon notice to the Administrative Agent, specifying in reasonable detail the proposed terms thereof, issue one or more series of secured notes ranking pari passu in right of security with, or junior in right of security with, the Facilities (such notes, collectively, “Incremental Notes”) in an aggregate amount not to exceed the Incremental Amount (at the time after of issuance); provided, that any such issuance of Incremental Notes shall be in a minimum amount of the earlier lesser of (x) the first anniversary of the Closing Date $25,000,000 and (y) the issuance of Delayed Draw Notes in an aggregate principal entire amount equal to the Delayed Draw Commitment as in effect on the Closing Date, by notice to the Agent and the Purchasers (an “Incremental Request”), request one or more new commitments which that may then be of the same Class as any outstanding Notes (a “Note Increase”) or a new Class of Notes (collectively with any Note Increase, the “Incremental Commitments”).
(b) On the applicable date (each, an “Incremental Note Closing Date”) specified in any Incremental Amendment (including through any Note Increase), subject to the satisfaction of the terms and conditions in requested under this Section 2.7, (i) (A) each Incremental Purchaser of such Class shall purchase a Note from the Issuer (an “Incremental Note”) in an amount equal to its Incremental Commitment of such Class by wire transfer of immediately available funds as directed by the Issuer, (B) the Issuer will deliver to such Incremental Purchaser an Incremental Note issued in the name of such Incremental Purchaser and (C) each Incremental Purchaser of such Class shall become a Purchaser hereunder with respect to the Incremental Commitment of such Class and the Incremental Notes of such Class made pursuant thereto.
(c) Each Incremental Request from the Issuer pursuant to this Section 2.7 shall set forth the requested amount and proposed terms of the relevant Incremental Notes. Incremental Notes may be purchased by any existing Purchaser (but no existing Purchaser will have an obligation to make any Incremental Commitment) or by any Additional Purchaser (each such existing Purchaser or Additional Purchaser providing such Commitment, an “Incremental Purchaser”2.15(e); provided, that each Purchaser holding Notes at the time of any such Incremental Request (or any of its Affiliates or Related Funds) shall be provided the right of first refusal to participate on a pro rata basis with all other Purchasers holdings Notes in any such Incremental Commitment (which right may be exercised by provision of written notice from any electing Purchaser (or its applicable Affiliate or Related Fund) to the Issuer with the amount of the Incremental Commitment to be provided (not exceeding such Purchaser’s pro rata share) no later than ten (10) Business Days after receipt of the applicable Incremental Request); and provided, further, that (i) the Agent any Incremental Notes issued during a Collateral Suspension Period shall have acknowledged any Additional Purchaser’s providing such Incremental Commitment to the extent such acknowledgment, if any, would be required under Section 16.3(c) for a sale, assignment or transfer of Notes or Commitments, as applicable, to such Additional Purchaser (ii) with respect to Incremental Commitments, any Affiliated Purchaser providing an Incremental Commitment unsecured and shall be subject to substantially the same restrictions set forth in Section 16.3(d) as they would otherwise be subject to provisions with respect to any sale, assignment or transfer to such Affiliated Purchaser of Notes or Commitments and (iii) neither KGH, Holdings, a Collateral Reinstatement Event as the Issuer or any of their Subsidiaries may provide Incremental Commitments or purchase Incremental Notes under this Section 2.7Facilities.
(dii) The As a condition precedent to the effectiveness of any Incremental AmendmentNotes pursuant to this Section 2.15(e), and (A) the Incremental Commitments thereunder, applicable Borrower shall be subject deliver to the satisfaction on the applicable date (which shall be no earlier than Administrative Agent a certificate dated as of the date of issuance of the Incremental Notes signed by a Responsible Officer of such Borrower certifying and attaching the resolutions adopted by such Borrower approving or consenting to the effectiveness of such Incremental Amendment) specified therein (Notes, and certifying that the “Incremental Amendment Date”) of each of the following conditions (such satisfaction to be evidenced by a certificate of the Chief Financial Officer or Controller of the Issuer delivered by the Issuer representing to the same), together with any other conditions precedent set forth in the Incremental Amendment:
(i) after giving effect to such Incremental Commitments, the conditions of Section 8.3 shall be satisfied; provided, that, in connection with any Incremental Commitment, the primary purpose of which is to finance a Permitted Acquisition, such Incremental Amendment if agreed by the Incremental Purchasers may include a waiver in full or in part of the conditions set forth in following clauses (a) and (b) (other than with respect to any Event of Default under Section 10.1 or Sections 10.7 or 10.8) of Section 8.3 and in clause (f) of the defined term “Permitted Acquisition”;
(ii) each Incremental Commitment shall be in an aggregate principal amount that is not less than $20,000,000 and shall be in an increment of $1,000,000 (provided, that such amount may be less than $20,000,000 if such amount represents all remaining availability under the limit set forth in Section 2.7(d)(iv));
(iii) (x) the Issuer shall be in pro forma compliance with the minimum Fixed Charge Coverage Ratio covenant (whether or not in effect) set forth in Section 6.5 hereof measured as of the end of the applicable Pro Forma Testing Period and calculated on a pro forma basis assuming that Indebtedness under the Incremental Notes had been incurred on the first day of such Pro Forma Testing Period and that all regularly scheduled interest and principal payments with respect to such Indebtedness had been paid during such Pro Forma Testing Period, and (y) the Issuer shall have a pro forma Leverage Ratio of not greater than 3.50 to 1.00, measured as of the end of the applicable Pro Forma Testing Period and calculated on a pro forma basis assuming that such Indebtedness under the Incremental Notes had been incurred on the first day of such Pro Forma Testing Period and that all regularly scheduled interest and principal payments with respect to such Indebtedness had been paid during such Pro Forma Testing Period;
(iv) receipt by Agent and the Purchasers of projections showing the projected calculation of the Fixed Charge Coverage Ratio for each four-quarter fiscal period of the Issuer completed over the twelve month period immediately following the Incremental Note Closing Date, such calculation giving pro forma effect to the incurrence of the Incremental Notes on such Incremental Note Closing Date;
(v) together with the Incremental Notes issued under such Incremental Amendment, the aggregate principal amount of Incremental Notes issued since the Closing Date does not exceed $40,000,000 minus the Revolving Credit Incremental Usage Amount; and
(vi) to the extent reasonably requested by the Agent or Required Purchasers, receipt by the Agent and the Purchasers of (A) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate) other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Agent and the Required Purchasers and (B) reaffirmation agreements and/or such amendments to the Note Documents as may be reasonably requested by the Agent or the Required Purchasers in order to ensure that such Incremental Purchasers are provided with the benefit of the applicable Note Documents.
(e) The terms, provisions and documentation of the Incremental Notes of any Class shall be as agreed between the Issuer and the applicable Incremental Purchasers providing such Incremental Commitments and, except as set forth in clause (f) below, sub-clauses (e)(i) through (e)(viF) belowhave been satisfied, and as otherwise set forth herein, to the extent not identical to any Class of Notes existing on the Incremental Note Closing Date, the terms and conditions of the Incremental Notes that are effective prior to the then Latest Maturity Date of the Notes shall not be more restrictive, taken as a whole, than those applicable to the Notes existing on the Incremental Note Closing Date, unless (xB) this Agreement is amended (solely with the consent of the Issuer and with no consent required by any Purchaser, the Agent or any other Note Party) to conform to such more restrictive terms and conditions for the benefit of all such existing Notes or (y) such more restrictive terms and conditions are satisfactory to the Required Purchasers; provided that, notwithstanding the foregoing, in the case of a Note Increase, the terms, provisions and documentation of such Note Increase shall be identical (other than with respect to upfront fees, OID or similar fees) to the applicable Class of Notes being increased, in each case, as existing on the Incremental Note Closing Date. In any event the Incremental Notes:
(i) shall rank pari passu in right of payment and security with the existing Notes,
(ii) as of the Incremental Amendment Date, shall not have a final scheduled maturity date earlier than the then Latest Maturity Date,
(iii) as of the Incremental Amendment Date, shall have a Weighted Average Life to Maturity not shorter than the remaining Weighted Average Life to Maturity of the existing Notes,
(iv) shall have an interest rate, and subject to clauses (e)(ii) and (e)(iii) above, amortization determined by the Issuer and the applicable Incremental Purchasers; provided, that the interest rate and amortization for a Note Increase shall be the interest rate and amortization for the Class being increased,
(v) shall have fees determined by the Issuer and the applicable Incremental Purchasers, and
(vi) shall participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of the Notes hereunder.
(f) the All-In Yield applicable to the Incremental Notes of each Class shall be determined by the Issuer and the applicable Incremental Purchasers and shall be set forth in each applicable Incremental Amendment; provided, however, that the All-In Yield applicable to such Incremental Notes shall not be greater guaranteed by any person that is not a Guarantor, (C) such Incremental Notes will be secured only by the Collateral and, if initially secured, shall be subject to an intercreditor agreement on customary intercreditor terms to be reasonably acceptable to the Administrative Agent and Products, (D) such Incremental Notes shall have a final maturity no earlier than 91 days after the Latest Maturity Date, (E) the weighted average life to maturity of such Incremental Notes shall not be shorter than the applicable All-In Yield payable remaining weighted average life to maturity of any outstanding Term A-2 Loans at the time of the issuance of the Incremental Notes; provided that at Holdings’ election (in its sole discretion) Incremental Notes and/or Other Term Loans (pursuant to Section 2.15(b)(iii)) in a combined aggregate principal amount outstanding not to exceed $100,000,000 from time to time may have a weighted average life to maturity shorter than the terms remaining weighted average life to maturity of the Term A-2 Loans but no shorter than the remaining weighted average life to maturity of the Term A-1 Loans, and (F) such Incremental Notes shall not be subject to any mandatory redemption or prepayment provisions or rights (except (1) customary asset sale, recovery event and change of control provisions or (2) to the extent any such mandatory redemption or prepayment is required to be applied pro rata to the Term Loans and other Indebtedness that is secured on a pari passu basis with the Obligations).
(iii) The Lenders hereby authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with Products as amended through the date of such calculation with respect may be necessary in order to any existing Class of Notes plus 50 basis points per annum unless the interest rate (together with, as provided in the proviso below, the EurocurrencyEurodollar Rate floor) with respect to such existing Notes is increased so as to cause the then applicable All-In Yield under this Agreement on such existing Notes to equal the All-In Yield then applicable to the Incremental Notes minus 50 basis points; provided, further, that any increase in All-In Yield to any existing Notes due to the application or imposition of a EurocurrencyEurodollar Rate floor on secure any Incremental Notes shall with the Collateral and/or to make such technical amendments as may be effected solely through an increase necessary or appropriate in (or implementation of, as applicable) any EurocurrencyEurodollar Rate floor applicable to such existing Notes.
