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.
Appears in 2 contracts
Sources: Credit Agreement (Hill-Rom Holdings, Inc.), Credit Agreement (Hill-Rom Holdings, Inc.)
Equity Cure. Notwithstanding anything At any time after delivery of the quarterly financial statements and Compliance Certificate to the contrary contained Agent in accordance with Section 7.014.1, in the event that the Borrower fails Credit Parties fail to comply with either Financial Covenant, from the end financial covenant set forth in Section 6.3 as of the last day of any fiscal period until calendar quarter any cash equity contribution to Holdings funded with proceeds of Permitted Cure Securities (any such equity contribution so included in the expiration calculation of EBITDA as provided below in this Section 6.5, a “Specified Equity Contribution”) after the 10th Business Day following last day of such calendar quarter and on or prior to the date day that is ten (10) days after the day on which 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 that calendar quarter will, at the irrevocable election of Borrower Representative, be included in the calculation of EBITDA solely for the purposes of determining compliance with the covenant set forth in Section 6.3 at the end of such fiscal quartercalendar quarter and any subsequent period that includes such calendar quarter (the “Cure Right”); provided that (ia) in each period notice of four consecutive fiscal quarters, there shall be no more than two fiscal quarters in which Holdings’ intent to accept a Specified Equity Contribution is madeshall be delivered by Borrower Representative no later than the day on which financial statements are required to be delivered with respect to the applicable calendar quarter, (iib) in each consecutive four (4) calendar quarter period there will be at least two (2) calendar quarters in which no more than five Specified Equity Contributions shall be made in the aggregate during the term of this AgreementCure Right is exercised, (iiic) the amount of any Specified Equity Contribution shall will be no more greater than the amount required to cause the Borrower Credit Parties to be in compliance with such financial covenants, (d) all Specified Equity Contributions will be disregarded for purposes of the calculation of EBITDA for all other purposes, including calculating basket levels, pricing, determining compliance with incurrence based or pro forma compliance with Section 6.13 for calculations or conditions and any applicable periodother items governed by reference to EBITDA and shall be deemed to not result in an increase in cash, (ive) the Cure Right shall be exercised no more than five (5) times in the aggregate after the Closing Date, (f) the Cure Right shall not be exercised in any two (2) consecutive calendar quarters and (g) the proceeds received by Holdings from all Specified Equity Contributions shall be disregarded promptly used by Credit Parties to prepay Term Loans in accordance with Section 2.1(a)(ii)(B)(v). Upon Agent’s receipt of notice from Borrower Representative of its election to exercise the Cure Right pursuant to this Section 6.5 no later than the day on which financial statements are required to be delivered for purposes of determining the applicable calendar quarter, then, until the day that is ten (10) days after such date, neither Agent nor any baskets, financial ratio based calculations Lender shall exercise the right to accelerate the Loans or pricing with respect terminate the Term Loan Commitments and neither Agent nor any Lender shall exercise any right to the covenants contained in this Agreement and the calculation foreclose on or take possession of the Available Amount Collateral solely on the basis of an Event of Default having occurred 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 being continuing under Sections 6.3 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 madelast day of such calendar quarter.
Appears in 2 contracts
Sources: Credit, Security and Guaranty Agreement (Term Loan) (Xtant Medical Holdings, Inc.), Credit, Security and Guaranty Agreement (Term Loan) (Xtant Medical Holdings, Inc.)
Equity Cure. Notwithstanding anything At any time after delivery of the quarterly financial statements and Compliance Certificate to the contrary contained Agent in accordance with Section 7.014.1, in the event that the Borrower fails Credit Parties fail to comply with either Financial Covenant, from the end financial covenant set forth in Section 6.3 as of the last day of any fiscal period until calendar quarter any cash equity contribution to Holdings funded with proceeds of Permitted Cure Securities (any such equity contribution so included in the expiration calculation of EBITDA as provided below in this Section 6.5, a “Specified Equity Contribution”) after the 10th Business Day following last day of such calendar quarter and on or prior to the date day that is ten (10) days after the day on which 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 that calendar quarter will, at the irrevocable election of Borrower Representative, be included in the calculation of EBITDA solely for the purposes of determining compliance with the covenant set forth in Section 6.3 at the end of such fiscal quartercalendar quarter and any subsequent period that includes such calendar quarter (the “Cure Right”); provided that (ia) in each period notice of four consecutive fiscal quarters, there shall be no more than two fiscal quarters in which Holdings’ intent to accept a Specified Equity Contribution is madeshall be delivered by Borrower Representative no later than the day on which financial statements are required to be delivered with respect to the applicable calendar quarter, (iib) in each consecutive four (4) calendar quarter period there will be at least two (2) calendar quarters in which no more than five Specified Equity Contributions shall be made in the aggregate during the term of this AgreementCure Right is exercised, (iiic) the amount of any Specified Equity Contribution shall will be no more greater than the amount required to cause the Borrower Credit Parties to be in compliance with such financial covenants, (d) all Specified Equity Contributions will be disregarded for purposes of the calculation of EBITDA for all other purposes, including calculating basket levels, pricing, determining compliance with incurrence based or pro forma compliance with Section 6.13 for calculations or conditions and any applicable periodother items governed by reference to EBITDA and shall be deemed to not result in an increase in cash, (ive) the Cure Right shall be exercised no more than five (5) times in the aggregate after the Closing Date, (f) the Cure Right shall not be exercised in any two (2) consecutive calendar quarters and (g) the proceeds received by Holdings from all Specified Equity Contributions shall be disregarded for purposes of determining any baskets, financial ratio based calculations or pricing promptly used by Credit Parties to prepay Term Loans in accordance with respect to the covenants contained in this Agreement and the calculation Section 2.1(a)(ii)(B)(v) of the Available Amount and Required Percentage and (v) there shall Affiliated Credit Agreement. Upon Agent’s receipt of notice from Borrower Representative of its election to exercise the Cure Right pursuant to this Section 6.5 no later than the day on which financial statements are required to be no pro forma reduction in Indebtedness with the proceeds of any Specified Equity Contribution for determining compliance with Section 6.13 delivered for the fiscal quarter applicable calendar quarter, then, until the day that is ten (10) days after such date, neither Agent nor any Lender shall exercise the right to accelerate the Loans or terminate the Revolving Loan Commitments and neither Agent nor any Lender shall exercise any right to foreclose on or take possession of the Collateral solely on the basis of an Event of Default having occurred and being continuing under Sections 6.3 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 madelast day of such calendar quarter.
Appears in 2 contracts
Sources: Credit, Security and Guaranty Agreement (Revolving Loan) (Xtant Medical Holdings, Inc.), Credit, Security and Guaranty Agreement (Xtant Medical Holdings, Inc.)
