Equity Cure Clause Samples
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Equity Cure. Notwithstanding anything to the contrary contained in this Section 11, in the event that the Borrower fails to comply with the requirement of the financial covenant set forth in Section 10.7, from the beginning of any fiscal period until the expiration of the 10th Business Day following the date financial statements referred to in Sections 9.1(a) or (b) are required to be delivered in respect of such fiscal period for which such financial covenant is being measured, any holder of Capital Stock or Stock Equivalents of the Borrower or any direct or indirect parent of the Borrower shall have the right to cure such failure (the “Cure Right”) by causing cash net equity proceeds derived from an issuance of Capital Stock or Stock Equivalents (other than Disqualified Stock, unless reasonably satisfactory to the Administrative Agent) by the Borrower (or from a contribution to the common equity capital of the Borrower) to be contributed, directly or indirectly, as cash common equity to the Borrower, and upon receipt by the Borrower of such cash contribution (such cash amount being referred to as the “Cure Amount”) pursuant to the exercise of such Cure Right, such financial covenant shall be recalculated giving effect to the following pro forma adjustments:
(a) Consolidated EBITDA shall be increased, solely for the purpose of determining the existence of an Event of Default resulting from a breach of the financial covenant set forth in Section 10.7 with respect to any period of four consecutive fiscal quarters that includes the fiscal quarter for which the Cure Right was exercised and not for any other purpose under this Agreement, by an amount equal to the Cure Amount;
(b) Consolidated First Lien Secured Debt shall be decreased solely to the extent proceeds of the Cure Amount are actually applied to prepay any of the Credit Facilities and there shall be no pro forma reduction in Indebtedness with the proceeds of the Cure Amount for determining compliance with the financial covenant set forth in Section 10.7 unless such proceeds are actually applied to prepay Indebtedness under the Credit Facilities; and
(c) if, after giving effect to the foregoing recalculations, the Borrower shall then be in compliance with the requirements of the financial covenant set forth in Section 10.7, the Borrower shall be deemed to have satisfied the requirements of the financial covenant set forth in Section 10.7 as of the relevant date of determination with the same effect as though ther...
Equity Cure. Notwithstanding anything to the contrary contained in Section 7.01, in the event that the Borrower fails to comply with either Financial Covenant, from the end of any fiscal period until the expiration of the 10th Business Day following the date financial statements referred to in Section 5.01(a) or Section 5.01(b), as applicable, are required to be delivered in respect of such fiscal period for which such Financial Covenant is being measured, if the Borrower receives a Specified Equity Contribution, the Borrower may apply the amount of the net cash proceeds thereof to increase EBITDA with respect to such fiscal quarter; provided that (i) in each period of four consecutive fiscal quarters, there shall be no more than two fiscal quarters in which a Specified Equity Contribution is made, (ii) no more than five Specified Equity Contributions shall be made in the aggregate during the term of this Agreement, (iii) the amount of any Specified Equity Contribution shall be no more than the amount required to cause the Borrower to be in pro forma compliance with Section 6.13 for any applicable period, (iv) all Specified Equity Contributions shall be disregarded for purposes of determining any baskets, financial ratio based calculations or pricing with respect to the covenants contained in this Agreement and the calculation of the Available Amount and Required Percentage and (v) there shall be no pro forma reduction in Indebtedness with the proceeds of any Specified Equity Contribution for determining compliance with Section 6.13 for the fiscal quarter in respect of when such Specified Equity Contribution is made (either directly through prepayment or indirectly as a result of the netting of unrestricted cash). Notwithstanding anything to the contrary herein, no Revolving Lender shall be required to fund any Revolving Loans or other advance, and no Issuing Bank shall be required to issue any Letter of Credit, at any time during the period beginning on the date the Borrower notifies any Administrative Agent that it intends to make a Specified Equity Contribution and ending on the date the Specified Equity Contribution is made.