(g) Commitments in respect of Incremental Notes shall become additional Commitments pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Note Documents, executed by the Issuer, each Incremental Purchaser providing such Commitments, and the Agent (at the written direction reasonable opinion of the RequiredAdministrative Agent and Products in connection with the issuance of such Incremental Notes, in each case on terms consistent with this Section 2.15(e).
Appears in 1 contract
Sources: Restatement Agreement (Rayonier Advanced Materials Inc.)
Incremental Notes. (a) The Issuer Borrower may at any time or from time to time after time, upon written notice to the earlier Administrative Agent, specifying in reasonable detail the proposed terms thereof, request to issue one or more series of senior secured or senior unsecured, senior subordinated or subordinated notes (xwhich notes, if secured, may either have the same Lien priority as the Obligations or may be secured by a Lien ranking junior to the Lien securing the Obligations) the first anniversary of the Closing Date and (ysuch notes, collectively, “Incremental Notes”) the issuance of Delayed Draw Notes in an aggregate principal amount, together with the aggregate amount equal to the Delayed Draw Commitment as in effect on the Closing Date, by notice to the Agent and the Purchasers (an “Incremental Request”), request one or more new commitments which may be of the same Class as any outstanding Notes (a “Note Increase”) or a new Class of Notes (collectively with any Note Increase, the “Incremental Commitments”, not to exceed the Incremental Amount (at the time of issuance).
(b) On As conditions precedent to the applicable issuance of any Incremental Notes pursuant to this Section:
(i) the Borrower shall deliver to the Administrative Agent a certificate dated as of the date of issuance of such Incremental Notes (each, an “Incremental Note Closing Notes Effective Date”) specified in any Incremental Amendment signed by a Responsible Officer of the Borrower, certifying and attaching the resolutions adopted by the Borrower (including through any Note Increase), subject to the satisfaction of extent the terms and conditions in this Section 2.7, (i) (A) each Incremental Purchaser of such Class shall purchase a Note from the Issuer (Borrower is an “Incremental Note”) in an amount equal to its Incremental Commitment of such Class by wire transfer of immediately available funds as directed by the Issuer, (B) the Issuer will deliver to such Incremental Purchaser an Incremental Note issued in the name issuer of such Incremental Purchaser and (CNotes) each Incremental Purchaser of such Class shall become a Purchaser hereunder with respect approving or consenting to the Incremental Commitment of such Class and the Incremental Notes of such Class made pursuant thereto.
(c) Each Incremental Request from the Issuer pursuant to this Section 2.7 shall set forth the requested amount and proposed terms of the relevant Incremental Notes. Incremental Notes may be purchased by any existing Purchaser (but no existing Purchaser will have an obligation to make any Incremental Commitment) or by any Additional Purchaser (each such existing Purchaser or Additional Purchaser providing such Commitment, an “Incremental Purchaser”); provided, that each Purchaser holding Notes at the time of any such Incremental Request (or any of its Affiliates or Related Funds) shall be provided the right of first refusal to participate on a pro rata basis with all other Purchasers holdings Notes in any such Incremental Commitment (which right may be exercised by provision of written notice from any electing Purchaser (or its applicable Affiliate or Related Fund) to the Issuer with the amount of the Incremental Commitment to be provided (not exceeding such Purchaser’s pro rata share) no later than ten (10) Business Days after receipt of the applicable Incremental Request); provided, further, that (i) the Agent shall have acknowledged any Additional Purchaser’s providing such Incremental Commitment to the extent such acknowledgment, if any, would be required under Section 16.3(c) for a sale, assignment or transfer of Notes or Commitments, as applicable, to such Additional Purchaser (ii) with respect to Incremental Commitments, any Affiliated Purchaser providing an Incremental Commitment shall be subject to the same restrictions set forth in Section 16.3(d) as they would otherwise be subject to with respect to any sale, assignment or transfer to such Affiliated Purchaser of Notes or Commitments and (iii) neither KGH, Holdings, the Issuer or any of their Subsidiaries may provide Incremental Commitments or purchase Incremental Notes under this Section 2.7.
(d) The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the applicable date (which shall be no earlier than the date issuance of such Incremental Amendment) specified therein (Notes, and certifying that the “Incremental Amendment Date”) of each of the following conditions (such satisfaction to be evidenced by a certificate of the Chief Financial Officer or Controller of the Issuer delivered by the Issuer representing to the same), together with any other conditions precedent set forth in the Incremental Amendment:following clauses (ii) through (v) have been satisfied;
(iii) such Incremental Notes shall not be guaranteed by any Person that is not a Guarantor;
(iii) such Incremental Notes will be unsecured or secured only by Property constituting the Collateral and subject to intercreditor arrangements reasonably acceptable to the Administrative Agent and the Borrower;
(iv) such Incremental Notes shall have a final maturity no earlier than 91 days after giving effect the Latest Term Maturity Date;
(v) the Weighted Average Life to Maturity of such Incremental Notes shall not be shorter than that of any tranche of Term Loans;
(vi) the covenants, terms and conditions and events of default applicable to such Incremental Commitments, the conditions of Section 8.3 Notes shall be satisfied; provided, that, in connection with any Incremental Commitment, the primary purpose of which is to finance a Permitted Acquisition, such Incremental Amendment if agreed by the Incremental Purchasers may include a waiver in full or in part of the conditions set forth in clauses (a) and (b) no more restrictive (other than with respect to any Event pricing, optional prepayment or redemption terms), when taken as a whole, than the covenants, terms and conditions and Events of Default under Section 10.1 or Sections 10.7 or 10.8) of Section 8.3 and in clause the Loan Documents (f) of the defined term “Permitted Acquisition”;
(ii) each Incremental Commitment shall be in an aggregate principal amount that is not less than $20,000,000 and shall be in an increment of $1,000,000 (provided, that such amount may be less than $20,000,000 if such amount represents all remaining availability under the limit set forth in Section 2.7(d)(iv));
(iii) (x) the Issuer shall be in pro forma compliance with the minimum Fixed Charge Coverage Ratio covenant (whether or not in effect) set forth in Section 6.5 hereof measured as of the end of the except for provisions applicable Pro Forma Testing Period and calculated on a pro forma basis assuming that Indebtedness under the Incremental Notes had been incurred on the first day of such Pro Forma Testing Period and that all regularly scheduled interest and principal payments with respect only to such Indebtedness had been paid during such Pro Forma Testing Period, and (y) the Issuer shall have a pro forma Leverage Ratio of not greater than 3.50 to 1.00, measured as of the end of the applicable Pro Forma Testing Period and calculated on a pro forma basis assuming that such Indebtedness under the Incremental Notes had been incurred on the first day of such Pro Forma Testing Period and that all regularly scheduled interest and principal payments with respect to such Indebtedness had been paid during such Pro Forma Testing Period;
(iv) receipt by Agent and the Purchasers of projections showing the projected calculation of the Fixed Charge Coverage Ratio for each four-quarter fiscal period of the Issuer completed over the twelve month period immediately periods following the Incremental Note Closing Term Maturity Date) unless the Borrower shall make such covenants, such calculation giving pro forma effect terms and conditions applicable to the incurrence of the Incremental Notes on such Incremental Note Closing Date;
(v) together with the Incremental Notes issued under such Incremental Amendment, the aggregate principal amount of Incremental Notes issued since the Closing Date does not exceed $40,000,000 minus the Revolving Credit Incremental Usage AmountLoans pursuant to reasonably acceptable documentation to that effect; and
(vivii) such Incremental Notes 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 pro rata to the Term Loans and other Indebtedness that is secured on a pari passu basis with the Obligations.
(c) The issuance of any Incremental Notes shall also be subject, to the extent reasonably requested by the Agent or Required PurchasersAdministrative Agent, to receipt by the Administrative Agent and the Purchasers of (A) customary legal opinions, board resolutions and resolutions, officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate) other than changes to such legal opinions resulting from a change in lawand/or reaffirmation agreements, change in fact including any supplements or change to counsel’s form of opinion reasonably satisfactory amendments to the Security Documents providing for such Incremental Notes to be secured thereby. The Lenders hereby authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrower as may be necessary in order to secure any Incremental Notes with the Collateral and/or to make such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Required Purchasers and (B) reaffirmation agreements and/or such amendments to Borrower in connection with the Note Documents as may be reasonably requested by the Agent or the Required Purchasers in order to ensure that issuance of such Incremental Purchasers are provided with the benefit of the applicable Note Documents.
(e) The terms, provisions and documentation of the Incremental Notes of any Class shall be as agreed between the Issuer and the applicable Incremental Purchasers providing such Incremental Commitments and, except as set forth in clause (f) below, sub-clauses (e)(i) through (e)(vi) below, and as otherwise set forth herein, to the extent not identical to any Class of Notes existing on the Incremental Note Closing Date, the terms and conditions of the Incremental Notes that are effective prior to the then Latest Maturity Date of the Notes shall not be more restrictive, taken as a whole, than those applicable to the Notes existing on the Incremental Note Closing Date, unless (x) this Agreement is amended (solely with the consent of the Issuer and with no consent required by any Purchaser, the Agent or any other Note Party) to conform to such more restrictive terms and conditions for the benefit of all such existing Notes or (y) such more restrictive terms and conditions are satisfactory to the Required Purchasers; provided that, notwithstanding the foregoing, in the case of a Note Increase, the terms, provisions and documentation of such Note Increase shall be identical (other than with respect to upfront fees, OID or similar fees) to the applicable Class of Notes being increasedNotes, in each case, as existing case on the Incremental Note Closing Date. In any event the Incremental Notes:
(i) shall rank pari passu in right of payment and security terms consistent with the existing Notes,
(ii) as of the Incremental Amendment Date, shall not have a final scheduled maturity date earlier than the then Latest Maturity Date,
(iii) as of the Incremental Amendment Date, shall have a Weighted Average Life to Maturity not shorter than the remaining Weighted Average Life to Maturity of the existing Notes,
(iv) shall have an interest rate, and subject to clauses (e)(ii) and (e)(iii) above, amortization determined by the Issuer and the applicable Incremental Purchasers; provided, that the interest rate and amortization for a Note Increase shall be the interest rate and amortization for the Class being increased,
(v) shall have fees determined by the Issuer and the applicable Incremental Purchasers, and
(vi) shall participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of the Notes hereunderthis Section 2.26.
(f) the All-In Yield applicable to the Incremental Notes of each Class shall be determined by the Issuer and the applicable Incremental Purchasers and shall be set forth in each applicable Incremental Amendment; provided, however, that the All-In Yield applicable to such Incremental Notes shall not be greater than the applicable All-In Yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to any existing Class of Notes plus 50 basis points per annum unless the interest rate (together with, as provided in the proviso below, the EurocurrencyEurodollar Rate floor) with respect to such existing Notes is increased so as to cause the then applicable All-In Yield under this Agreement on such existing Notes to equal the All-In Yield then applicable to the Incremental Notes minus 50 basis points; provided, further, that any increase in All-In Yield to any existing Notes due to the application or imposition of a EurocurrencyEurodollar Rate floor on any Incremental Notes shall be effected solely through an increase in (or implementation of, as applicable) any EurocurrencyEurodollar Rate floor applicable to such existing Notes.