Equity Cure. Notwithstanding anything to the contrary contained in Section 7.01, in In the event that the Borrower fails Loan Parties fail to comply with either Financial Covenant, from the end financial covenants set forth in Section 7.11(a) or (b) as of the last day of any fiscal period until quarter, any cash equity contribution to the expiration Borrowers (funded with proceeds of common equity issued by Holdings or a parent entity thereof or other equity issued by Holdings or a parent entity thereof) on or prior to the 10th Business Day following day that is ten (10) days after the date day on which financial statements referred to in Section 5.01(a) or Section 5.01(b), as applicable, are required to be delivered for that fiscal quarter will, at the irrevocable election of the Borrowers, be included in respect the calculation of Consolidated EBITDA solely for the purposes of determining compliance with such covenant at the end of such fiscal quarter and any subsequent period for which that includes such Financial Covenant is being measuredfiscal quarter (any such equity contribution so included in the calculation of Consolidated EBITDA, 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 (ia) notice of the Borrowers’ intent to make a Specified Equity Contribution shall be delivered no later than the day on which financial statements are required to be delivered for the applicable fiscal quarter, (b) in each consecutive four (4) Fiscal Quarter period of four consecutive fiscal quarters, there shall will be no more than at least two (2) fiscal quarters in which a no 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, (iiic) the amount of any Specified Equity Contribution shall will be no more greater than the amount required to cause the Borrower Loan Parties to be in pro forma compliance with Section 6.13 for any applicable periodsuch covenants, (ivd) all Specified Equity Contributions shall will 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 Consolidated EBITDA for all other purposes, including calculating basket levels, pricing and Required Percentage and other items governed by reference to Consolidated EBITDA, (ve) there shall be no pro forma reduction more than four (4) Specified Equity Contributions made in Indebtedness the aggregate after the Closing Date, (f) any Loans prepaid with the proceeds of any Specified Equity Contributions shall be deemed outstanding for purposes of determining compliance with such covenants for the Fiscal Quarter being cured and the next three (3) fiscal quarters, and (g) the proceeds received by the Borrowers from each Specified Equity Contribution for determining compliance with will be promptly used by the Borrowers to prepay the Term Loans. From the effective date of delivery of such cure notice to the Administrative Agent until the date that is ten (10) days after the day on which the applicable financial statements are required to be delivered, neither the Administrative Agent nor any Lender shall impose a default interest rate, accelerate the Obligations, terminate the Revolving Credit Commitment or exercise any other right or remedy against the Loan Parties or any of their Subsidiaries or any of their respective properties solely on the basis of an Event of Default having occurred under Section 6.13 for the fiscal quarter in respect of when such Specified Equity Contribution is made (either directly through prepayment or indirectly 8.01(b) as a result of the netting Loan Parties’ failure to comply with the financial covenants referenced in such cure notice; provided that for purposes of unrestricted cash). Notwithstanding anything determining the satisfaction of the conditions precedent to a borrowing under the contrary hereinRevolving Credit Commitments pursuant to Section 4.02, no Revolving Lender a Default shall be required deemed to fund any Revolving Loans or other advance, and no Issuing Bank shall be required to issue any Letter exist. Upon receipt by Borrowers 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 madeContribution, any applicable Default or Event of Default shall be deemed to have been cured.
Appears in 2 contracts
Sources: Credit Agreement (Ichor Holdings, Ltd.), Credit Agreement (Ichor Holdings, Ltd.)
Equity Cure. Notwithstanding anything to the contrary contained in Section 7.01, in In the event that the Borrower fails to comply with either Financial Covenant, from the end of any fiscal period until the expiration requirements of the 10th Business Day Consolidated Total Net Leverage Ratio covenant or the Consolidated Fixed Charge Coverage Ratio covenant set forth above, then during the period commencing immediately following the date last day of the applicable fiscal quarter with respect to which such financial covenants are being tested and on or prior to the tenth day after the day on which financial statements referred to in Section 5.01(a) or Section 5.01(b), as applicable, are required to be delivered for such fiscal quarter (the “Equity Cure Period”), Sponsor and its Affiliates shall have the right to make an equity investment (in respect the form of Qualified Equity) in Holdings in cash, and such cash will, at the irrevocable election of the Borrower, be included in the calculation of Consolidated Adjusted EBITDA and Pro Forma Consolidated Adjusted EBITDA for the purposes of determining compliance with such covenants at the end of such fiscal period for which quarter and the subsequent three fiscal quarters (all such Financial Covenant is being measuredequity investments made during any Equity Cure Period, if the Borrower receives collectively, a Specified “Qualified Equity ContributionInvestment”); provided, the Borrower may apply the amount of the net cash proceeds thereof to increase EBITDA with respect to such fiscal quarter; provided that (i) the proceeds of any such Qualified Equity Investment are actually received by Holdings during the applicable Equity Cure Period and applied by the Borrower in each period prepayment of four consecutive the Loans in accordance with Section 2.04(b)(iv) (provided, however, that such prepayments shall be disregarded, and the Loans so prepaid shall be deemed to remain outstanding, for the purposes of determining compliance with such covenants at the end of such fiscal quarter and the subsequent three fiscal quarters, there shall be no more than two fiscal quarters in which a Specified Equity Contribution is made), (ii) no Qualified Equity Investments shall not be made more than five Specified Equity Contributions shall be made in the aggregate two times during the term of this Agreement, (iii) Qualified Equity Investments shall not be made in any two consecutive fiscal quarters, (iv) the amount of any Specified such Qualified Equity Contribution Investment shall be no more greater than the amount required to cause the Borrower to be in pro forma compliance with Section 6.13 for any the 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 Section 7.11, and (v) there any Qualified Equity Investment shall be no pro forma reduction included in Indebtedness with the proceeds calculation of any Specified Equity Contribution Consolidated Adjusted EBITDA and Pro Forma Consolidated Adjusted EBITDA solely for the purpose of determining compliance with all applicable financial covenants and for no other purpose (including calculating any basket levels, pricing or other items governed by reference to Consolidated Adjusted EBITDA or Pro Forma Consolidated Adjusted EBITDA). If, after giving effect to the foregoing pro forma adjustment, the Borrower is in compliance with the applicable financial covenants set forth in Section 6.13 for 7.11, then the fiscal quarter in respect Borrower shall be deemed to have satisfied the requirements of when such Specified Equity Contribution is made (either directly through prepayment or indirectly Section 7.11 as a result of the netting relevant date of unrestricted cash). Notwithstanding anything determination with the same effect as though there had been no failure to comply on such date, and the contrary herein, no Revolving Lender applicable default of Section 7.11 that had occurred shall be required deemed cured for purposes of this Agreement. The parties hereby acknowledge that this Section shall not result in any adjustment to fund any Revolving Loans or amounts other advance, than the amounts of the Consolidated Adjusted EBITDA and no Issuing Bank shall be required Pro Forma Consolidated Adjusted EBITDA referred 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 madein this Section 7.11(c).
Appears in 2 contracts
Sources: Credit Agreement (Cambium Learning Group, Inc.), Credit Agreement (Cambium Learning Group, Inc.)
Equity Cure. Notwithstanding anything to the contrary contained in Section 7.01, in In the event that the Borrower fails to comply with either the Financial Covenant, from the end Covenants as of any fiscal period until Test Date, any cash equity contribution (or qualified preferred equity or other equity on terms reasonably satisfactory to the expiration Administrative Agent) in the Borrower after the beginning of the 10th applicable Fiscal Quarter ending on such Test Date and on or prior to the day that is ten (10) Business Day following Days after the date day on which financial statements referred to in Section 5.01(a) or Section 5.01(b), as applicable, are required to be delivered for the Fiscal Quarter ended on such Test Date will, at the irrevocable election of the Borrower, be included in respect the calculation of Consolidated Adjusted EBITDA solely for the purposes of determining compliance with the Financial Covenants as of such fiscal period Test Date and as of any subsequent Test Date that includes such Fiscal Quarter for which purposes of determining compliance with the Financial Covenants (any such Financial Covenant is being measuredequity contribution so included in the calculation of Consolidated Adjusted EBITDA, 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 may be made in the aggregate any four consecutive Fiscal Quarter period and only three Specified Equity Contributions may be made during the term of this Agreement, (iiiii) the amount of any Specified Equity Contribution shall will be no more greater than the amount required to cause the Borrower to be in pro forma compliance with Section 6.13 for any applicable periodthe Financial Covenants, (iviii) all Specified Equity Contributions shall will be disregarded for all other purposes, including the calculation of Consolidated Adjusted EBITDA for all purposes of determining any basketsother than the compliance with the Financial Covenants for such applicable Test Period and subsequent Test Periods that include the Fiscal Quarter ending on the applicable Test Date, financial ratio based calculations or pricing and including calculating basket levels and other items governed by reference to Consolidated Adjusted EBITDA, (iv) with respect to the covenants contained in this Agreement and the calculation Fiscal Quarter for which it is contributed to cure a breach of the Available Amount Financial Covenants, any Specified Equity Contribution shall not reduce the outstanding Indebtedness of the Borrower for such Fiscal Quarter (it being understood and Required Percentage agreed that such limitation shall not apply in subsequent Fiscal Quarters if actually applied to repay Term Loans) and (v) there the Borrower shall not, unless otherwise agreed by the Required Lenders under the Revolving Facility, be no pro forma reduction in Indebtedness with permitted to incur Revolving Loans or request the issuance of Letters of Credit during the ten Business Day period referred to above unless and until the Borrower has received 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 madeContribution.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (Bioventus Inc.), Credit and Guaranty Agreement (Bioventus Inc.)