Equity Cure. If a Cure Event occurs, any Cure Fund Payments received by (x) Borrowers, in the case of the Current Ratio or Collateral Coverage Ratio, or (y) Holdings, in the case of the Debt to Capitalization Ratio, in either case, during the applicable Cure Period will, at the request of Borrowers, be included (i) as cash in the calculation of the Collateral Formula Amount (in the event of a Default with respect to the Collateral Coverage Covenant), (ii) Net Worth of Holdings (in the event of a Default with respect to the Debt to Capitalization Covenant) or (iii) as cash in the determination of ▇▇ ▇▇▇▇▇’▇ current assets (in the event of a Default with respect to the Current Ratio Covenant) solely for the purposes of determining compliance with such Financial Covenants at the end of such test period and any subsequent test period that includes such test; provided that (a) the amount of any Cure Fund Payment will be (x) with respect to a Default under the Collateral Coverage Covenant, an amount greater than or equal to the amount required to cause the Collateral Coverage Ratio, determined on a pro forma basis, to equal the Collateral Coverage Cure Target, and (y) with respect to all other Financial Covenant Defaults, an amount greater than or equal to the least amount required to cause the Loan Parties to be in compliance with Financial Covenants, (b) notwithstanding anything in this Agreement to the contrary, all Cure Fund Payments will be disregarded for all other purposes, including calculating basket levels, pricing and other items governed by reference to the Financial Covenants, liquidity or availability and may not be used for any other purpose hereunder, (c) all Cure Fund Payments shall be promptly used by Borrowers to prepay Loans and other Obligations in the manner prescribed by Section 2.4(d), and (d) for the avoidance of doubt, any Loans prepaid with any Cure Fund Payments shall be deemed outstanding for purposes of determining compliance with such financial covenants for the test period in respect of which Cure Fund Payment was received. So long as Borrowers are otherwise entitled to exercise its rights under this Section 8.2, (i) from the effective date of delivery of an irrevocable written notice from Borrowers to Agent of Borrowers’ intent to exercise their rights hereunder (a “Cure Notice”) until the earlier to occur of the end of the applicable Cure Period and the date on which Agent is notified that the Cure Fund Payment will not be made, neither Agen...
Equity Cure. (a) Notwithstanding anything to the contrary contained in Section 8.01, but subject to Sections 8.03(b), (c) and (d), solely for the purpose of determining whether an Event of Default has occurred under the Financial Covenants set forth in Section 6.10 as of the end of any fiscal quarter (such fiscal quarter, a “Cure Quarter”), any equity contribution (in the form of Qualified Capital Stock) made to the Borrower after the last day of such Cure Quarter and on or prior to the tenth (10th) Business Day after the date on which financial statements are required to be delivered pursuant to Section 5.01(a) or (b) with respect to such applicable fiscal quarter (the “Cure Expiration Date”), and such cash will, if so designated by Borrower, be included in the calculation of Consolidated EBITDA for the purposes of determining compliance with the Financial Covenants set forth in Section 6.10 at the end of such fiscal quarter and the subsequent three fiscal quarters (any such equity contribution so included in the calculation of Consolidated EBITDA, an “Equity Cure Contribution”, and the amount of such Equity Cure Contribution, the “Cure Amount”); provided that (i) such Equity Cure Contribution is not used to increase the Cumulative Amount, (ii) such Cure Amount does not exceed the amount necessary to cure any Event of Default under the Financial Covenants as at the end of such applicable fiscal quarter and (iii) the proceeds of such Equity Cure Contribution shall be applied in accordance with Section 2.10(d)(ii) to prepay the Loans. All Equity Cure Contributions shall be disregarded for all purposes of this Agreement other than inclusion in the calculation of Consolidated EBITDA for the purpose of determining compliance with the Financial Covenants set forth in Section 6.10 at the end of such fiscal quarter and the subsequent three fiscal quarters, including the determination of the Cumulative Amount and all components thereof and any baskets with respect to the covenants contained in Article VI. Any reduction in Indebtedness (including, for the avoidance of doubt, the prepayment of the Loans in accordance with Section 2.10(d)(ii)) with the proceeds of any Equity Cure Contribution shall be ignored for purposes of determining compliance with the Financial Covenants. Notwithstanding anything to the contrary contained in Section 8.01, (A) upon receipt of the Cure Amount by Borrower in an amount necessary to cause Borrower to be in compliance with the Financial Covenants ...
Equity Cure. (a) The Borrower has the right to cure or prevent a breach of the financial covenants in Clause 19.1 (DSCR) and Clause 19.2 (Net Leverage) (together, the “Financial Covenants”) so that:
(i) in the case of a cure, the Default which occurred as a result of a breach of the relevant Financial Covenant, if cured in accordance with this Clause 19.5, shall be deemed not to have occurred; or
(ii) in the case of a prevention, the Default which would otherwise have occurred as a result of a breach of the relevant Financial Covenant will not occur.