(g) Commitments in respect of Incremental Notes shall become additional Commitments pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Note Documents, executed by the Issuer, each Incremental Purchaser providing such Commitments, and the Agent (at the written direction of the Required
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Incremental Notes. (ai) The Issuer Any Borrower may at any time or from time to time after the earlier of (x) the first anniversary of the Closing Date and (y) the issuance of Delayed Draw Notes in an aggregate principal amount equal to the Delayed Draw Commitment as in effect on the Closing Datetime, by upon notice to the Agent and Agent, specifying in reasonable detail the Purchasers (an “Incremental Request”)proposed terms thereof, request issue one or more new commitments which may be series of the same Class as any outstanding Notes (a “Note Increase”) or a new Class of Notes (collectively with any Note Increase, the “Incremental Commitments”).
(b) On the applicable date (each, an “Incremental Note Closing Date”) specified in any Incremental Amendment (including through any Note Increase), subject to the satisfaction of the terms and conditions in this Section 2.7, (i) (A) each Incremental Purchaser of such Class shall purchase a Note from the Issuer (an “Incremental Note”) in an amount equal to its Incremental Commitment of such Class by wire transfer of immediately available funds as directed by the Issuer, (B) the Issuer will deliver to such Incremental Purchaser an Incremental Note issued in the name of such Incremental Purchaser and (C) each Incremental Purchaser of such Class shall become a Purchaser hereunder with respect to the Incremental Commitment of such Class and the Incremental Notes of such Class made pursuant thereto.
(c) Each Incremental Request from the Issuer pursuant to this Section 2.7 shall set forth the requested amount and proposed terms of the relevant Incremental Notes. Incremental Notes may be purchased by any existing Purchaser (but no existing Purchaser will have an obligation to make any Incremental Commitment) or by any Additional Purchaser (each such existing Purchaser or Additional Purchaser providing such Commitment, an “Incremental Purchaser”); provided, that each Purchaser holding Notes at the time of any such Incremental Request (or any of its Affiliates or Related Funds) shall be provided the right of first refusal to participate on a pro rata basis with all other Purchasers holdings Notes in any such Incremental Commitment (which right may be exercised by provision of written notice from any electing Purchaser (or its applicable Affiliate or Related Fund) to the Issuer with the amount of the Incremental Commitment to be provided (not exceeding such Purchaser’s pro rata share) no later than ten (10) Business Days after receipt of the applicable Incremental Request); provided, further, that (i) the Agent shall have acknowledged any Additional Purchaser’s providing such Incremental Commitment to the extent such acknowledgment, if any, would be required under Section 16.3(c) for a sale, assignment or transfer of Notes or Commitments, as applicable, to such Additional Purchaser (ii) with respect to Incremental Commitments, any Affiliated Purchaser providing an Incremental Commitment shall be subject to the same restrictions set forth in Section 16.3(d) as they would otherwise be subject to with respect to any sale, assignment or transfer to such Affiliated Purchaser of Notes or Commitments and (iii) neither KGH, Holdings, the Issuer or any of their Subsidiaries may provide Incremental Commitments or purchase Incremental Notes under this Section 2.7.
(d) The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the applicable date (which shall be no earlier than the date of such Incremental Amendment) specified therein (the “Incremental Amendment Date”) of each of the following conditions (such satisfaction to be evidenced by a certificate of the Chief Financial Officer or Controller of the Issuer delivered by the Issuer representing to the same), together with any other conditions set forth in the Incremental Amendment:
(i) after giving effect to such Incremental Commitments, the conditions of Section 8.3 shall be satisfied; provided, that, in connection with any Incremental Commitment, the primary purpose of which is to finance a Permitted Acquisition, such Incremental Amendment if agreed by the Incremental Purchasers may include a waiver in full or in part of the conditions set forth in clauses (a) and (b) (other than with respect to any Event of Default under Section 10.1 or Sections 10.7 or 10.8) of Section 8.3 and in clause (f) of the defined term “Permitted Acquisition”;
(ii) each Incremental Commitment shall be in an aggregate principal amount that is not less than $20,000,000 and shall be in an increment of $1,000,000 (provided, that such amount may be less than $20,000,000 if such amount represents all remaining availability under the limit set forth in Section 2.7(d)(iv));
(iii) (x) the Issuer shall be in pro forma compliance with the minimum Fixed Charge Coverage Ratio covenant (whether or not in effect) set forth in Section 6.5 hereof measured as of the end of the applicable Pro Forma Testing Period and calculated on a pro forma basis assuming that Indebtedness under the Incremental Notes had been incurred on the first day of such Pro Forma Testing Period and that all regularly scheduled interest and principal payments with respect to such Indebtedness had been paid during such Pro Forma Testing Period, and (y) the Issuer shall have a pro forma Leverage Ratio of not greater than 3.50 to 1.00, measured as of the end of the applicable Pro Forma Testing Period and calculated on a pro forma basis assuming that such Indebtedness under the Incremental Notes had been incurred on the first day of such Pro Forma Testing Period and that all regularly scheduled interest and principal payments with respect to such Indebtedness had been paid during such Pro Forma Testing Period;
(iv) receipt by Agent and the Purchasers of projections showing the projected calculation of the Fixed Charge Coverage Ratio for each four-quarter fiscal period of the Issuer completed over the twelve month period immediately following the Incremental Note Closing Date, such calculation giving pro forma effect to the incurrence of the Incremental Notes on such Incremental Note Closing Date;
(v) together with the Incremental Notes issued under such Incremental Amendment, the aggregate principal amount of Incremental Notes issued since the Closing Date does not exceed $40,000,000 minus the Revolving Credit Incremental Usage Amount; and
(vi) to the extent reasonably requested by the Agent or Required Purchasers, receipt by the Agent and the Purchasers of (A) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate) other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Agent and the Required Purchasers and (B) reaffirmation agreements and/or such amendments to the Note Documents as may be reasonably requested by the Agent or the Required Purchasers in order to ensure that such Incremental Purchasers are provided with the benefit of the applicable Note Documents.
(e) The terms, provisions and documentation of the Incremental Notes of any Class shall be as agreed between the Issuer and the applicable Incremental Purchasers providing such Incremental Commitments and, except as set forth in clause (f) below, sub-clauses (e)(i) through (e)(vi) below, and as otherwise set forth herein, to the extent not identical to any Class of Notes existing on the Incremental Note Closing Date, the terms and conditions of the Incremental Notes that are effective prior to the then Latest Maturity Date of the Notes shall not be more restrictive, taken as a whole, than those applicable to the Notes existing on the Incremental Note Closing Date, unless (x) this Agreement is amended (solely with the consent of the Issuer and with no consent required by any Purchaser, the Agent or any other Note Party) to conform to such more restrictive terms and conditions for the benefit of all such existing Notes or (y) such more restrictive terms and conditions are satisfactory to the Required Purchasers; provided that, notwithstanding the foregoing, in the case of a Note Increase, the terms, provisions and documentation of such Note Increase shall be identical (other than with respect to upfront fees, OID or similar fees) to the applicable Class of Notes being increased, in each case, as existing on the Incremental Note Closing Date. In any event the Incremental Notes:
(i) shall rank secured notes ranking pari passu in right of payment and security with the existing Facilities (such notes, collectively, “Incremental Notes,”) in an aggregate amount not to exceed the Incremental Amount (which shall be in minimum increments of $5,000,000 and a minimum amount of $25,000,000 or equal to the remaining Incremental Amount).
(ii) Each issuance of Incremental Notes shall be on the terms set forth in this clause (ii), and as a condition precedent to the effectiveness of such issuance the Company shall have delivered to the Agent a certificate dated as of the Incremental Amendment Date, shall not have a final scheduled maturity date earlier than the then Latest Maturity Date,
(iii) as of issuance of the Incremental Amendment Date, shall have Notes signed by a Weighted Average Life to Maturity not shorter than the remaining Weighted Average Life to Maturity Responsible Officer of the existing Notes,
(iv) shall have an interest rate, Company attaching the resolutions adopted by the Company approving or consenting to the effectiveness of such Incremental Notes and subject certifying as to the Company’s compliance the following clauses (e)(iiA) and through (e)(iii) above, amortization determined by the Issuer and the applicable Incremental Purchasers; provided, that the interest rate and amortization for a Note Increase shall be the interest rate and amortization for the Class being increased,
(v) shall have fees determined by the Issuer and the applicable Incremental Purchasers, and
(vi) shall participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basisH) in any voluntary or mandatory prepayments respect of the Notes hereunder.
such issuance of Incremental Notes: (fA) the All-In Yield applicable to the Incremental Notes of each Class shall be determined by the Issuer and the applicable Incremental Purchasers and shall be set forth in each applicable Incremental Amendment; provided, however, that the All-In Yield applicable to such Incremental Notes shall not be greater than guaranteed by any person that is not a Guarantor, (B) such Incremental Notes will be secured only by the applicable All-In Yield payable pursuant Collateral and shall be subject to an intercreditor agreement on customary intercreditor terms to be reasonably acceptable to the terms of this Agreement as amended through Agent and the Company, (C) the final maturity date of such calculation with respect to any existing Class of Notes plus 50 basis points per annum unless the interest rate (together with, as provided in the proviso below, the EurocurrencyEurodollar Rate floor) with respect to such existing Notes is increased so as to cause the then applicable All-In Yield under this Agreement on such existing Notes to equal the All-In Yield then applicable to the Incremental Notes minus 50 basis points; provided, further, that any increase in All-In Yield to any existing Notes due to the application or imposition of a EurocurrencyEurodollar Rate floor on any Incremental Notes shall be effected solely through an increase in no earlier than 91 days after the Latest Scheduled Termination Date, (or implementation of, as applicableD) any EurocurrencyEurodollar Rate floor applicable the weighted average life to maturity of such existing Notes.
(g) Commitments in respect of Incremental Notes shall become additional Commitments pursuant be no shorter than the longest remaining weighted average life to an amendment maturity of any Term Facility outstanding at the time of the issuance of the Incremental Notes, (an “E) such Incremental Amendment”Notes shall not be subject to any mandatory redemption or prepayment provisions or rights (except (1) customary change of control provisions and (2) other mandatory redemption or prepayment provisions to this Agreement the extent any such mandatory redemption or prepayment is required to be applied pro rata (or less than pro rata) basis to the Term Advances and other Indebtedness that is secured on a pari passu basis with the Obligations), (F) the terms and 81 Sealed Air – 4th A&R Syndicated Facility Agt conditions of such Incremental Notes (other than interest rates (including through fixed interest rates), interest margins, rate floors, fees, funding discounts, original issue discounts and prepayment or reception premiums and terms) shall be on market terms for comparable senior secured notes (as determined by the Company in good faith and as reasonably agreed by the Agent) and, as appropriate, if not consistent with the other Note Documents, executed by the Issuer, each Incremental Purchaser providing such Commitments, terms and the Agent (at the written direction conditions of the RequiredFacilities, shall not be materially more restrictive or burdensome to the Loan Parties when taken as a whole than the terms and conditions of the Facilities, taken as a whole, (G) such Incremental Notes shall not have the benefit of any financial maintenance covenant more restrictive than the covenant set forth in Section 5.03 unless the Lenders shall also have the benefit of such financial maintenance covenant on the same terms or such financial maintenance covenant applies only after the latest Termination Date then applicable to any Facility and (H) no Event of Default (except in the connection with a Limited Condition Acquisition, in which case such requirement shall be no Specified Event of Default) shall have occurred and be continuing or would result from such the issuance of such Incremental Notes.