Equity Cure. Notwithstanding anything to the contrary contained in Section 7.01, in In the event that the Borrower fails Loan Parties fail to comply with either Financial Covenant, from the end financial covenant set forth in Section 6.03 as of the last day of any fiscal period until the expiration of the 10th Borrower, any cash equity contribution to the Borrower (funded with proceeds of common equity issued by the Borrower) after the last day of such fiscal period and on or prior to the day that is ten (10) Business Day following Days after the date on which financial statements referred to in Section 5.01(a) or Section 5.01(b), as applicable, are required to be delivered for such fiscal period (the “Cure Expiration Date”) will, at the irrevocable election of the Borrower, be included in respect the calculation of Consolidated EBITDA solely for the purposes of determining compliance with such covenant at the end of such fiscal quarter and any subsequent period for which that includes such Financial Covenant is being measuredfiscal quarter (any such equity contribution so included in the calculation of Consolidated EBITDA, 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 (ia) notice of the Borrower’s intent to make a Specified Equity Contribution shall be delivered by the Borrower to the Administrative Agent no later than the day on which financial statements are required to be delivered for the applicable fiscal quarter (the “Notice of Intent to Cure”), (b) in each consecutive four (4) fiscal quarter period of four consecutive fiscal quarters, there shall will be no more than at least two (2) fiscal quarters in which a no 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, (iiic) the amount of any Specified Equity Contribution shall will be no more greater than the amount required to cause the Borrower Loan Parties to be in pro forma compliance with Section 6.13 for any applicable periodsuch covenants, (ivd) all Specified Equity Contributions shall will 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 Consolidated EBITDA for all other purposes, including calculating basket levels, pricing and other items governed by reference to Consolidated EBITDA, and shall not be treated as reducing outstanding Debt for such fiscal period (if applied to repay Debt) or increasing cash or Cash Equivalents for purposes of cash netting in the Available Amount and Required Percentage and Consolidated Debt to Consolidated EBITDA Ratio (vprovided that such limitations shall not apply in subsequent fiscal quarters), (e) there shall be no pro forma reduction more than three (3) Specified Equity Contributions made in Indebtedness with the proceeds aggregate after the Closing Date. Upon delivery by the Borrower to the Administrative Agent of a Notice of Intent to Cure, (x) the Administrative Agent and the Lenders may not exercise any rights or remedies under Section 8.02 or under any other Loan Document on the basis of any Specified Equity Contribution for determining compliance with actual or purported Event of Default under Section 6.13 for 6.03 until and unless the fiscal quarter in respect of when such Specified Equity Contribution is made (either directly through prepayment or indirectly as a result Cure Expiration Date has occurred without the receipt by the Borrower 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 (y) the date Borrower shall not be permitted to request or receive any Credit Extension until receipt by the Borrower of the Specified Equity Contribution is madeContribution.
Appears in 2 contracts
Sources: Credit Agreement (Trex Co Inc), Credit Agreement (Trex Co Inc)
Equity Cure. (i) Notwithstanding anything to the contrary contained in Section 7.01this Agreement, in the event that the Borrower fails Loan Parties fail to comply (or anticipate that they may fail to comply) with either the maximum Leverage Ratio covenant contained in this Section 5(bb) (the “Financial Covenant, from ”) as of the end of any fiscal quarter (the “Cure Quarter”), then Borrower shall have the right, during the period (the “Cure Period”) beginning on the first day of the applicable Cure Quarter until the expiration of the 10th tenth (10) Business Day following after the date day on which the financial statements referred with respect to in Section 5.01(a) or Section 5.01(b), as applicable, such test period for which such covenant is being measured are required to be delivered for the applicable Cure Quarter pursuant to Sections 5(d)(i) or 5(d)(ii), as applicable (such financial statements, the “Applicable Financial Statements” and such date, the “Cure Deadline”), to include an amount equal to the cash proceeds of a Specified Equity Contribution (the “Cure Amount”) in EBITDA for the purposes of calculating the Financial Covenant (the “Cure Right”), and pursuant to the exercise of the Cure Right, the Financial Covenant shall be recalculated, (A) upon the date of receipt if such Specified Equity Contribution is received after the delivery of the Applicable Financial Statements or (B) on the date the Applicable Financial Statements are delivered if such Specified Equity Contribution is received prior to the delivery of the Applicable Financial Statements giving effect to a pro forma increase to EBITDA for such test period in an amount equal to such Cure Amount; provided that such pro forma adjustment to EBITDA shall be given solely for the purpose of measuring the Financial Covenant with respect of such to any period that includes the fiscal period quarter for which such Cure Right was exercised and not for any other purpose under any Loan Document (including any other use of the Financial Covenant).
(ii) If, after the receipt of the Cure Amount and the recalculations pursuant to Section 5(cc)(i) above, the Loan Parties shall then be in compliance with the requirements of the Financial Covenant is being measured, if as of the Borrower receives a Specified Equity Contributionlast day of the applicable fiscal quarter, the Borrower may apply Loan Parties shall be deemed to have satisfied the amount requirements of the net cash proceeds thereof Financial Covenant as of the relevant date of determination with the same effect as though there had been no failure to increase EBITDA with respect to comply therewith at such fiscal quarterdate, and the applicable Default that had occurred shall be deemed cured; provided that (iA) in each period of four consecutive fiscal quarters, there shall the Cure Right may be exercised on no more than two fiscal quarters in which a Specified Equity Contribution is made, eight (ii) no more than five Specified Equity Contributions shall be made in the aggregate 8) times during the term of this Agreement, (iiiB) in each four fiscal quarter period, there shall be at least two fiscal quarters in respect of which no Cure Right is exercised, (C) with respect to any exercise of the amount of any Specified Equity Contribution Cure Right, the Cure Amount shall be no more greater than the amount required to cause the Borrower Loan Parties to be in pro forma compliance with Section 6.13 for any applicable periodthe Financial Covenant, (ivD) all Specified Equity Contributions Cure Amounts shall be disregarded for purposes of determining any baskets, financial ratio based calculations baskets or pricing ratios with respect to the covenants contained in this Agreement and the calculation of the Available Amount and Required Percentage Loan Documents and (vE) there shall be no pro forma reduction in Indebtedness Debt (by netting or otherwise) or Consolidated Interest Expense with the proceeds of any Specified Equity Contribution Cure Amount for determining compliance with Section 6.13 the Financial Covenant for the fiscal quarter in respect test period for which such Cure Amount is deemed applied.
(iii) Prior to the Cure Deadline if Borrower notifies the Administrative Agent of when its intent to cure, neither Administrative Agent nor any Lender shall exercise any rights or remedies under Section 8 (or under any other Loan Document available during the continuance of any Default or Event of Default) solely on the basis of any actual or purported failure to comply with the Financial Covenant unless such Specified Equity Contribution failure is made not cured by the Cure Deadline (either directly through prepayment or indirectly as a result it being understood that this sentence shall not have any effect on the rights and remedies of the netting Administrative Agent or the Lenders with respect to any other Default or Event of unrestricted cashDefault pursuant to any other provision of any Loan Document other than breach of the Financial Covenant). Notwithstanding anything to ; provided, that the contrary herein, no Revolving Initial Lender shall be required to fund any Revolving Loans or other advance, and have 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 obligation to make a Specified Equity Contribution and ending on any Loans, prior to receipt of the date the Specified Equity Contribution Cure Amount or such Default or Event of Default is madeotherwise cured or waived.
Appears in 2 contracts
Sources: Credit Agreement (Atlas Energy Solutions Inc.), Credit Agreement (New Atlas HoldCo Inc.)