(b) A breach of a Financial Covenant may be deemed cured (a “cure”) upon receipt from the Shareholder by the Borrower of an amount of cash proceeds following a New Shareholder Injection which are (in aggregate) sufficient to cure the relevant breach of a Financial Covenant pursuant to this Clause 19.5 (a “Cure Amount”) not later than the date falling 5 Business Days after the last date for delivery of the Compliance Certificate for the relevant Calculation Period to which that cure relates.
(c) Any Cure Amount received by the Borrower shall be applied for the purpose of re-testing the relevant Financial Covenant as follows:
(i) in the case of the DSCR, by adding the relevant Cure Amount to Cashflow for the Calculation Period (and each subsequent Calculation Period that includes the date on which such Cure Amount is received); and
(ii) in the case of Net Leverage, reducing Consolidated Total Borrowings of the Group with the relevant Cure Amount and testing the Financial Covenant pro forma for such reduction as at the relevant Test Date.
(d) If the re-testing of the relevant Financial Covenant after giving effect to paragraph (c) above demonstrates no breach has occurred in respect of the applicable Calculation Period, then the relevant breach shall be deemed to have been remedied.
(e) A Financial Covenant breach may be cured up to two times in each calendar year and up to three times over the life of the Facility. No cure shall be permitted in consecutive financial quarters.
(f) Any cure shall be notified by the Borrower to the Agent at the time that the relevant Cure Amount is received by the Borrower, provided that any New Shareholder Injection (other than any New Shareholder Injection received pursuant to Clause 4.9 of the Sponsor Indemnity) received by the Borrower during the period of two financial quarters ending on the relevant Test Date of which the relevant cash proceeds are applied to test Net Leverage for the Cal...
Equity Cure. (a) The Company shall have the right to cure any breach of the requirements in Clause 24.2 (Financial condition) in relation to a Relevant Period by giving notice to the Agent and receiving the proceeds by no later than the date falling 15 Business Days after the earlier of (x) the last date for the delivery of the financial statements and the related Compliance Certificate in accordance with Clause 23.2 (Provisions and contents of Compliance Certificate) and (y) delivery of such financial statements and Compliance Certificate in respect of that Relevant Period (the “Required Date”) of a New Investment, provided that such right to cure may not be exercised (i) in respect of consecutive Relevant Periods and (ii) more than three times during the life of the Facility. The notice shall be accompanied by a revised Compliance Certificate indicating compliance with the requirements of Clause 24.2 (Financial condition) in respect of the Relevant Period.
(b) The net proceeds of the New Investment must be received by the Company no later than the Required Date and all of the net cash proceeds of the New Investment so received shall be applied by the Company promptly (and in any event within five (5) Business Days of the Company’s receipt thereof) in permanent reduction of Total Outstandings under the Facility (and for the avoidance of doubt the Commitments under the Facility will be cancelled correspondingly) provided that no such reduction and/or cancellation shall be required in respect of such Commitments under the Facility for any amounts of any New Investment applied in accordance with clause 24.5(b) (Equity Cure) of the SSRCF.
(c) In recalculating the Drawn Gross Leverage Ratio for that Relevant Period pursuant to paragraph (a) above, the net cash proceeds of such New Investment received by the Company shall be deducted from Total Outstandings under the Facility and shall be deemed to have been received immediately prior to the last day of that Relevant Period.
(d) For the avoidance of doubt, any cure rights exercised will only have the effect of curing the relevant breach under this Clause 24 and will have no other effect (such as relating to the calculation of Margin).
(e) If the Company exercises it right under paragraph (a) above, then notwithstanding any provision in Schedule 15 (Incurrence Covenants Schedule) to the contrary, for one year after that Required Date it will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or...