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Incremental Notes. (a) The Issuer may at any time or from time to time after the earlier of (x) the first anniversary of the Closing Date and (y) the issuance of Delayed Draw Notes in an aggregate principal amount equal to the Delayed Draw Commitment as in effect on the Closing Date, by notice to the Agent and the Purchasers (an “Incremental Request”), request one or more new commitments which may be of the same Class as any outstanding Notes (a “Note Increase”) or a new Class of Notes (collectively with any Note Increase, the “Incremental Commitments”).
(b) On the applicable date (each, an “Incremental Note Closing Date”) specified in any Incremental Amendment (including through any Note Increase), subject to the satisfaction of the terms and conditions in this Section 2.7, (i) (A) each Incremental Purchaser of such Class shall purchase a Note from the Issuer (an “Incremental Note”) in an amount equal to its Incremental Commitment of such Class by wire transfer of immediately available funds as directed by the Issuer, (B) the Issuer will deliver to such Incremental Purchaser an Incremental Note issued in the name of such Incremental Purchaser and (C) each Incremental Purchaser of such Class shall become a Purchaser hereunder with respect to the Incremental Commitment of such Class and the Incremental Notes of such Class made pursuant thereto.
(c) Each Incremental Request from the Issuer pursuant to this Section 2.7 shall set forth the requested amount and proposed terms of the relevant Incremental Notes. Incremental Notes may be purchased by any existing Purchaser (but no existing Purchaser will have an obligation to make any Incremental Commitment) or by any Additional Purchaser (each such existing Purchaser or Additional Purchaser providing such Commitment, an “Incremental Purchaser”); provided, that each Purchaser holding Notes at the time of any such Incremental Request (or any of its Affiliates or Related Funds) shall be provided the right of first refusal to 60358086_160358086_13 participate on a pro rata basis with all other Purchasers holdings Notes in any such Incremental Commitment (which right may be exercised by provision of written notice from any electing Purchaser (or its applicable Affiliate or Related Fund) to the Issuer with the amount of the Incremental Commitment to be provided (not exceeding such Purchaser’s pro rata share) no later than ten (10) Business Days after receipt of the applicable Incremental Request); provided, further, that (i) the Agent shall have acknowledged any Additional Purchaser’s providing such Incremental Commitment to the extent such acknowledgment, if any, would be required under Section 16.3(c) for a sale, assignment or transfer of Notes or Commitments, as applicable, to such Additional Purchaser (ii) with respect to Incremental Commitments, any Affiliated Purchaser providing an Incremental Commitment shall be subject to the same restrictions set forth in Section 16.3(d) as they would otherwise be subject to with respect to any sale, assignment or transfer to such Affiliated Purchaser of Notes or Commitments and (iii) neither KGH, Holdings, the Issuer or orKGI nor any of their theirits Subsidiaries may provide Incremental Commitments or purchase Incremental Notes under this Section 2.7.
(d) The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the applicable date (which shall be no earlier than the date of such Incremental Amendment) specified therein (the “Incremental Amendment Date”) of each of the following conditions (such satisfaction to be evidenced by a certificate of the Chief Financial Officer or Controller of the Issuer delivered by the Issuer representing to the same), together with any other conditions set forth in the Incremental Amendment:
(i) after giving effect to such Incremental Commitments, the conditions of Section 8.3 shall be satisfied; provided, that, in connection with any Incremental Commitment, the primary purpose of which is to finance a Permitted Acquisition, such Incremental Amendment if agreed by the Incremental Purchasers may include a waiver in full or in part of the conditions set forth in clauses (a) and (b) (other than with respect to any Event of Default under Section 10.1 or Sections 10.7 or 10.8) of Section 8.3 and in clause (f) of the defined term “Permitted Acquisition”;
(ii) each Incremental Commitment shall be in an aggregate principal amount that is not less than $20,000,000 and shall be in an increment of $1,000,000 (provided, that such amount may be less than $20,000,000 if such amount represents all remaining availability under the limit set forth in Section 2.7(d)(iv));
(iii) (x) the Issuer shall be in pro forma compliance with the minimum Fixed Charge Coverage Ratio covenant (whether or not in effect) set forth in Section 6.5 hereof measured as of the end of the applicable Pro Forma Testing Period and calculated on a pro forma basis assuming that Indebtedness under the Incremental Notes had been incurred on the first day of such Pro Forma Testing Period and that all regularly scheduled interest and principal payments with respect to such Indebtedness had been paid during such Pro Forma Testing Period, and (y) the Issuer shall have a pro forma Leverage Ratio of not greater than 3.50 to 1.00, measured as of the end of the applicable Pro Forma Testing Period and calculated on a pro forma basis assuming that such Indebtedness under the Incremental Notes had been incurred on the first day of such Pro Forma Testing Period and that all regularly scheduled interest and principal payments with respect to such Indebtedness had been paid during such Pro Forma Testing Period;; 60358086_160358086_13
(iv) receipt by Agent and the Purchasers of projections showing the projected calculation of the Fixed Charge Coverage Ratio for each four-quarter fiscal period of the Issuer completed over the twelve month period immediately following the Incremental Note Closing Date, such calculation giving pro forma effect to the incurrence of the Incremental Notes on such Incremental Note Closing Date;
(v) together with the Incremental Notes issued under such Incremental Amendment, the aggregate principal amount of Incremental Notes issued since the Closing Date does not exceed $40,000,000 40,000,000; and minus any incremental facilities incurred under the Revolving Credit Incremental Usage AmountFacility (including any then-existing incremental facilities refinanced as part of a Permitted Secured Debt Refinancing or added or incurred under any Revolving Credit Facility established as part of a Permitted Secured Debt Refinancing); and
(vi) to the extent reasonably requested by the Agent or Required Purchasers, receipt by the Agent and the Purchasers of (A) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate) other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Agent and the Required Purchasers and (B) reaffirmation agreements and/or such amendments to the Note Documents as may be reasonably requested by the Agent or the Required Purchasers in order to ensure that such Incremental Purchasers are provided with the benefit of the applicable Note Documents.
(e) The terms, provisions and documentation of the Incremental Notes of any Class shall be as agreed between the Issuer and the applicable Incremental Purchasers providing such Incremental Commitments and, except as set forth in clause (f) below, sub-clauses (e)(i) through (e)(vi) below, and as otherwise set forth herein, to the extent not identical to any Class of Notes existing on the Incremental Note Closing Date, the terms and conditions of the Incremental Notes that are effective prior to the then Latest Maturity Date of the Notes shall not be more restrictive, taken as a whole, than those applicable to the Notes existing on the Incremental Note Closing Date, unless (x) this Agreement is amended (solely with the consent of the Issuer and with no consent required by any Purchaser, the Agent or any other Note Party) to conform to such more restrictive terms and conditions for the benefit of all such existing Notes or (y) such more restrictive terms and conditions are satisfactory to the Required Purchasers; provided that, notwithstanding the foregoing, in the case of a Note Increase, the terms, provisions and documentation of such Note Increase shall be identical (other than with respect to upfront fees, OID or similar fees) to the applicable Class of Notes being increased, in each case, as existing on the Incremental Note Closing Date. In any event the Incremental Notes:
(i) shall rank pari passu in right of payment and security with the existing Notes,
(ii) as of the Incremental Amendment Date, shall not have a final scheduled maturity date earlier than the then Latest Maturity Date,, 60358086_160358086_13
(iii) as of the Incremental Amendment Date, shall have a Weighted Average Life to Maturity not shorter than the remaining Weighted Average Life to Maturity of the existing Notes,
(iv) shall have an interest rate, and subject to clauses (e)(ii) and (e)(iii) above, amortization determined by the Issuer and the applicable Incremental Purchasers; provided, that the interest rate and amortization for a Note Increase shall be the interest rate and amortization for the Class being increased,
(v) shall have fees determined by the Issuer and the applicable Incremental Purchasers, and
(vi) shall participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of the Notes hereunder.
(f) the All-In Yield applicable to the Incremental Notes of each Class shall be determined by the Issuer and the applicable Incremental Purchasers and shall be set forth in each applicable Incremental Amendment; provided, however, that the All-In Yield applicable to such Incremental Notes shall not be greater than the applicable All-In Yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to any existing Class of Notes plus 50 basis points per annum unless the interest rate (together with, as provided in the proviso below, the EurocurrencyEurodollar Eurodollar Rate floor) with respect to such existing Notes is increased so as to cause the then applicable All-In Yield under this Agreement on such existing Notes to equal the All-In Yield then applicable to the Incremental Notes minus 50 basis points; provided, further, that any increase in All-In Yield to any existing Notes due to the application or imposition of a EurocurrencyEurodollar Eurodollar Rate floor on any Incremental Notes shall be effected solely through an increase in (or implementation of, as applicable) any EurocurrencyEurodollar Eurodollar Rate floor applicable to such existing Notes.
(g) Commitments in respect of Incremental Notes shall become additional Commitments pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Note Documents, executed by the Issuer, each Incremental Purchaser providing such Commitments, and the Agent (at the written direction of the RequiredRequired Purchasers). The Incremental Amendment may effect such amendments to this Agreement and the other Note Documents as may be necessary or appropriate, in the reasonable opinion of the Required Purchasers and the Issuer, to effect the provisions of this Section 2.7. The Issuer will use the proceeds of the sale of any Incremental Notes for any purpose not prohibited by this Agreement.
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Incremental Notes. (ai) The Issuer Any Borrower may at any time or from time to time after the earlier of (x) the first anniversary of the Closing Date and (y) the issuance of Delayed Draw Notes in an aggregate principal amount equal to the Delayed Draw Commitment as in effect on the Closing Datetime, by upon notice to the Agent and Agent, specifying in reasonable detail the Purchasers (an “Incremental Request”)proposed terms thereof, request issue one or more new commitments which may be series of the same Class as any outstanding Notes (a “Note Increase”) or a new Class of Notes (collectively with any Note Increase, the “Incremental Commitments”).