Equity Cure. Notwithstanding anything to the contrary contained in Section 7.01, in In the event that the Borrower fails Loan Parties fail to comply with either Financial Covenant, from the end financial covenants set forth in Section 7.11(a) or (b) as of the last day of any fiscal period until quarter, any cash equity contribution to the expiration Borrowers (funded with proceeds of common equity issued by Holdings or a parent entity thereof or other equity issued by Holdings or a parent entity thereof) on or prior to the 10th Business Day following day that is ten (10) days after the date day on which financial statements referred to in Section 5.01(a) or Section 5.01(b), as applicable, are required to be delivered for that fiscal quarter will, at the irrevocable election of the Borrowers, be included in respect the calculation of Consolidated EBITDA solely for the purposes of determining compliance with such covenant at the end of such fiscal quarter and any subsequent period for which that includes such Financial Covenant is being measuredfiscal quarter (any such equity contribution so included in the calculation of Consolidated EBITDA, 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 (ia) notice of the Borrowers’ intent to make a Specified Equity Contribution shall be delivered no later than the day on which financial statements are required to be delivered for the applicable fiscal quarter, (b) in each consecutive four (4) fiscal quarter period of four consecutive fiscal quarters, there shall will be no more than at least two (2) fiscal quarters in which a no 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, (iiic) the amount of any Specified Equity Contribution shall will be no more greater than the amount required to cause the Borrower Loan Parties to be in pro forma compliance with Section 6.13 for any applicable periodsuch covenants, (ivd) all Specified Equity Contributions shall will 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 Consolidated EBITDA for all other purposes, including calculating basket levels, pricing and Required Percentage and other items governed by reference to Consolidated EBITDA, (ve) there shall be no pro forma reduction more than four (4) Specified Equity Contributions made in Indebtedness the aggregate after the Restatement Date, (f) any Loans prepaid with the proceeds of any Specified Equity Contributions shall be deemed outstanding for purposes of determining compliance with such covenants for the Fiscal Quarter being cured and the next three (3) fiscal quarters, and (g) the proceeds received by the Borrowers from each Specified Equity Contribution for determining compliance with will be promptly used by the Borrowers to prepay the Term Loans. From the effective date of delivery of such cure notice to the Administrative Agent until the date that is ten (10) days after the day on which the applicable financial statements are required to be delivered, neither the Administrative Agent nor any Lender shall impose a default interest rate, accelerate the Obligations, terminate the Revolving Credit Commitment or exercise any other right or remedy against the Loan Parties or any of their Subsidiaries or any of their respective properties solely on the basis of an Event of Default having occurred under Section 6.13 for the fiscal quarter in respect of when such Specified Equity Contribution is made (either directly through prepayment or indirectly 8.01(b) as a result of the netting Loan Parties’ failure to comply with the financial covenants referenced in such cure notice; provided that for purposes of unrestricted cash). Notwithstanding anything determining the satisfaction of the conditions precedent to a borrowing under the contrary hereinRevolving Credit Commitments pursuant to Section 4.02, no Revolving Lender a Default shall be required deemed to fund any Revolving Loans or other advance, and no Issuing Bank shall be required to issue any Letter exist. Upon receipt by Borrowers 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 madeContribution, any applicable Default or Event of Default shall be deemed to have been cured.
Appears in 2 contracts
Sources: Credit Agreement (Ichor Holdings, Ltd.), Credit Agreement (Ichor Holdings, Ltd.)
Equity Cure. Notwithstanding anything to the contrary contained in Section 7.01Article VIII, in the event that an Event of Default arises under Section 7.11, an equity contribution (in the form of common equity or other equity having terms reasonably acceptable to the Administrative Agent), made to Holdings and contributed in cash as common equity to the Borrower fails to comply with either Financial Covenant, from after the end last day of any fiscal period until quarter and on or prior to the expiration of day that is ten (10) Business Days after the 10th Business Day following the date day on which financial statements referred to in Section 5.01(a) or Section 5.01(b), as applicable, are required to be delivered in respect of for such fiscal period for which such Financial Covenant is being measuredquarter will, if at the Borrower receives a Specified Equity Contribution, the Borrower may apply the amount written request of the net cash proceeds thereof to increase Borrower, be included in the calculation of Consolidated EBITDA with respect to (for such fiscal quarter) solely for the purposes of determining compliance with such financial covenants at the end of such Measurement Period and any subsequent period that includes such fiscal quarter (any such equity contribution, a “Specified Contribution”); provided that 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 and the use of proceeds therefrom will be no more greater than the amount required to cause the Borrower Loan Parties to be in compliance with the applicable financial covenants on a pro forma compliance with Section 6.13 for any applicable periodbasis, (ivii) all Specified Equity Contributions shall and the use of proceeds therefrom will be disregarded for all other purposes under this Agreement (including, to the extent applicable, calculating Consolidated EBITDA for purposes of determining basket levels, pricing and other items governed by reference to Consolidated EBITDA or that include Consolidated EBITDA in the determination thereof in any basketsrespect), 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 (viii) there shall be no pro forma reduction more than five (5) Specified Contributions made in Indebtedness with the aggregate after the Closing Date and no Specified Contributions made in consecutive fiscal quarters, (iv) 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 shall not reduce Indebtedness on a pro forma basis (either directly through prepayment or indirectly as a result of netting Unrestricted Cash) in determining compliance with the netting financial covenants for the fiscal quarter in respect 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 which such Specified Equity Contribution and ending on the date the Specified Equity Contribution is made, and (v) the proceeds of all Specified Contributions will be applied to prepay the Loans in the manner set forth in Section 2.05(b)(iii); provided that, until timely receipt of the applicable Specified Contribution, an Event of Default shall be deemed to exist for all other purposes under this Agreement however, neither the Administrative Agent nor any other Lender shall exercise any right to accelerate the Loans, terminate the Commitments or exercise any right to foreclose or take possession of any Collateral or any other remedy under the Loan Documents, in each case on the basis of any actual or purported Event of Default with respect to the financial covenants set forth in Section 7.11. Upon timely receipt by the Borrowers in cash of the applicable Specified Contribution and payment of the mandatory prepayment pursuant to the terms of this Agreement, the applicable Events of Default shall be deemed waived.
Appears in 2 contracts
Sources: Credit Agreement (Zeta Global Holdings Corp.), Credit Agreement (Zeta Global Holdings Corp.)
Equity Cure. Notwithstanding anything to the contrary contained in Section 7.018.1, solely for the purpose of determining whether an Event of Default has occurred under the financial covenant set forth in Section 6.7 (the event that the Borrower fails to comply with either “Financial Covenant, from ”) as of the end of and for any fiscal period until Test Period ending on the expiration last day of any Fiscal Quarter (such Fiscal Quarter, a “Cure Quarter”), the 10th then existing direct or indirect equity holders of Holdings shall have the right to make an equity contribution, directly or indirectly (which equity shall be common equity or otherwise in a form reasonably acceptable to the Requisite Lenders) in Holdings in cash, which Holdings shall contribute, directly or indirectly, to the Borrower in cash (which equity shall be common equity in such Borrower or otherwise in a form reasonably acceptable to the Requisite Lenders) on or after the last day of such Cure Quarter and on or prior to the fifteenth (15th) Business Day following after the date on which financial statements referred are required to in be delivered pursuant to Section 5.01(a5.1(a) or Section 5.01(b5.1(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 Cure Quarter (i) in each period of four consecutive fiscal quartersthe “Cure Expiration Date”), there shall and all such cash will be no more than two fiscal quarters in which a Specified used by the Borrower to prepay the Loans (any such equity contribution, an “Equity Contribution is madeCure Contribution”, (ii) no more than five Specified Equity Contributions shall be made in the aggregate during the term of this Agreement, (iii) and the amount of any Specified such Equity Contribution shall be no more than Cure Contribution, the amount required to cause the Borrower to be in pro forma compliance with Section 6.13 for any applicable period, (iv) all Specified “Cure Amount”). All Equity Cure Contributions shall be disregarded for all purposes of this Agreement (including determining any basketsbaskets conditioned upon meeting a leverage ratio contained herein and in the other Credit Documents); provided, financial ratio based calculations or pricing that, any such Equity Cure Contributions shall be included in Consolidated EBITDA for the purpose of determining compliance with respect to the covenants contained Financial Covenant for the applicable Cure Quarter and each fiscal quarter thereafter in this Agreement and a Test Period that includes the calculation of the Available Amount and Required Percentage and (v) there Cure Quarter. There shall be no pro forma reduction in Indebtedness with the proceeds of any Specified the Equity Cure Contribution for purposes of determining compliance with Section 6.13 the Financial Covenant or for determining any pricing, financial covenant based conditions or baskets with respect to the covenants contained in this Agreement, in each case, for the applicable Cure Quarter. In each period of four consecutive fiscal quarter quarters there shall be at least two fiscal quarters in which no cure set forth in this Section 8.3 is made. The cure rights set forth in this Section 8.3 may not be exercised with respect to more than four fiscal quarters during the term of when such Specified Equity Contribution is made (either directly through prepayment or indirectly as a result of the netting of unrestricted cash)this Agreement. Notwithstanding anything to the contrary hereincontained in Section 8.1, no Revolving Lender shall be required upon receipt of the Cure Amount by Holdings and the subsequent contribution in cash 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 (which equity contribution shall not be Disqualified Equity Interests in the Borrower) and corresponding prepayment of Loans by the Borrower in at least the amount necessary to make a Specified Equity Contribution cause the Borrower to be in compliance with the Financial Covenant as of the end of and for the Test Period ending on the date last day of such Cure Quarter, the Specified Equity Contribution is madeFinancial Covenant will be deemed satisfied and complied with as of the end of such Cure Quarter with the same effect as though there had been no failure to comply with the Financial Covenant for such Cure Quarter and any Default or Event of Default under the Financial Covenant for such Cure Quarter will be deemed not to have occurred for purposes of the Credit Documents.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (PLBY Group, Inc.), Credit and Guaranty Agreement (PLBY Group, Inc.)
