Compliance Yes No. 4 If as of the last day of any Fiscal Year, Holdings and its Subsidiaries have made cash Capital Expenditures in the period consisting of four (4) Fiscal Quarters then ended in an aggregate amount less than $15,000,000, then so long as no Event of Default has occurred an amount equal to the lesser of (a) fifty percent (50%) of the unused portion of such permitted cash Capital Expenditures for such Fiscal Year (excluding any unused amounts carried over from the Fiscal Year prior to such Fiscal Year) and (b) $7,500,000 may be carried over for expenditure in the immediately following Fiscal Year, and if any such amount is so carried over, will be deemed used in the applicable subsequent Fiscal Year before the amount of permitted cash Capital Expenditures for such following Fiscal Year set forth above. EXHIBIT E-1
Compliance Yes No. 5 Only calculated for the compliance certificate delivered with the year-end financials. IN WITNESS THEREOF, I have hereto signed my name to this Compliance Certificate as of , . XXXXXXX PRODUCTION SERVICES, INC. By: Name: Xxxx Xxxxx Title: Chief Financial Officer, Treasurer and Secretary EXHIBIT E NOTICE OF BORROWING [Date] Xxxxx Fargo Bank, National Association 0000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx Xxxxxxx, Xxxxx 00000 Attn: Xxxxxx X. Xxxxxxxx III Telephone: (000) 000-0000 Telecopy: (000) 000-0000 Email: xxxxxxxx@xxxxxxxxxx.xxx Ladies and Gentlemen: The undersigned, Xxxxxxx Production Services, Inc., a Delaware corporation (“Borrower”), refers to the Credit Agreement dated as of May 2, 2014 (as the same may be amended or modified from time-to-time, the “Credit Agreement,” the defined terms of which are used in this Notice of Borrowing as defined therein unless otherwise defined in this Notice of Borrowing) among the Borrower, the lenders party thereto from time to time (the “Lenders”) and Xxxxx Fargo Bank, National Association, as Administrative Agent, Issuing Lender and Swingline Lender (as each such term is defined therein). The Borrower hereby gives you irrevocable notice pursuant to [Section 2.5(a)][Section 2.4(e)] of the Credit Agreement that the Borrower hereby requests a Borrowing consisting of [Revolving Advances][Swingline Advances] (the “Proposed Borrowing”), and in connection with that request sets forth below the information relating to such Proposed Borrowing as required by the Credit Agreement: The Business Day of the Proposed Borrowing is , . The Proposed Borrowing will be composed of [Base Rate Advances][Eurodollar Advances][Swingline Advances]. The aggregate amount of the Proposed Borrowing is $ .1 [The Interest Period for each Eurodollar Advance made as part of the Proposed Borrowing is [one][three][six] month(s)]. The Borrower hereby certifies that the following statements are true on the date hereof, and will be true on the date of the Proposed Borrowing:
Compliance Yes No. (1) To the extent characterized as interest on the income statements of Holdings and its Subsidiaries for such Measurement Period pursuant to FASB Interpretation No. 133 — Accounting for Derivative Instruments and Hedging Activities (June 1000), xxxxxxx adjustments in connection with any interest rate Swap Contract entered into by Holdings or any of its Subsidiaries shall be excluded.
Compliance Yes No. 3 (1) As of the last day of the fiscal quarter ending December 31, 2006, Consolidated EBITDA for the fiscal quarter then ended; (2) as of the last day of the fiscal quarter ending March 31, 2007, Consolidated EBITDA for the two fiscal quarters then ended; (3) as of the last day of the fiscal quarter ending June 30, 2007, Consolidated EBITDA for the three fiscal quarters then ended;and (4) as of the last day of each fiscal quarter ending on or after September 30, 2007, Consolidated EBITDA for the four fiscal quarters then ended.