(b) On the applicable date (each, an “Incremental Note Closing Date”) specified in any Incremental Amendment (including through any Note Increase), subject to the satisfaction of the terms and conditions in this Section 2.7, (i) (A) each Incremental Purchaser of such Class shall purchase a Note from the Issuer (an “Incremental Note”) in an amount equal to its Incremental Commitment of such Class by wire transfer of immediately available funds as directed by the Issuer, (B) the Issuer will deliver to such Incremental Purchaser an Incremental Note issued in the name of such Incremental Purchaser and (C) each Incremental Purchaser of such Class shall become a Purchaser hereunder with respect to the Incremental Commitment of such Class and the Incremental Notes of such Class made pursuant thereto.
(c) Each Incremental Request from the Issuer pursuant to this Section 2.7 shall set forth the requested amount and proposed terms of the relevant Incremental Notes. Incremental Notes may be purchased by any existing Purchaser (but no existing Purchaser will have an obligation to make any Incremental Commitment) or by any Additional Purchaser (each such existing Purchaser or Additional Purchaser providing such Commitment, an “Incremental Purchaser”); provided, that each Purchaser holding Notes at the time of any such Incremental Request (or any of its Affiliates or Related Funds) shall be provided the right of first refusal to participate on a pro rata basis with all other Purchasers holdings Notes in any such Incremental Commitment (which right may be exercised by provision of written notice from any electing Purchaser (or its applicable Affiliate or Related Fund) to the Issuer with the amount of the Incremental Commitment to be provided (not exceeding such Purchaser’s pro rata share) no later than ten (10) Business Days after receipt of the applicable Incremental Request); provided, further, that (i) the Agent shall have acknowledged any Additional Purchaser’s providing such Incremental Commitment to the extent such acknowledgment, if any, would be required under Section 16.3(c) for a sale, assignment or transfer of Notes or Commitments, as applicable, to such Additional Purchaser (ii) with respect to Incremental Commitments, any Affiliated Purchaser providing an Incremental Commitment shall be subject to the same restrictions set forth in Section 16.3(d) as they would otherwise be subject to with respect to any sale, assignment or transfer to such Affiliated Purchaser of Notes or Commitments and (iii) neither KGH, Holdings, the Issuer or any of their Subsidiaries may provide Incremental Commitments or purchase Incremental Notes under this Section 2.7.
(d) The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the applicable date (which shall be no earlier than the date of such Incremental Amendment) specified therein (the “Incremental Amendment Date”) of each of the following conditions (such satisfaction to be evidenced by a certificate of the Chief Financial Officer or Controller of the Issuer delivered by the Issuer representing to the same), together with any other conditions set forth in the Incremental Amendment:
(i) after giving effect to such Incremental Commitments, the conditions of Section 8.3 shall be satisfied; provided, that, in connection with any Incremental Commitment, the primary purpose of which is to finance a Permitted Acquisition, such Incremental Amendment if agreed by the Incremental Purchasers may include a waiver in full or in part of the conditions set forth in clauses (a) and (b) (other than with respect to any Event of Default under Section 10.1 or Sections 10.7 or 10.8) of Section 8.3 and in clause (f) of the defined term “Permitted Acquisition”;
(ii) each Incremental Commitment shall be in an aggregate principal amount that is not less than $20,000,000 and shall be in an increment of $1,000,000 (provided, that such amount may be less than $20,000,000 if such amount represents all remaining availability under the limit set forth in Section 2.7(d)(iv));
(iii) (x) the Issuer shall be in pro forma compliance with the minimum Fixed Charge Coverage Ratio covenant (whether or not in effect) set forth in Section 6.5 hereof measured as of the end of the applicable Pro Forma Testing Period and calculated on a pro forma basis assuming that Indebtedness under the Incremental Notes had been incurred on the first day of such Pro Forma Testing Period and that all regularly scheduled interest and principal payments with respect to such Indebtedness had been paid during such Pro Forma Testing Period, and (y) the Issuer shall have a pro forma Leverage Ratio of not greater than 3.50 to 1.00, measured as of the end of the applicable Pro Forma Testing Period and calculated on a pro forma basis assuming that such Indebtedness under the Incremental Notes had been incurred on the first day of such Pro Forma Testing Period and that all regularly scheduled interest and principal payments with respect to such Indebtedness had been paid during such Pro Forma Testing Period;
(iv) receipt by Agent and the Purchasers of projections showing the projected calculation of the Fixed Charge Coverage Ratio for each four-quarter fiscal period of the Issuer completed over the twelve month period immediately following the Incremental Note Closing Date, such calculation giving pro forma effect to the incurrence of the Incremental Notes on such Incremental Note Closing Date;
(v) together with the Incremental Notes issued under such Incremental Amendment, the aggregate principal amount of Incremental Notes issued since the Closing Date does not exceed $40,000,000 minus the Revolving Credit Incremental Usage Amount; and
(vi) to the extent reasonably requested by the Agent or Required Purchasers, receipt by the Agent and the Purchasers of (A) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate) other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Agent and the Required Purchasers and (B) reaffirmation agreements and/or such amendments to the Note Documents as may be reasonably requested by the Agent or the Required Purchasers in order to ensure that such Incremental Purchasers are provided with the benefit of the applicable Note Documents.
(e) The terms, provisions and documentation of the Incremental Notes of any Class shall be as agreed between the Issuer and the applicable Incremental Purchasers providing such Incremental Commitments and, except as set forth in clause (f) below, sub-clauses (e)(i) through (e)(vi) below, and as otherwise set forth herein, to the extent not identical to any Class of Notes existing on the Incremental Note Closing Date, the terms and conditions of the Incremental Notes that are effective prior to the then Latest Maturity Date of the Notes shall not be more restrictive, taken as a whole, than those applicable to the Notes existing on the Incremental Note Closing Date, unless (x) this Agreement is amended (solely with the consent of the Issuer and with no consent required by any Purchaser, the Agent or any other Note Party) to conform to such more restrictive terms and conditions for the benefit of all such existing Notes or (y) such more restrictive terms and conditions are satisfactory to the Required Purchasers; provided that, notwithstanding the foregoing, in the case of a Note Increase, the terms, provisions and documentation of such Note Increase shall be identical (other than with respect to upfront fees, OID or similar fees) to the applicable Class of Notes being increased, in each case, as existing on the Incremental Note Closing Date. In any event the Incremental Notes:
(i) shall rank secured notes ranking pari passu in right of payment and security with the existing Facilities (such notes, collectively, “Incremental Notes,”) in an aggregate amount not to exceed the Incremental Amount (which shall be in minimum increments of $5,000,000 and a minimum amount of $25,000,000 or equal to the remaining Incremental Amount).
(ii) Each issuance of Incremental Notes shall be on the terms set forth in this clause (ii), and as a condition precedent to the effectiveness of such issuance the Company shall have delivered to the Agent a certificate dated as of the Incremental Amendment Date, shall not have a final scheduled maturity date earlier than the then Latest Maturity Date,
(iii) as of issuance of the Incremental Amendment Date, shall have Notes signed by a Weighted Average Life to Maturity not shorter than the remaining Weighted Average Life to Maturity Responsible Officer of the existing Notes,
(iv) shall have an interest rate, Company attaching the resolutions adopted by the Company approving or consenting to the effectiveness of such Incremental Notes and subject certifying as to the Company’s compliance the following clauses (e)(iiA) and through (e)(iii) above, amortization determined by the Issuer and the applicable Incremental Purchasers; provided, that the interest rate and amortization for a Note Increase shall be the interest rate and amortization for the Class being increased,
(v) shall have fees determined by the Issuer and the applicable Incremental Purchasers, and
(vi) shall participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basisH) in any voluntary or mandatory prepayments respect of the Notes hereunder.
such issuance of Incremental Notes: (fA) the All-In Yield applicable to the Incremental Notes of each Class shall be determined by the Issuer and the applicable Incremental Purchasers and shall be set forth in each applicable Incremental Amendment; provided, however, that the All-In Yield applicable to such Incremental Notes shall not be greater than guaranteed by any person that is not a Guarantor, (B) such Incremental Notes will be secured only by the applicable All-In Yield payable pursuant Collateral and shall be subject to an intercreditor agreement on customary intercreditor terms to be reasonably acceptable to the terms of this Agreement as amended through Agent and the Company, (C) the final maturity date of such calculation with respect to any existing Class of Notes plus 50 basis points per annum unless the interest rate (together with, as provided in the proviso below, the EurocurrencyEurodollar Rate floor) with respect to such existing Notes is increased so as to cause the then applicable All-In Yield under this Agreement on such existing Notes to equal the All-In Yield then applicable to the Incremental Notes minus 50 basis points; provided, further, that any increase in All-In Yield to any existing Notes due to the application or imposition of a EurocurrencyEurodollar Rate floor on any Incremental Notes shall be effected solely through an increase in no earlier than 91 days after the Latest Scheduled Termination Date, (or implementation of, as applicableD) any EurocurrencyEurodollar Rate floor applicable the weighted average life to maturity of such existing Notes.
(g) Commitments in respect of Incremental Notes shall become additional Commitments pursuant be no shorter than the longest remaining weighted average life to an amendment maturity of any Term Facility outstanding at the time of the issuance of the Incremental Notes, (an “E) such Incremental Amendment”Notes shall not be subject to any mandatory redemption or prepayment provisions or rights (except (1) customary change of control AMERICAS/2024254939.6 79 Sealed Air – 4th A&R Syndicated Facility Agt provisions and (2) other mandatory redemption or prepayment provisions to this Agreement the extent any such mandatory redemption or prepayment is required to be applied pro rata (or less than pro rata) basis to the Term Advances and other Indebtedness that is secured on a pari passu basis with the Obligations), (F) the terms and conditions of such Incremental Notes (other than interest rates (including through fixed interest rates), interest margins, rate floors, fees, funding discounts, original issue discounts and prepayment or reception premiums and terms) shall be on market terms for comparable senior secured notes (as determined by the Company in good faith and as reasonably agreed by the Agent) and, as appropriate, if not consistent with the other Note Documents, executed by the Issuer, each Incremental Purchaser providing such Commitments, terms and the Agent (at the written direction conditions of the RequiredFacilities, shall not be materially more restrictive or burdensome to the Loan Parties when taken as a whole than the terms and conditions of the Facilities, taken as a whole, (G) such Incremental Notes shall not have the benefit of any financial maintenance covenant more restrictive than the covenant set forth in Section 5.03 unless the Lenders shall also have the benefit of such financial maintenance covenant on the same terms or such financial maintenance covenant applies only after the latest Termination Date then applicable to any Facility and (H) no Event of Default (except in the connection with a Limited Condition Acquisition, in which case such requirement shall be no Specified Event of Default) shall have occurred and be continuing or would result from such the issuance of such Incremental Notes.