Equity Cure. Notwithstanding anything to the contrary contained in Section 7.01, in In the event that the Borrower fails Credit Parties fail to comply with either Financial Covenant, from the end financial covenants set forth in Sections 6.2 or 6.3 as of the last day of any fiscal period until Fiscal Quarter, any cash equity contribution to the expiration Borrower (funded with proceeds of common equity, Qualified Preferred Equity or other equity having terms reasonably acceptable to Agent made or issued by Holdings) during or after the 10th last day of such Fiscal Quarter and on or prior to the day that is ten (10) Business Day following Days after the date day on which financial statements referred to in Section 5.01(a) or Section 5.01(b), as applicable, are required to be delivered for that Fiscal Quarter will, at the irrevocable election of the Borrower (which, in respect the case of contributions made during the applicable Fiscal Quarter, shall be made prior to the end of such fiscal Fiscal Quarter), be included in the calculation of EBITDA solely for the purposes of determining compliance with such covenants at the end of such Fiscal Quarter and any subsequent period for which that includes such Financial Covenant is being measuredFiscal Quarter (any such equity contribution so included in the calculation of EBITDA, 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 (ia) in each consecutive four Fiscal Quarter period of four consecutive fiscal quarters, there shall will be no more than at least two fiscal quarters Fiscal Quarters in which a no Specified Equity Contribution is mademade (or, (ii) no more than five with respect to Specified Equity Contributions shall be made in the aggregate during the term of this Agreementthereafter, deemed made), (iiib) the amount of any Specified Equity Contribution shall will be no more greater than the amount required to cause the Borrower Credit Parties to be in pro forma compliance with Section 6.13 for any applicable periodsuch covenants, (ivc) all Specified Equity Contributions will be disregarded for purposes of the calculation of EBITDA for all other purposes, including calculating basket levels, pricing and other items governed by reference to EBITDA, (d) there shall be no more than four Specified Equity Contributions made in the aggregate after the Closing Date, (e) one hundred percent (100%) of the proceeds received by the Borrower from all Specified Equity Contributions shall be disregarded promptly used by the Borrower to prepay the Term Loan pro rata to all Term Lenders, (f) any Loans prepaid with the proceeds of Specified Equity Contributions shall be deemed outstanding for purposes of determining any baskets, financial ratio based calculations or pricing compliance with Sections 6.2 and 6.3 for the current Fiscal Quarter and the next three (3) Fiscal Quarters thereafter and (g) the aggregate amount of all Specified Equity Contributions shall not exceed $4,000,000. If with respect to any Fiscal Quarter the covenants contained in Borrower has notified Agent that a Specified Equity Contribution will be made as permitted pursuant to this Agreement and Section 6.4 to cure a breach under Section 6.2 or Section 6.3 as at the calculation end of such Fiscal Quarter, neither Agent nor any Lender shall have any right to declare all or any portion of any one or more of the Available Amount and Required Percentage and (v) there shall be no pro forma reduction in Indebtedness with the proceeds Commitments of any Lender to make Loans or of the L/C Issuer to Issue Letters of Credit to be suspended or terminated, declare all or any portion of the unpaid principal amount of any outstanding Loans, interest accrued and unpaid thereon, and all amounts owing or payable hereunder or under any other Loan Document to be due and payable and/or exercise any other rights and remedies available under the Loan Documents or applicable law (including, without limitation, any right to foreclose on or take possession of Collateral) solely on the basis of an Event of Default having occurred and being continuing under Section 7.1 due to failure by the Credit Parties to comply with any financial covenant set forth in Article VI unless and until the time for making such Specified Equity Contribution for determining compliance with such Fiscal Quarter has passed and the breach of Section 6.13 for 6.2 or Section 6.3 as at the fiscal quarter end of such Fiscal Quarter has not been cured as provided 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 madethis Section.
Appears in 2 contracts
Sources: Credit Agreement (Papa Murphy's Holdings, Inc.), Credit Agreement (Papa Murphy's Holdings, Inc.)
Equity Cure. Notwithstanding anything to the contrary contained in Section 7.01, in (a) In the event that the Borrower fails Credit Parties fail to comply with either the Financial Covenant, from Covenant as of the end last day of any fiscal period until Fiscal Quarter, any cash equity contribution to the expiration Borrower (funded with proceeds of common equity issued by Holdings or Qualified Stock (or other equity issued by Holdings having terms reasonably acceptable to the 10th Business Day following Agent) made after the date on which financial statements referred to in Section 5.01(a) or Section 5.01(b), as applicable, are required to be delivered for such Fiscal Quarter and on or prior to the day that is ten (10) Business Days after the day on which financial statements are required to be delivered for such Fiscal Quarter (the “Anticipated Cure Deadline”) will, at the irrevocable election of the Borrower as of the date such proceeds are received by the Borrower and used to prepay Loans in respect accordance with Section 1.8(d)(ii), be included in the calculation of Consolidated EBITDA solely for the purposes of determining compliance with the Financial Covenant at the end of such fiscal Fiscal Quarter and any subsequent period for which that includes such Financial Covenant is being measuredFiscal Quarter (any such equity contribution so included in the calculation of Consolidated EBITDA, if a “Specified Equity Contribution”).
(b) If, after giving effect to the Borrower receives a Specified Equity Contribution, the Borrower may apply Credit Parties shall then be in compliance with the amount Financial Covenant, the Credit Parties shall be deemed to have satisfied the Financial Covenant as of the net cash proceeds thereof relevant date of determination with the same effect as though there had been no failure to increase EBITDA comply therewith at such date, and the applicable breach or default of such covenants that had occurred shall be deemed cured for this purposes of this Agreement.
(c) Upon receipt by the Agent of written notice from the Borrower on or prior to the Anticipated Cure Deadline of its intent to effectuate a Specified Equity Contribution in respect of such Fiscal Quarter until the day that is fifteen (15) Business Days after the day on which financial statements are required to be delivered for such Fiscal Quarter, notwithstanding any other provision of this Agreement or any other Loan Document, neither the Agent nor any Lender shall have any right to accelerate any Loans held by them or to exercise any other rights or remedies available under the Loan Documents or applicable law against the Collateral (including, without limitation, any right to foreclose on or take possession of Collateral) solely on the basis of an allegation of an Event of Default having occurred and being continuing under Section 7.1 due to failure by the Credit Parties to comply with respect the Financial Covenant, unless such failure is not cured pursuant to such fiscal quarterthe Specified Equity Contribution on or prior to the Anticipated Cure Deadline; provided it being understood and agreed that (i) in each period of four consecutive fiscal quarters, there shall be no more than two fiscal quarters in which Borrowings of Revolving Loans permitted or Letters of Credit issued or received hereunder until the Specified Equity Contribution has actually been received by the Borrower.
(d) Notwithstanding anything herein to the contrary, (i) a Specified Equity Contribution is mademay not be made in any two consecutive Fiscal Quarters, (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 will be no more greater than the amount required to cause the Borrower Credit Parties to be in pro forma compliance with Section 6.13 for any applicable periodthe Financial Covenant, (iviii) all Specified Equity Contributions shall will be disregarded counted solely 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 Consolidated EBITDA as it relates to the Available Amount Financial Covenant and Required Percentage shall not be included for all other purposes, including calculating basket levels, pricing and other items governed by reference to Consolidated EBITDA, (viv) there shall be no pro forma reduction more than four Specified Equity Contributions made in Indebtedness the aggregate after the Closing Date and (v) any Loans prepaid with the proceeds of any Specified Equity Contribution Contributions shall be deemed outstanding solely for purposes of determining compliance with Section 6.13 the Financial Covenant for such current Fiscal Quarter most recently ended (for the fiscal quarter in respect avoidance of when doubt, such Specified Equity Contribution is made (either directly through prepayment or indirectly as a result of the netting of unrestricted cashamount prepaid shall not be deemed outstanding for any subsequent Fiscal Quarter). 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.