Compliance Yes No. 21 Non-cash charges shall only include non-cash charges resulting from extraordinary, non-recurring events or circumstances for such period. 22 Cash dividends and distributions shall only include dividends or distributions received by the Credit Parties from any Permitted Investments pursuant to Section 6.3(k) or (l) of the Credit Agreement.
Compliance Yes No. (Waived During Waiver Period) 1 Please provide an itemization of indebtedness to be excluded. 2To the extent characterized as interest on the income statements of Holdings and its Subsidiaries for such Measurement Period pursuant to FASB Interpretation No. 133 – Accounting for Derivative Instruments and Hedging Activities (June 0000), xxxxxxx adjustments in connection with any interest rate Swap Contract entered into by Holdings or any of its Subsidiaries shall be excluded.
Compliance Yes No. 3 In the case of the fiscal quarter ending June 30, 2010, for such fiscal quarter; in the case of the fiscal quarter ending September 30, 2010, the two fiscal quarter period then ended; in the case of the fiscal quarter ending December 31, 2010, the three fiscal quarter period then ended; and in the case of any fiscal quarter ending after December 31, 2010, the four fiscal quarter period then ended. 4 See Schedule 3 for detailed calculation of Consolidated Interest Expense. 5 In the case of the fiscal quarter ending June 30, 2010, for such fiscal quarter; in the case of the fiscal quarter ending September 30, 2010, the two fiscal quarter period then ended; in the case of the fiscal quarter ending December 31, 2010, the three fiscal quarter period then ended; and in the case of any fiscal quarter ending after December 31, 2010, the four fiscal quarter period then ended.
Compliance Yes No. 8 For the Borrower, its Subsidiaries and the Holdco Entities determined on a Consolidated basis, the total interest, letter of credit fees, and other fees incurred in connection with any Debt for such period, whether paid or accrued, including, without limitation, all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing, all as determined in conformity with GAAP. To the extent that the EBITDA included in the calculation of the Interest Coverage Ratio for any period shall include pro forma amounts in connection with the Acquisition of any Person during such period, the Interest Expense shall also include pro forma amounts with respect to any Debt incurred or assumed by the Borrower, any of its Subsidiaries or any of the Holdco Entities in connection with the Acquisition of such Person. 9 Calculate the Interest Expense for the four fiscal quarter period then ended. IN WITNESS THEREOF, I have hereto signed my name to this Compliance Certificate as of , 20 . XXXXX ENERGY PARTNERS, L.P., a Delaware limited partnership By: HEP Logistics Holdings, L.P., a Delaware limited partnership, its general partner By: Xxxxx Logistic Services, L.L.C., a Delaware limited liability company, its general partner By: Name: Title: EXHIBIT D FORM OF THIRD AMENDED AND RESTATED GUARANTY AGREEMENT This Third Amended and Restated Guaranty Agreement dated as of July 27, 2017 (this “Guaranty”) is executed by each of the undersigned (individually a “Guarantor” and collectively, the “Guarantors”), in favor of Xxxxx Fargo Bank, National Association, as Administrative Agent (in such capacity, the “Administrative Agent”) for the ratable benefit of itself, the Lenders (as defined below), the Issuing Banks (as defined below), and the Swap Counterparties (as defined below) (together with the Administrative Agent, the Issuing Banks, and the Lenders, individually a “Beneficiary”, and collectively, the “Beneficiaries”).
Compliance Yes No. 1 Calculated as of each fiscal quarter end, commencing with the quarter ending June 30, 2013. 2 In accordance with the Credit Agreement, EBITDAX shall be subject to pro forma adjustments for acquisitions and asset sales assuming that such transactions had occurred on the first day of the determination period. 3 Items (ii) - (viii) shall be included to the extent deducted in determining Consolidated Net Income. 4 “non-cash charges” shall include any provision for the reduction in the carrying value of assets recorded in accordance with GAAP and including non-cash charges resulting from the requirements of ASC 410, 718 and 815. 5 “non-cash items of income” shall include non-cash income resulting from the requirements of ASC 410, 718 and 815.