Appears in 1 contract
Incremental Notes. (ai) The Issuer Borrower may at any time or from time to time, upon notice to the Administrative Agent, specifying in reasonable detail the proposed terms thereof, issue one or more series of secured notes ranking pari passu in right of security with, or junior in right of security with, the Facilities (such notes, collectively, “Incremental Notes”) in an aggregate amount not to exceed the Incremental Amount (at the time after of issuance); provided, that any such issuance of Incremental Notes shall be in a minimum amount of the earlier lesser of (x) the first anniversary of the Closing Date $25,000,000 and (y) the issuance of Delayed Draw Notes in an aggregate principal entire amount equal to the Delayed Draw Commitment as in effect on the Closing Date, by notice to the Agent and the Purchasers (an “Incremental Request”), request one or more new commitments which that may then be of the same Class as any outstanding Notes (a “Note Increase”) or a new Class of Notes (collectively with any Note Increase, the “Incremental Commitments”).
(b) On the applicable date (each, an “Incremental Note Closing Date”) specified in any Incremental Amendment (including through any Note Increase), subject to the satisfaction of the terms and conditions in requested under this Section 2.7, (i) (A) each Incremental Purchaser of such Class shall purchase a Note from the Issuer (an “Incremental Note”) in an amount equal to its Incremental Commitment of such Class by wire transfer of immediately available funds as directed by the Issuer, (B) the Issuer will deliver to such Incremental Purchaser an Incremental Note issued in the name of such Incremental Purchaser and (C) each Incremental Purchaser of such Class shall become a Purchaser hereunder with respect to the Incremental Commitment of such Class and the Incremental Notes of such Class made pursuant thereto.
(c) Each Incremental Request from the Issuer pursuant to this Section 2.7 shall set forth the requested amount and proposed terms of the relevant Incremental Notes. Incremental Notes may be purchased by any existing Purchaser (but no existing Purchaser will have an obligation to make any Incremental Commitment) or by any Additional Purchaser (each such existing Purchaser or Additional Purchaser providing such Commitment, an “Incremental Purchaser”2.15(e); provided, that each Purchaser holding Notes at the time of any such Incremental Request (or any of its Affiliates or Related Funds) shall be provided the right of first refusal to participate on a pro rata basis with all other Purchasers holdings Notes in any such Incremental Commitment (which right may be exercised by provision of written notice from any electing Purchaser (or its applicable Affiliate or Related Fund) to the Issuer with the amount of the Incremental Commitment to be provided (not exceeding such Purchaser’s pro rata share) no later than ten (10) Business Days after receipt of the applicable Incremental Request); and provided, further, that (i) the Agent any Incremental Notes issued during a Collateral Suspension Period shall have acknowledged any Additional Purchaser’s providing such Incremental Commitment to the extent such acknowledgmentbe unsecured and, if any, would be required under Section 16.3(c) for a sale, assignment or transfer of Notes or Commitments, as applicable, to such Additional Purchaser (ii) with respect to Incremental Commitments, any Affiliated Purchaser providing an Incremental Commitment shall be subject to the same restrictions set forth in Section 16.3(d) as they would otherwise be subject to with respect to any sale, assignment or transfer to such Affiliated Purchaser of Notes or Commitments and (iii) neither KGH, Holdings, the Issuer or any of their Subsidiaries may provide Incremental Commitments or purchase Incremental Notes under this Section 2.7.
(d) The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunderinitially secured, shall be subject to substantially the satisfaction on same provisions with respect to a Collateral Reinstatement Event as the applicable date Facilities.
(which ii) As a condition precedent to the effectiveness of any Incremental Notes pursuant to this Section 2.15(e), (A) the Borrower shall be no earlier than deliver to the Administrative Agent a certificate dated as of the date of issuance of the Incremental Notes signed by a Responsible Officer of the Borrower, certifying and attaching the resolutions adopted by the Borrower approving or consenting to the effectiveness of such Incremental Amendment) specified therein (Notes, and certifying that the “Incremental Amendment Date”) of each of the following conditions (such satisfaction to be evidenced by a certificate of the Chief Financial Officer or Controller of the Issuer delivered by the Issuer representing to the same), together with any other conditions precedent set forth in the Incremental Amendment:
(i) after giving effect to such Incremental Commitments, the conditions of Section 8.3 shall be satisfied; provided, that, in connection with any Incremental Commitment, the primary purpose of which is to finance a Permitted Acquisition, such Incremental Amendment if agreed by the Incremental Purchasers may include a waiver in full or in part of the conditions set forth in following clauses (a) and (b) (other than with respect to any Event of Default under Section 10.1 or Sections 10.7 or 10.8) of Section 8.3 and in clause (f) of the defined term “Permitted Acquisition”;
(ii) each Incremental Commitment shall be in an aggregate principal amount that is not less than $20,000,000 and shall be in an increment of $1,000,000 (provided, that such amount may be less than $20,000,000 if such amount represents all remaining availability under the limit set forth in Section 2.7(d)(iv));
(iii) (x) the Issuer shall be in pro forma compliance with the minimum Fixed Charge Coverage Ratio covenant (whether or not in effect) set forth in Section 6.5 hereof measured as of the end of the applicable Pro Forma Testing Period and calculated on a pro forma basis assuming that Indebtedness under the Incremental Notes had been incurred on the first day of such Pro Forma Testing Period and that all regularly scheduled interest and principal payments with respect to such Indebtedness had been paid during such Pro Forma Testing Period, and (y) the Issuer shall have a pro forma Leverage Ratio of not greater than 3.50 to 1.00, measured as of the end of the applicable Pro Forma Testing Period and calculated on a pro forma basis assuming that such Indebtedness under the Incremental Notes had been incurred on the first day of such Pro Forma Testing Period and that all regularly scheduled interest and principal payments with respect to such Indebtedness had been paid during such Pro Forma Testing Period;
(iv) receipt by Agent and the Purchasers of projections showing the projected calculation of the Fixed Charge Coverage Ratio for each four-quarter fiscal period of the Issuer completed over the twelve month period immediately following the Incremental Note Closing Date, such calculation giving pro forma effect to the incurrence of the Incremental Notes on such Incremental Note Closing Date;
(v) together with the Incremental Notes issued under such Incremental Amendment, the aggregate principal amount of Incremental Notes issued since the Closing Date does not exceed $40,000,000 minus the Revolving Credit Incremental Usage Amount; and
(vi) to the extent reasonably requested by the Agent or Required Purchasers, receipt by the Agent and the Purchasers of (A) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate) other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Agent and the Required Purchasers and (B) reaffirmation agreements and/or such amendments to the Note Documents as may be reasonably requested by the Agent or the Required Purchasers in order to ensure that such Incremental Purchasers are provided with the benefit of the applicable Note Documents.
(e) The terms, provisions and documentation of the Incremental Notes of any Class shall be as agreed between the Issuer and the applicable Incremental Purchasers providing such Incremental Commitments and, except as set forth in clause (f) below, sub-clauses (e)(i) through (e)(viF) belowhave been satisfied, and as otherwise set forth herein, to the extent not identical to any Class of Notes existing on the Incremental Note Closing Date, the terms and conditions of the Incremental Notes that are effective prior to the then Latest Maturity Date of the Notes shall not be more restrictive, taken as a whole, than those applicable to the Notes existing on the Incremental Note Closing Date, unless (xB) this Agreement is amended (solely with the consent of the Issuer and with no consent required by any Purchaser, the Agent or any other Note Party) to conform to such more restrictive terms and conditions for the benefit of all such existing Notes or (y) such more restrictive terms and conditions are satisfactory to the Required Purchasers; provided that, notwithstanding the foregoing, in the case of a Note Increase, the terms, provisions and documentation of such Note Increase shall be identical (other than with respect to upfront fees, OID or similar fees) to the applicable Class of Notes being increased, in each case, as existing on the Incremental Note Closing Date. In any event the Incremental Notes:
(i) shall rank pari passu in right of payment and security with the existing Notes,
(ii) as of the Incremental Amendment Date, shall not have a final scheduled maturity date earlier than the then Latest Maturity Date,
(iii) as of the Incremental Amendment Date, shall have a Weighted Average Life to Maturity not shorter than the remaining Weighted Average Life to Maturity of the existing Notes,
(iv) shall have an interest rate, and subject to clauses (e)(ii) and (e)(iii) above, amortization determined by the Issuer and the applicable Incremental Purchasers; provided, that the interest rate and amortization for a Note Increase shall be the interest rate and amortization for the Class being increased,
(v) shall have fees determined by the Issuer and the applicable Incremental Purchasers, and
(vi) shall participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of the Notes hereunder.
(f) the All-In Yield applicable to the Incremental Notes of each Class shall be determined by the Issuer and the applicable Incremental Purchasers and shall be set forth in each applicable Incremental Amendment; provided, however, that the All-In Yield applicable to such Incremental Notes shall not be greater guaranteed by any person that is not a Guarantor, (C) such Incremental Notes will be secured only by the Collateral and, if initially secured, shall be subject to an intercreditor agreement on customary intercreditor terms to be reasonably acceptable to the Administrative Agent and the Borrower, (D) such Incremental Notes shall have a final maturity no earlier than 91 days after the Latest Maturity Date, (E) the weighted average life to maturity of such Incremental Notes shall not be shorter than the applicable All-In Yield payable pursuant remaining weighted average life to maturity of any outstanding Term A-2 Loans at the time of the issuance of the Incremental Notes, and (F) such Incremental Notes shall not be subject to any mandatory redemption or prepayment provisions or rights (except (1) customary asset sale, recovery event and change of control provisions or (2) to the terms of extent any such mandatory redemption or prepayment is required to be applied pro rata to the Term Loans and other Indebtedness that is secured on a pari passu basis with the Obligations).
(iii) The Lenders hereby authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrower as amended through the date of such calculation with respect may be necessary in order to any existing Class of Notes plus 50 basis points per annum unless the interest rate (together with, as provided in the proviso below, the EurocurrencyEurodollar Rate floor) with respect to such existing Notes is increased so as to cause the then applicable All-In Yield under this Agreement on such existing Notes to equal the All-In Yield then applicable to the Incremental Notes minus 50 basis points; provided, further, that any increase in All-In Yield to any existing Notes due to the application or imposition of a EurocurrencyEurodollar Rate floor on secure any Incremental Notes shall with the Collateral and/or to make such technical amendments as may be effected solely through an increase necessary or appropriate in (or implementation of, as applicable) any EurocurrencyEurodollar Rate floor applicable to such existing Notes.
(g) Commitments in respect the reasonable opinion of Incremental Notes shall become additional Commitments pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Note Documents, executed by the Issuer, each Incremental Purchaser providing such Commitments, Administrative Agent and the Agent (at Borrower in connection with the written direction issuance of the Requiredsuch Incremental Notes, in each case on terms consistent with this Section 2.15(e).
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Sources: Credit Agreement (Rayonier Advanced Materials Inc.)
Incremental Notes. (ai) The Issuer Any Borrower may at any time or from time to time after the earlier of (x) the first anniversary of the Closing Date and (y) the issuance of Delayed Draw Notes in an aggregate principal amount equal to the Delayed Draw Commitment as in effect on the Closing Datetime, by upon notice to the Agent and Agent, specifying in reasonable detail the Purchasers (an “Incremental Request”)proposed terms thereof, request issue one or more new commitments which may be series of the same Class as any outstanding Notes (a “Note Increase”) or a new Class of Notes (collectively with any Note Increase, the “Incremental Commitments”).