Appears in 2 contracts
Sources: Credit Agreement (Lulu's Fashion Lounge Holdings, Inc.), Credit Agreement (Lulu's Fashion Lounge Holdings, Inc.)
Equity Cure. Notwithstanding anything to the contrary contained in Section 7.01this Article 12, in the event that the CGI Borrower fails to comply with either Financial Covenantthe requirement of the financial covenant set forth in Section 11.11, any holder of Capital Stock or Stock Equivalents of CGI Borrower or any direct or indirect parent of CGI Borrower shall have the right to cure such failure (the “Cure Right”) by causing cash equity proceeds derived from an issuance of Capital Stock or Stock Equivalents (other than Disqualified Stock, unless reasonably satisfactory to the Administrative Agent) by CGI Borrower or any direct or indirect parent of CGI Borrower, or cash proceeds derived from any issuance of Holdings Subordinate Debt by CGI Borrower to Holdings or any issuance of Shareholder Subordinate Debt by Holdings to Shareholder, in each case, to be contributed, directly or indirectly, to CGI Borrower in the form of common equity capital or additional Holdings Subordinate Debt, as the case may be (such cash amount being referred to as the “Cure Amount”), in each case, received at any time from the end first day of any the last fiscal period quarter of the Test Period in respect of which such financial covenant is being measured until the last to occur of (x) fifteen (15) days after the event that triggered the requirement to comply with the financial covenant in Section 11.11 and (y) the expiration of the 10th Business Day fifteenth (15th) day following the date financial statements referred to in Section 5.01(a10.1(a) or Section 5.01(b), as applicable, (b) are required to be delivered in respect of such fiscal period for which such Financial Covenant financial covenant is being measured, if the Borrower receives a Specified Equity Contributionmeasured (such date, the “Cure Expiration Date”), and upon such election by CGI Borrower may apply to exercise such Cure Right, such financial covenant shall be recalculated giving effect to the amount 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 net cash proceeds thereof to increase EBITDA financial covenant set forth in Section 11.11 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) if, after giving effect to the foregoing recalculations, CGI Borrower shall then be in compliance with the requirements of the financial covenant set forth in Section 11.11, CGI Borrower shall be deemed to have satisfied the requirements of the financial covenant set forth in Section 11.11 as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such fiscal quarterdate, and the applicable breach or default of such financial covenant that had occurred shall be deemed cured for the purposes of this Agreement; provided that (i) in each period of four consecutive fiscal quarters, quarters there shall be no more than at least two fiscal quarters in which a Specified Equity Contribution no Cure Right is madeexercised, (ii) no more than five Specified Equity Contributions there shall be made in the aggregate a maximum of five Cure Rights exercised during the term of this Agreement, (iii) the amount of any Specified Equity Contribution each Cure Amount shall be no more greater than the amount required to cause the CGI Borrower to be in pro forma compliance with the financial covenant set forth in Section 6.13 for any applicable period, 11.11; (iv) all Specified Equity Contributions Cure Amounts shall be disregarded for the purposes of determining any baskets, financial ratio based calculations or pricing determination under the Credit Documents other than for determining compliance with respect to the covenants contained in this Agreement and the calculation of the Available Amount and Required Percentage Section 11.11; and (v) except to the extent such Indebtedness is actually repaid, there shall be no pro forma reduction in Indebtedness with the proceeds of any Specified Equity Contribution Cure Amount for determining compliance with the financial maintenance covenant in Section 6.13 for 11.11 in respect of the Test Period ending with the fiscal quarter for which the Cure Right is exercised; and
(c) neither the Administrative Agent nor any Lender or Secured Party shall exercise any remedy under the Credit Documents or applicable law on the basis of an Event of Default caused by the failure to comply with Section 11.11 until after the Cure Expiration Date and CGI Borrower has not exercised the Cure Right (except to the extent that the Borrower Representative has confirmed in respect of when such Specified Equity Contribution is made (either directly through prepayment or indirectly as a result of writing that it does not intend to exercise the netting of unrestricted cashCure Right). Notwithstanding anything CGI Borrower may provide written notice 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 exercise the Cure Right (the “Notice of Intent to Cure”) in advance of receipt of the Cure Amount (it being understood that to the extent such notice is provided in advance of delivery of a Specified Equity Contribution Compliance Certificate for the applicable fiscal period, the amount of such net equity proceeds that is designated as the Cure Amount may be lower than specified in the Notice of Intent to Cure to the extent the amount necessary to cure such Event of Default is less than the full amount originally designated). Upon receipt by the Administrative Agent of the Notice of Intent to Cure, CGI Borrower shall be deemed to satisfied the requirement of the financial covenant in Section 11.11 as set forth in clause (b) above; provided that if the Cure Expiration Date has occurred without the Cure Amount having been received and ending on designated, any such Default or Event of Default shall be deemed reinstated. Notwithstanding the date foregoing, the Specified Equity Contribution is madeLenders and the Letter of Credit Issuer shall not be obligated to fund any Loans or honor any Letter of Credit Request until receipt by the Administrative Agent of the Cure Amount.
Appears in 2 contracts
Sources: Credit Agreement (Canada Goose Holdings Inc.), Credit Agreement (Canada Goose Holdings Inc.)
Equity Cure. (a) Notwithstanding anything to the contrary contained in Section 7.01, in the event that the Borrower fails to comply would not otherwise be in compliance with either Financial Covenantthe financial maintenance covenant set forth in Section 6.10, from then not later than 10 Business Days after the end of any fiscal period until the expiration of the 10th Business Day following the date day on which financial statements referred to in Section 5.01(a) or Section 5.01(b), as applicable, are required to be delivered under Section 5.04(a) or Section 5.04(b), and no earlier than the day that is the last day of the relevant fiscal quarter (the “Anticipated Cure Deadline”), Holdings (or another Parent Company) shall have the right to issue common Equity Interests (or any Qualified Capital Stock) for cash, or otherwise receive cash contributions in respect of its common Equity Interests (or any Qualified Capital Stock), and to contribute any such cash to the Borrower as cash common equity (or in the case of cash received by another Parent Company in respect of its Equity Interests, such Parent Company shall have the right to contribute such cash to Holdings as cash common equity and Holdings shall have the right to contribute such cash to the Borrower as cash common equity) (collectively, the “Cure Right”), and upon receipt by the Borrower of such cash (the “Specified Equity Contribution”) pursuant to the exercise by Holdings (and/or any other Parent Company) and the Borrower of such Cure Right, Consolidated EBITDA as used in the financial maintenance covenant set forth in Section 6.10 shall be increased (solely for the purposes of such financial covenant) giving effect to the Specified Equity Contribution.
(b) If, after giving effect to the recalculations set forth in paragraph (a) of this Section 7.02, the Borrower shall then be in compliance with the financial maintenance covenant set forth in Section 6.10, the Borrower shall be deemed to have satisfied the requirements of such covenant 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 such covenant that had occurred shall be deemed cured for purposes of this Agreement.
(c) Upon receipt by the Administrative Agent of written notice, on or prior to the Anticipated Cure Deadline, that the Borrower intends to exercise the Cure Right in respect of a fiscal quarter, the Lenders shall not be permitted to accelerate Loans held by them or to exercise remedies against the Collateral on the basis of a failure to comply with the requirements of the financial maintenance covenant set forth in Section 6.10, unless such failure is not cured pursuant to the exercise of the Cure Right on or prior to the Anticipated Cure Deadline. Notwithstanding anything to the contrary herein, no Lender or Issuing Bank shall be required to make any Revolving Loan or issue or amend any Letter of Credit from the date on which financial statements are required to be delivered with respect to any fiscal quarter or year (or, if earlier, the date on which such financial statements are actually delivered) for which the Borrower has failed to comply with the financial maintenance covenant set forth in Section 6.10 for the Test Period ending on the last day of such fiscal quarter or year to the earlier of (i) any cure or waiver of any Default or Event of Default arising from such failure to comply with such financial covenant and (ii) such time as (x) the Administrative Agent has received written notice, on or prior to the Anticipated Cure Deadline, of the Borrower’s intention to exercise the Cure Right in respect of such fiscal period for which such Financial Covenant is being measured, if quarter and (y) the Specified Equity Contribution has been actually received by the Borrower receives a Specified Equity Contributionon or prior to the Anticipated Cure Deadline.