Equity Cure. 21.3.1 In this Clause:
Equity Cure. Solely for purposes of determining compliance with the financial covenants set forth in this Section 6.01, Eligible Equity Proceeds received after the Closing Date and on or prior to the earlier of the date on which the Guarantor’s Forms 10-K or 10-Q are filed or required to be filed in respect of the fiscal quarter most recently ended (the "Specified Fiscal Quarter") shall, at the request of Borrower, be included in the calculation of Consolidated EBITDA for the purposes of determining compliance with the financial covenants set forth in Sections 6.01(a) and (b) above for the Specified Fiscal Quarter (and will remain in the calculation of Consolidated EBITDA for such Specified Fiscal Quarter when calculating compliance with Sections 6.01(a) and (b) for the subsequent three quarter ends which include such Specified Fiscal Quarter) (any such equity contribution so included in the calculation of Consolidated EBITDA, a "Specified Equity Contribution"); provided that (i) there shall not be more than two Specified Equity Contributions during the term of this Agreement and (ii) not more than one Specified Equity Contribution may be made in any four quarter period. For the avoidance of doubt, all Specified Equity Contributions shall be disregarded for all other purposes of this Agreement.
Equity Cure. Notwithstanding anything to the contrary contained in this Section 11, in the event that Holdings fails to comply with the requirement of the financial covenants set forth in Section 10.7, from the end of such applicable Test Period until the expiration of the 10th Business Day following the date the Section 9.1 Financials in respect of such fiscal period for which such financial covenant is being measured are required to be delivered pursuant to Section 9.1, any holder of Capital Stock or Stock Equivalents of Holdings (other than a Restricted Subsidiary of Holdings) or any direct or indirect parent of Holdings shall have the right to cure such failure (the “Cure Right”) by causing cash net equity proceeds derived from an issuance of Capital Stock or Stock Equivalents (other than Disqualified Stock, unless reasonably satisfactory to the Administrative Agent) by Holdings to be contributed as common equity to the Borrower, and upon receipt by the Borrower of such cash contribution (such cash amount being referred to as the “Cure Amount”) pursuant to the exercise of such Cure Right, such financial covenant shall be recalculated giving effect to the following pro forma adjustments:
(a) Consolidated EBITDA shall be increased, solely for the purpose of determining the existence of an Event of Default resulting from a breach of the financial covenants set forth in Section 10.7 with respect to any period of four consecutive fiscal quarters that includes the fiscal quarter for which the Cure Right was exercised and not for any other purpose under this Agreement, by an amount equal to the Cure Amount;
Equity Cure. (a) Notwithstanding anything to the contrary contained in this Agreement, in the event that both (i) Borrower fails (or, but for the operation of this Section 10.12, would fail) to comply with the requirements of any of the covenants set forth in Sections 9.08, 9.09 or 9.10, to the extent applicable, as of the end of any fiscal quarter or year (each, a “Covenant Default”), and (ii) prior to the 10th day subsequent to the date the Compliance Certificate calculating the covenants set forth in Sections 9.08, 9.09 or 9.10, to the extent applicable to the period covered by such certificate, is required to be delivered pursuant to Section 8.01(a) or (b) for such fiscal quarter or year, Borrower receives cash contributions to its capital from Parent in an amount sufficient to cause Borrower to be in compliance with the requirements of the covenants set forth in Section 9.08, 9.09 and 9.10 as provided below (the “Cure Right”), then upon receipt by Borrower of such cash (the “Cure Amount”), Borrower shall apply such Cure Amount as a mandatory prepayment, to be applied to the Loans in Lender’s sole discretion, and the Borrower shall recalculate the covenants set forth in Sections 9.08, 9.09 or 9.10, to the extent applicable, giving effect to the following pro forma adjustments:
(i) Consolidated EBITDA shall be increased for the applicable fiscal quarter and any four quarter period that includes such fiscal quarter, solely for the purpose of measuring the covenants set forth in Sections 9.08, 9.09 or 9.10, to the extent applicable, and not for any other purpose under this Agreement, by an amount equal to the Cure Amount; and
(ii) If, after giving effect to the foregoing recalculations, Borrower shall then be in compliance with the requirements of the covenants set forth in Sections 9.08, 9.09 or 9.10, to the extent applicable, Borrower shall be deemed to have satisfied the requirements of the covenants set forth in Sections 9.08, 9.09 or 9.10, to the extent applicable, as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, and the applicable breach or default of the covenant set forth in Sections 9.08, 9.09 or 9.10, shall be deemed not to have occurred or existed for the purposes of this Agreement.
(b) During such 10-day period, Lender agrees that no actions may be taken in respect of the exercise of remedies under any provision of this Agreement with respect to the applicable Covenant Defau...