(b) On the applicable date (each, an “Incremental Note Closing Date”) specified in any Incremental Amendment (including through any Note Increase), subject to the satisfaction of the terms and conditions in this Section 2.7, (i) (A) each Incremental Purchaser of such Class shall purchase a Note from the Issuer (an “Incremental Note”) in an amount equal to its Incremental Commitment of such Class by wire transfer of immediately available funds as directed by the Issuer, (B) the Issuer will deliver to such Incremental Purchaser an Incremental Note issued in the name of such Incremental Purchaser and (C) each Incremental Purchaser of such Class shall become a Purchaser hereunder with respect to the Incremental Commitment of such Class and the Incremental Notes of such Class made pursuant thereto.
(c) Each Incremental Request from the Issuer pursuant to this Section 2.7 shall set forth the requested amount and proposed terms of the relevant Incremental Notes. Incremental Notes may be purchased by any existing Purchaser (but no existing Purchaser will have an obligation to make any Incremental Commitment) or by any Additional Purchaser (each such existing Purchaser or Additional Purchaser providing such Commitment, an “Incremental Purchaser”); provided, that each Purchaser holding Notes at the time of any such Incremental Request (or any of its Affiliates or Related Funds) shall be provided the right of first refusal to participate on a pro rata basis with all other Purchasers holdings Notes in any such Incremental Commitment (which right may be exercised by provision of written notice from any electing Purchaser (or its applicable Affiliate or Related Fund) to the Issuer with the amount of the Incremental Commitment to be provided (not exceeding such Purchaser’s pro rata share) no later than ten (10) Business Days after receipt of the applicable Incremental Request); provided, further, that (i) the Agent shall have acknowledged any Additional Purchaser’s providing such Incremental Commitment to the extent such acknowledgment, if any, would be required under Section 16.3(c) for a sale, assignment or transfer of Notes or Commitments, as applicable, to such Additional Purchaser (ii) with respect to Incremental Commitments, any Affiliated Purchaser providing an Incremental Commitment shall be subject to the same restrictions set forth in Section 16.3(d) as they would otherwise be subject to with respect to any sale, assignment or transfer to such Affiliated Purchaser of Notes or Commitments and (iii) neither KGH, Holdings, the Issuer or any of their Subsidiaries may provide Incremental Commitments or purchase Incremental Notes under this Section 2.7.
(d) The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the applicable date (which shall be no earlier than the date of such Incremental Amendment) specified therein (the “Incremental Amendment Date”) of each of the following conditions (such satisfaction to be evidenced by a certificate of the Chief Financial Officer or Controller of the Issuer delivered by the Issuer representing to the same), together with any other conditions set forth in the Incremental Amendment:
(i) after giving effect to such Incremental Commitments, the conditions of Section 8.3 shall be satisfied; provided, that, in connection with any Incremental Commitment, the primary purpose of which is to finance a Permitted Acquisition, such Incremental Amendment if agreed by the Incremental Purchasers may include a waiver in full or in part of the conditions set forth in clauses (a) and (b) (other than with respect to any Event of Default under Section 10.1 or Sections 10.7 or 10.8) of Section 8.3 and in clause (f) of the defined term “Permitted Acquisition”;
(ii) each Incremental Commitment shall be in an aggregate principal amount that is not less than $20,000,000 and shall be in an increment of $1,000,000 (provided, that such amount may be less than $20,000,000 if such amount represents all remaining availability under the limit set forth in Section 2.7(d)(iv));
(iii) (x) the Issuer shall be in pro forma compliance with the minimum Fixed Charge Coverage Ratio covenant (whether or not in effect) set forth in Section 6.5 hereof measured as of the end of the applicable Pro Forma Testing Period and calculated on a pro forma basis assuming that Indebtedness under the Incremental Notes had been incurred on the first day of such Pro Forma Testing Period and that all regularly scheduled interest and principal payments with respect to such Indebtedness had been paid during such Pro Forma Testing Period, and (y) the Issuer shall have a pro forma Leverage Ratio of not greater than 3.50 to 1.00, measured as of the end of the applicable Pro Forma Testing Period and calculated on a pro forma basis assuming that such Indebtedness under the Incremental Notes had been incurred on the first day of such Pro Forma Testing Period and that all regularly scheduled interest and principal payments with respect to such Indebtedness had been paid during such Pro Forma Testing Period;
(iv) receipt by Agent and the Purchasers of projections showing the projected calculation of the Fixed Charge Coverage Ratio for each four-quarter fiscal period of the Issuer completed over the twelve month period immediately following the Incremental Note Closing Date, such calculation giving pro forma effect to the incurrence of the Incremental Notes on such Incremental Note Closing Date;
(v) together with the Incremental Notes issued under such Incremental Amendment, the aggregate principal amount of Incremental Notes issued since the Closing Date does not exceed $40,000,000 minus the Revolving Credit Incremental Usage Amount; and
(vi) to the extent reasonably requested by the Agent or Required Purchasers, receipt by the Agent and the Purchasers of (A) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate) other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Agent and the Required Purchasers and (B) reaffirmation agreements and/or such amendments to the Note Documents as may be reasonably requested by the Agent or the Required Purchasers in order to ensure that such Incremental Purchasers are provided with the benefit of the applicable Note Documents.
(e) The terms, provisions and documentation of the Incremental Notes of any Class shall be as agreed between the Issuer and the applicable Incremental Purchasers providing such Incremental Commitments and, except as set forth in clause (f) below, sub-clauses (e)(i) through (e)(vi) below, and as otherwise set forth herein, to the extent not identical to any Class of Notes existing on the Incremental Note Closing Date, the terms and conditions of the Incremental Notes that are effective prior to the then Latest Maturity Date of the Notes shall not be more restrictive, taken as a whole, than those applicable to the Notes existing on the Incremental Note Closing Date, unless (x) this Agreement is amended (solely with the consent of the Issuer and with no consent required by any Purchaser, the Agent or any other Note Party) to conform to such more restrictive terms and conditions for the benefit of all such existing Notes or (y) such more restrictive terms and conditions are satisfactory to the Required Purchasers; provided that, notwithstanding the foregoing, in the case of a Note Increase, the terms, provisions and documentation of such Note Increase shall be identical (other than with respect to upfront fees, OID or similar fees) to the applicable Class of Notes being increased, in each case, as existing on the Incremental Note Closing Date. In any event the Incremental Notes:
(i) shall rank secured notes ranking pari passu in right of payment and security with the existing Facilities (such notes, collectively, “Incremental Notes,”) in an aggregate amount not to exceed the Incremental Amount (which shall be in minimum increments of $5,000,000 and a minimum amount of $25,000,000 or equal to the remaining Incremental Amount).
(ii) Each issuance of Incremental Notes shall be on the terms set forth in this clause (ii), and as a condition precedent to the effectiveness of such issuance the Company shall have delivered to the Agent a certificate dated as of the Incremental Amendment Date, shall not have a final scheduled maturity date earlier than the then Latest Maturity Date,
(iii) as of issuance of the Incremental Amendment Date, shall have Notes signed by a Weighted Average Life to Maturity not shorter than the remaining Weighted Average Life to Maturity Responsible Officer of the existing Notes,
(iv) shall have an interest rate, Company attaching the resolutions adopted by the Company approving or consenting to the effectiveness of such Incremental Notes and subject certifying as to the Company’s compliance the following clauses (e)(iiA) and through (e)(iii) above, amortization determined by the Issuer and the applicable Incremental Purchasers; provided, that the interest rate and amortization for a Note Increase shall be the interest rate and amortization for the Class being increased,
(v) shall have fees determined by the Issuer and the applicable Incremental Purchasers, and
(vi) shall participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basisH) in any voluntary or mandatory prepayments respect of the Notes hereunder.
such issuance of Incremental Notes: (fA) the All-In Yield applicable to the Incremental Notes of each Class shall be determined by the Issuer and the applicable Incremental Purchasers and shall be set forth in each applicable Incremental Amendment; provided, however, that the All-In Yield applicable to such Incremental Notes shall not be greater than guaranteed by any person that is not a Guarantor, (B) such Incremental Notes will be secured only by the applicable All-In Yield payable pursuant Collateral and shall be subject to an intercreditor agreement on customary intercreditor terms to be reasonably acceptable to the terms of this Agreement as amended through Agent and the Company, (C) the final maturity date of such calculation with respect to any existing Class of Notes plus 50 basis points per annum unless the interest rate (together with, as provided in the proviso below, the EurocurrencyEurodollar Rate floor) with respect to such existing Notes is increased so as to cause the then applicable All-In Yield under this Agreement on such existing Notes to equal the All-In Yield then applicable to the Incremental Notes minus 50 basis points; provided, further, that any increase in All-In Yield to any existing Notes due to the application or imposition of a EurocurrencyEurodollar Rate floor on any Incremental Notes shall be effected solely through an increase in no earlier than 91 days after the Latest Scheduled Termination Date, (or implementation of, as applicableD) any EurocurrencyEurodollar Rate floor applicable the weighted average life to maturity of such existing Notes.
(g) Commitments in respect of Incremental Notes shall become additional Commitments pursuant be no shorter than the longest remaining weighted average life to an amendment maturity of any Term Facility outstanding at the time of the issuance of the Incremental Notes, (an “E) such Incremental Amendment”Notes shall not be subject to any mandatory redemption or prepayment provisions or rights (except (1) customary change of control provisions and (2) other mandatory redemption or prepayment provisions to this Agreement the extent any such mandatory redemption or prepayment is required to be applied pro rata (or less than pro rata) basis to the Term Advances 77 and other Indebtedness that is secured on a pari passu basis with the Obligations), (F) the terms and conditions of such Incremental Notes (other than interest rates (including through fixed interest rates), interest margins, rate floors, fees, funding discounts, original issue discounts and prepayment or reception premiums and terms) shall be on market terms for comparable senior secured notes (as determined by the Company in good faith and as reasonably agreed by the Agent) and, as appropriate, if not consistent with the other Note Documents, executed by the Issuer, each Incremental Purchaser providing such Commitments, terms and the Agent (at the written direction conditions of the RequiredFacilities, shall not be materially more restrictive or burdensome to the Loan Parties when taken as a whole than the terms and conditions of the Facilities, taken as a whole, (G) such Incremental Notes shall not have the benefit of any financial maintenance covenant more restrictive than the covenant set forth in Section 5.03 unless the Lenders shall also have the benefit of such financial maintenance covenant on the same terms or such financial maintenance covenant applies only after the latest Termination Date then applicable to any Facility and (H) no Event of Default (except in the connection with a Limited Condition Acquisition, in which case such requirement shall be no Specified Event of Default) shall have occurred and be continuing or would result from such the issuance of such Incremental Notes.