(d) Notwithstanding anything herein to the contrary, 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 four fiscal quarter period of four consecutive fiscal quarters, there shall be no more than at least two fiscal quarters in which a Specified Equity Contribution the Cure Right is madenot exercised, (ii) no more than five Specified Equity Contributions shall may be made in the aggregate during the term of pursuant to this AgreementSection 7.02, (iii) the amount of any Specified Equity Contribution shall be no more greater than the amount required to cause the Borrower to be in pro forma compliance with the financial maintenance covenant set forth in Section 6.13 for any applicable period6.10, (iv) all Specified Equity Contributions shall be disregarded for all purposes of determining under this Agreement (including any baskets, financial ratio based calculations conditions or pricing any baskets with respect to the covenants contained set forth in this Agreement and Article VI) other than determining compliance with the calculation of the Available Amount and Required Percentage financial maintenance covenant set forth in Section 6.10 and (v) there shall be no pro forma or other reduction in of the amount of Indebtedness with by the proceeds amount of any Specified Equity Contribution for purposes of determining compliance with Section 6.13 6.10 for the fiscal quarter in respect of when which the Cure Right was exercised (other than, with respect to any future period, to the extent of any portion of such Specified Equity Contribution that is made (either directly through prepayment or indirectly as a result of the netting of unrestricted cashactually applied to repay Indebtedness). 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.
Appears in 2 contracts
Sources: Credit Agreement (AssetMark Financial Holdings, Inc.), Credit Agreement (AssetMark Financial Holdings, Inc.)
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 the event the Loan Parties would otherwise default in each period any payment of four consecutive fiscal quartersprincipal, there interest, fees or other amount payable under this Agreement or any other Loan Document (each, a “Payment Default Amount”) when the same shall be due and payable, any cash equity contribution to Borrower (funded with a capital contribution to Parent or proceeds of Capital Stock issued by Parent having terms acceptable to the Agent in the Agent’s Discretion and in any case, not constituting Disqualified Capital Stock) on or prior to the due date for such payment will, at the irrevocable election of the Parent, be permitted solely for the purposes of making such payment (any such equity contribution, a “Payment Default Equity Contribution”), provided, that (A) notice of Parent’s irrevocable election to make a Payment Default Equity Contribution shall be delivered to Agent no more later than two fiscal quarters in the day on which a Specified such Payment Default Equity Contribution is made, (B) the amount of any Payment Default Equity Contribution will be no greater than the applicable Payment Default Amount, and (C) the gross proceeds of each Payment Default Equity Contribution shall be paid to the Agent to be applied to the applicable Payment Default Amount.
(ii) no In the event the Loan Parties fail to comply with the financial covenants set forth in Section 6.18(b), (c) or (d) as of the last day of any Fiscal Quarter, as applicable, any cash equity contribution to Borrower (funded with a capital contribution to Parent or proceeds of Capital Stock issued by Parent having terms acceptable to the Agent in the Agent’s Discretion and in any case, not constituting Disqualified Capital Stock) after the last day of such Fiscal Quarter, and on or prior to the day that is ten (10) Business Days after the day on which financial statements are required to be delivered for that Fiscal Quarter, will, at the irrevocable election of the Parent, be included in the calculation of EBITDA solely for the purposes of determining compliance with such covenants at the end of Fiscal Quarter, and for not more than five three (3) subsequent periods that includes such Fiscal Quarter (any such equity contribution so included in the calculation of EBITDA, a “Covenant Default Equity Contribution”; each Payment Default Equity Contribution and Covenant Default Equity Contribution is referred to herein as a “Specified Equity Contribution”); provided, that (A) notice of Parent’s irrevocable election to make a Covenant Default Equity Contribution shall be delivered to Agent no later than the day on which financial statements are required to be delivered for the applicable Fiscal Quarter, (B) the amount of any Covenant Default Equity Contribution will be no greater than the amount required to cause the Loan Parties to be in compliance with such covenants, (C) all Covenant Default Equity Contributions will be disregarded for purposes of the calculation of EBITDA for all other purposes, including calculating basket levels, pricing and other items governed by reference to EBITDA, (E) the gross proceeds of all Covenant Default Equity Contributions shall be paid to the Agent to be applied as a mandatory prepayment (including the Make-Whole Amount or Prepayment Premium applicable thereto) of the Term Loan and applied under Section 2.05 hereof when funded and (F) the amount of the Term Loan prepaid with the proceeds of Covenant Default Equity Contributions shall be deemed outstanding for purposes of determining compliance with such covenants for the current Fiscal Quarter and the next three Fiscal Quarters thereafter.
(iii) Notwithstanding anything to the contrary herein, Specified Equity Contributions shall not be made in the aggregate (A) more than twice during the term of this Agreement, (iiiB) the amount of any Specified Equity Contribution shall be no in two consecutive Fiscal Quarters, (C) more than the once during any four consecutive Fiscal Quarter period or (D) in any single Fiscal Quarter in an 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 madegreater than $2,000,000.
Appears in 2 contracts
Sources: Credit Agreement (LIVE VENTURES Inc), Credit Agreement (LIVE VENTURES Inc)
Equity Cure. Notwithstanding anything to the contrary contained in Section 7.018.01, in but subject to Section 8.03(b), solely for the event that purpose of determining whether an Event of Default has occurred pursuant to Section 6.08(b) (the Borrower fails to comply with either Financial “Total Leverage Covenant, from ”) as of the end of and for any Test Period ending on the last day of any fiscal period until quarter with respect to which the expiration Total Leverage Covenant is tested (such fiscal quarter, a “Cure Quarter”), the then existing direct or indirect equity holders of Holdings shall have the 10th right to make an equity investment, directly or indirectly (which equity shall not be Disqualified Capital Stock), in Holdings in cash, which Holdings shall contribute, directly or indirectly, to the Borrower in cash (which equity contribution shall not be Disqualified Capital Stock in the Borrower) on or after the first day of such Cure Quarter and on or prior to the fifteenth (15th) Business Day following after the date on which financial statements referred are required to in be delivered pursuant to Section 5.01(a) or Section 5.01(b(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 Cure Quarter or the fiscal quarteryear ending on the last day of such Cure Quarter, as applicable (the “Cure Expiration Date”), and such cash will, if so designated by Holdings, be included in the calculation of Consolidated EBITDA for purposes of determining compliance with the Total Leverage Covenant as of the end of and for the Test Period ending on the last day of such Cure Quarter and any Test Periods ending on the last day of any of 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 Otherwise Applied. All Equity Cure Contributions shall be disregarded for all purposes of this Agreement other than inclusion in each period the calculation of four consecutive Consolidated EBITDA for the purpose of determining compliance with the Total Leverage Covenant as of the end of and for the Test Period ending on the last day of such Cure Quarter and any Test Periods ending on the last day of any of the subsequent three fiscal quarters, there including being disregarded for purposes of the determination of the Cumulative Amount and all components thereof and any baskets with respect to the covenants contained in Article VI (other than Section 6.08). There shall be no more than two pro forma reduction in Consolidated Total Funded Indebtedness as a result of any prepayments of Indebtedness with the proceeds of any Equity Cure Contribution for determining compliance with the Total Leverage Covenant under Section 6.08 as of and for the Test Period ending on the last day of the Cure Quarter; provided that such Equity Cure Contribution shall reduce Consolidated Total Funded Indebtedness in future fiscal quarters (whether by cash netting or otherwise). Notwithstanding anything to the contrary contained in which a Specified Equity Contribution is madeSection 8.01, (iiA) no more than five Specified Equity Contributions upon receipt of the Cure Amount by Holdings (and the subsequent contribution in cash to the Borrower (which equity contribution shall not be made Disqualified Capital Stock in the aggregate during the term of this Agreement, (iiiBorrower)) the in an amount of any Specified Equity Contribution shall be no more than the amount required necessary 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 Total Leverage Covenant as of the Available Amount end of 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 Test Period ending on the date last day of such Cure Quarter, the Specified Equity Contribution is made.Total Leverage Covenant under Section 6.08(b) shall be deemed satisfied and complied with as of the end of and for such Test Period with the same effect as though there had been no failure to comply with the Total Leverage Covenant under Section 6.08(b), and any Default or Event of Default related to any failure to comply with the Total Leverage Covenant shall be deemed not to have occurred for
Appears in 2 contracts
Sources: Amendment Agreement (Jamf Holding Corp.), Amendment Agreement (Juno Topco, Inc.)