Appears in 1 contract
Incremental Notes. (a) The Issuer Borrower may at any time or from time to time after time, upon written notice to the earlier Administrative Agent, specifying in reasonable detail the proposed terms thereof, request to issue one or more series of senior secured or senior unsecured, senior subordinated or subordinated notes (xwhich notes, if secured, may either have the same Lien priority as the Obligations or may be secured by a Lien ranking junior to the Lien securing the Obligations) the first anniversary of the Closing Date and (ysuch notes, collectively, “Incremental Notes”) the issuance of Delayed Draw Notes in an aggregate principal amount, together with the aggregate amount equal to the Delayed Draw Commitment as in effect on the Closing Date, by notice to the Agent and the Purchasers (an “Incremental Request”), request one or more new commitments which may be of the same Class as any outstanding Notes (a “Note Increase”) or a new Class of Notes (collectively with any Note Increase, the “Incremental Commitments”, not to exceed the Incremental Amount (at the time of issuance).
(b) On As conditions precedent to the applicable issuance of any Incremental Notes pursuant to this Section:
(i) the Borrower shall deliver to the Administrative Agent a certificate dated as of the date of issuance of such Incremental Notes (each, an “Incremental Note Closing Notes Effective Date”) specified in any Incremental Amendment signed by a Responsible Officer of the Borrower, certifying and attaching the resolutions adopted by the Borrower (including through any Note Increase), subject to the satisfaction of extent the terms and conditions in this Section 2.7, (i) (A) each Incremental Purchaser of such Class shall purchase a Note from the Issuer (Borrower is an “Incremental Note”) in an amount equal to its Incremental Commitment of such Class by wire transfer of immediately available funds as directed by the Issuer, (B) the Issuer will deliver to such Incremental Purchaser an Incremental Note issued in the name issuer of such Incremental Purchaser and (CNotes) each Incremental Purchaser of such Class shall become a Purchaser hereunder with respect approving or consenting to the Incremental Commitment of such Class and the Incremental Notes of such Class made pursuant thereto.
(c) Each Incremental Request from the Issuer pursuant to this Section 2.7 shall set forth the requested amount and proposed terms of the relevant Incremental Notes. Incremental Notes may be purchased by any existing Purchaser (but no existing Purchaser will have an obligation to make any Incremental Commitment) or by any Additional Purchaser (each such existing Purchaser or Additional Purchaser providing such Commitment, an “Incremental Purchaser”); provided, that each Purchaser holding Notes at the time of any such Incremental Request (or any of its Affiliates or Related Funds) shall be provided the right of first refusal to participate on a pro rata basis with all other Purchasers holdings Notes in any such Incremental Commitment (which right may be exercised by provision of written notice from any electing Purchaser (or its applicable Affiliate or Related Fund) to the Issuer with the amount of the Incremental Commitment to be provided (not exceeding such Purchaser’s pro rata share) no later than ten (10) Business Days after receipt of the applicable Incremental Request); provided, further, that (i) the Agent shall have acknowledged any Additional Purchaser’s providing such Incremental Commitment to the extent such acknowledgment, if any, would be required under Section 16.3(c) for a sale, assignment or transfer of Notes or Commitments, as applicable, to such Additional Purchaser (ii) with respect to Incremental Commitments, any Affiliated Purchaser providing an Incremental Commitment shall be subject to the same restrictions set forth in Section 16.3(d) as they would otherwise be subject to with respect to any sale, assignment or transfer to such Affiliated Purchaser of Notes or Commitments and (iii) neither KGH, Holdings, the Issuer or any of their Subsidiaries may provide Incremental Commitments or purchase Incremental Notes under this Section 2.7.
(d) The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the applicable date (which shall be no earlier than the date issuance of such Incremental Amendment) specified therein (Notes, and certifying that the “Incremental Amendment Date”) of each of the following conditions (such satisfaction to be evidenced by a certificate of the Chief Financial Officer or Controller of the Issuer delivered by the Issuer representing to the same), together with any other conditions precedent set forth in the Incremental Amendment:
(i) after giving effect to such Incremental Commitments, the conditions of Section 8.3 shall be satisfied; provided, that, in connection with any Incremental Commitment, the primary purpose of which is to finance a Permitted Acquisition, such Incremental Amendment if agreed by the Incremental Purchasers may include a waiver in full or in part of the conditions set forth in following clauses (aii) and through (bvii) (other than with respect to any Event of Default under Section 10.1 or Sections 10.7 or 10.8) of Section 8.3 and in clause (f) of the defined term “Permitted Acquisition”have been satisfied;
(ii) each such Incremental Commitment Notes shall not be in an aggregate principal amount guaranteed by any Person that is not less than $20,000,000 and shall be in an increment of $1,000,000 (provided, that such amount may be less than $20,000,000 if such amount represents all remaining availability under the limit set forth in Section 2.7(d)(iv))a Guarantor;
(iii) (x) the Issuer shall be in pro forma compliance with the minimum Fixed Charge Coverage Ratio covenant (whether or not in effect) set forth in Section 6.5 hereof measured as of the end of the applicable Pro Forma Testing Period and calculated on a pro forma basis assuming that Indebtedness under the such Incremental Notes had been incurred on will be unsecured or secured only by Property constituting the first day of such Pro Forma Testing Period Collateral and that all regularly scheduled interest subject to customary intercreditor arrangements reasonably acceptable to the Administrative Agent and principal payments with respect to such Indebtedness had been paid during such Pro Forma Testing Period, and (y) the Issuer shall have a pro forma Leverage Ratio of not greater than 3.50 to 1.00, measured as of the end of the applicable Pro Forma Testing Period and calculated on a pro forma basis assuming that such Indebtedness under the Incremental Notes had been incurred on the first day of such Pro Forma Testing Period and that all regularly scheduled interest and principal payments with respect to such Indebtedness had been paid during such Pro Forma Testing PeriodBorrower;
(iv) receipt by Agent and the Purchasers of projections showing the projected calculation of the Fixed Charge Coverage Ratio for each four-quarter fiscal period of the Issuer completed over the twelve month period immediately following the Incremental Note Closing Date, such calculation giving pro forma effect to the incurrence of the Incremental Notes on such Incremental Note Closing Dateshall have a final maturity no earlier than the Latest Term Maturity Date then outstanding;
(v) together with the Incremental Notes issued under such Incremental Amendment, the aggregate principal amount of Incremental Notes issued since the Closing Date does not exceed $40,000,000 minus the Revolving Credit Incremental Usage Amount; and
(vi) to the extent reasonably requested by the Agent or Required Purchasers, receipt by the Agent and the Purchasers of (A) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate) other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Agent and the Required Purchasers and (B) reaffirmation agreements and/or such amendments to the Note Documents as may be reasonably requested by the Agent or the Required Purchasers in order to ensure that such Incremental Purchasers are provided with the benefit of the applicable Note Documents.
(e) The terms, provisions and documentation of the Incremental Notes of any Class shall be as agreed between the Issuer and the applicable Incremental Purchasers providing such Incremental Commitments and, except as set forth in clause (f) below, sub-clauses (e)(i) through (e)(vi) below, and as otherwise set forth herein, to the extent not identical to any Class of Notes existing on the Incremental Note Closing Date, the terms and conditions of the Incremental Notes that are effective prior to the then Latest Maturity Date of the Notes shall not be more restrictive, taken as a whole, than those applicable to the Notes existing on the Incremental Note Closing Date, unless (x) this Agreement is amended (solely with the consent of the Issuer and with no consent required by any Purchaser, the Agent or any other Note Party) to conform to such more restrictive terms and conditions for the benefit of all such existing Notes or (y) such more restrictive terms and conditions are satisfactory to the Required Purchasers; provided that, notwithstanding the foregoing, in the case of a Note Increase, the terms, provisions and documentation of such Note Increase shall be identical (other than with respect to upfront fees, OID or similar fees) to the applicable Class of Notes being increased, in each case, as existing on the Incremental Note Closing Date. In any event the Incremental Notes:
(i) shall rank pari passu in right of payment and security with the existing Notes,
(ii) as of the Incremental Amendment Date, shall not have a final scheduled maturity date earlier than the then Latest Maturity Date,
(iii) as of the Incremental Amendment Date, shall have a Weighted Average Life to Maturity of such Incremental Notes shall not be shorter than the then remaining Weighted Average Life to Maturity of the existing Notes,
(iv) shall have an interest rate, and subject to clauses (e)(ii) and (e)(iii) above, amortization determined by the Issuer and the applicable Incremental Purchasers; provided, that the interest rate and amortization for a Note Increase shall be the interest rate and amortization for the Class being increased,
(v) shall have fees determined by the Issuer and the applicable Incremental Purchasers, andthen longest outstanding tranche of Term Loans;
(vi) shall participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments the covenants, terms and conditions and events of the Notes hereunder.
(f) the All-In Yield applicable to the Incremental Notes of each Class shall be determined by the Issuer and the applicable Incremental Purchasers and shall be set forth in each applicable Incremental Amendment; provided, however, that the All-In Yield default applicable to such Incremental Notes shall not be greater more restrictive (other than the applicable All-In Yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to any existing Class pricing, optional prepayment or redemption terms), when taken as a whole, than the covenants, terms and conditions and Events of Notes plus 50 basis points per annum Default under the Loan Documents (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 interest rate (together withBorrower shall make such covenants, as provided in the proviso below, the EurocurrencyEurodollar Rate floor) with respect to such existing Notes is increased so as to cause the then applicable All-In Yield under this Agreement on such existing Notes to equal the All-In Yield then terms and conditions applicable to the Loans pursuant to reasonably acceptable documentation to that effect; and
(vii) such Incremental Notes minus 50 basis points; provided, further, that any increase in All-In Yield shall not be subject to any existing Notes due mandatory redemption or prepayment provisions or rights, except to the application extent any such mandatory redemption or imposition prepayment is required to be applied first pro rata to the Term Loans and other Indebtedness that is secured on a pari passu basis with the Obligations.
(c) The issuance of a EurocurrencyEurodollar Rate floor on any Incremental Notes shall also be effected solely through an increase in (subject, to the extent reasonably requested by the Administrative Agent, to receipt by the Administrative Agent of legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements, including any supplements or implementation of, as applicable) any EurocurrencyEurodollar Rate floor applicable amendments to the Security Documents providing for such existing Notes.
(g) Commitments in respect of Incremental Notes shall become additional Commitments pursuant to an amendment (an “Incremental Amendment”) be secured thereby. The Lenders hereby authorize the Administrative Agent to enter into amendments to this Agreement and, as appropriate, and the other Note Documents, executed by Loan Documents with the Issuer, each Borrower as may be necessary in order to secure any Incremental Purchaser providing Notes with the Collateral and/or to make such Commitments, technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Agent (at Borrower in connection with the written direction issuance of the Requiredsuch Incremental Notes, in each case on terms consistent with this Section 2.26.
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