Equity Cure. Notwithstanding anything to the contrary contained in Section 7.01, in (a) In the event that the Borrower fails Credit Parties fail to comply with either the Financial Covenant, from Covenant as of the end last day of any fiscal period until Fiscal Quarter, any cash equity contribution to the expiration Borrowers (funded with proceeds of common equity issued by Parents or Qualified Stock (or other equity issued by Parents having terms reasonably acceptable to the 10th Business Day following Agent)) made after the date on which financial statements referred to in Section 5.01(a) or Section 5.01(b), as applicable, are required to be delivered for such Fiscal Quarter and on or prior to the day that is ten Business Days after the day on which financial statements are required to be delivered for such Fiscal Quarter (the “Anticipated Cure Deadline”) will, at the irrevocable election of the Borrowers and to the extent the proceeds of which have not been utilized under Sections 5.4(w) or 5.11(l) as of the date such proceeds are applied for purposes of this Section 6.2, be included in respect the calculation of Combined EBITDA solely for the purposes of determining compliance with the Financial Covenant at the end of such fiscal Fiscal Quarter and any subsequent period for which that includes such Financial Covenant is being measuredFiscal Quarter (any such equity contribution so included in the calculation of Combined EBITDA, if a “Specified Equity Contribution”).
(b) If, after giving effect to the Borrower receives a Specified Equity Contribution, the Borrower may apply Credit Parties shall then be in compliance with the amount Financial Covenant, the Credit Parties shall be deemed to have satisfied the Financial Covenant as of the net cash proceeds thereof relevant date of determination with the same effect as though there had been no failure to increase EBITDA with respect to comply therewith at such fiscal quarter; provided date, and the applicable breach or default of such covenants that (i) in each period of four consecutive fiscal quarters, there had occurred shall be no more than two fiscal quarters in which deemed cured for purposes of this Agreement.
(c) Upon receipt by the Agent of written notice from the Borrowers on or prior to the Anticipated Cure Deadline of its intent to effectuate a Specified Equity Contribution in respect of such Fiscal Quarter until the day that is madeten Business Days after the day on which financial statements are required to be delivered for such Fiscal Quarter, (ii) no more than five Specified Equity Contributions shall be made in the aggregate during the term notwithstanding any other provision of this AgreementAgreement or any other Loan Document, neither the Agent nor any Lender shall have any right to accelerate any Loans held by them or to exercise any other rights or remedies available under the Loan Documents or applicable law against the Collateral (iiiincluding, without limitation, any right to foreclose on or take possession of Collateral) solely on the amount basis of any an allegation of an Event of Default having occurred and being continuing under Section 7.1 due to failure by the Credit Parties to comply with the Financial Covenant, unless such failure is not cured pursuant to the Specified Equity Contribution on or prior to the Anticipated Cure Deadline; it being understood and agreed that the LC Issuer shall be under 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 obligation to issue any Letter of Credit, at any time during and the period beginning on the date the Borrower notifies any Administrative Agent that it intends Lenders shall be under no obligation to make a Specified Equity Contribution and ending on the date any Loan, until the Specified Equity Contribution is madehas actually been received by the Borrowers.
Appears in 2 contracts
Sources: Revolving Loan Facility Credit Agreement (Charah Solutions, Inc.), Credit Agreement (Charah Solutions, Inc.)
Equity Cure. Notwithstanding anything to the contrary contained in Section 7.01, in In the event that the Borrower fails Credit Parties fail to comply with either Financial Covenant, from the end financial covenants set forth in this Article VI as of the last day of any fiscal period until Fiscal Quarter, any cash equity contribution to Borrower (funded with proceeds of common equity issued by Holdings or other equity issued by Holdings not constituting Disqualified Stock) on or prior to the expiration of day that is ten (10) days after the 10th Business Day following the date day on which financial statements referred to in Section 5.01(a) or Section 5.01(b), as applicable, are required to be delivered for that Fiscal Quarter will, at the irrevocable election of the Borrower, be included in respect the calculation of EBITDA solely for the purposes of determining compliance with such covenants at the end of such fiscal Fiscal Quarter and any subsequent period for which that includes such Financial Covenant is being measuredFiscal Quarter (any such equity contribution so included in the calculation of EBITDA, 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 (ia) notice of Borrower’s intent to make a Specified Equity Contribution shall be delivered no later than the day on which financial statements are required to be delivered for the applicable Fiscal Quarter, (b) in each consecutive four (4) Fiscal Quarter period of four consecutive fiscal quarters, there shall will be no more than at least two fiscal quarters (2) Fiscal Quarters in which a no 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, (iiic) the amount of any Specified Equity Contribution shall will be no more greater than the amount required to cause the Borrower Credit Parties to be in pro forma compliance with Section 6.13 for any applicable periodthe comparable financial covenants set forth in the First Lien Credit Agreement, (ivd) all Specified Equity Contributions shall will 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 EBITDA for all other purposes, including calculating basket levels, pricing and Required Percentage and other items governed by reference to EBITDA, (ve) there shall be no pro forma reduction more than five (5) Specified Equity Contributions made in Indebtedness the aggregate after the Closing Date, and (f) any Loans or any First Lien Debt prepaid with the proceeds of any Specified Equity Contribution Contributions shall be deemed outstanding for purposes of determining compliance with Section 6.13 such covenants for the fiscal quarter in respect Fiscal Quarter being cured and the immediately succeeding Fiscal Quarter. From the effective date of when delivery of such Specified Equity Contribution cure notice to the Administrative Agent until the date that is made ten (either directly through prepayment 10) days after the day on which the applicable financial statements are required to be delivered, neither the Administrative Agent nor any Lender shall impose a default interest rate, accelerate the Obligations or indirectly exercise any other right or remedy against the Credit Parties or any of their Subsidiaries or any of their respective properties solely on the basis of an Event of Default having occurred under Section 7.1(c) as a result of the netting Credit Parties’ failure to comply with the financial covenant referenced in such cure notice; provided until timely receipt 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 madeContribution, for all other purposes under the Credit Agreement and the other Loan Documents (including, for the avoidance of doubt, Section 2.2 hereof), an Event of Default shall be deemed to have occurred and be continuing. Upon receipt by Borrower of the Specified Equity Contribution, any applicable Default or Event of Default shall automatically be deemed to have been cured.
Appears in 1 contract
Equity Cure. Notwithstanding anything to the contrary contained in Section 7.01, in In the event that the Borrower fails to comply with either Financial Covenant, from any of the end financial covenants set forth in this Section 6.10 as of the last day of any fiscal period until quarter, any cash equity contribution to the expiration Borrower (funded with proceeds of, or contributions made in respect of, equity (other than Disqualified Capital Stock) issued by Parent or a capital contribution received by Parent or other equity issued by Parent having terms reasonably acceptable to the Administrative Agent) (the “Cure Amount”) during the last month of the 10th applicable fiscal quarter or after the last day of such fiscal quarter and on or prior to the day that is ten (10) Business Day following Days after the date day on which financial statements referred are required to be delivered for that fiscal quarter (the “Cure Expiration Date”) will, at the irrevocable election of the Borrower, be included in the calculation of Consolidated EBITDAR solely for the purposes of determining compliance with the financial covenant set forth in Section 5.01(a6.10(a) or Section 5.01(b6.10(b), as applicable, at the end of such fiscal quarter and any subsequent period that includes such fiscal quarter (any such equity contribution so included in the calculation of Consolidated EBITDAR, a “Specified Equity Contribution”); provided that (a) notice of the Borrower’s intent to make a Specified Equity Contribution shall be delivered no later than ten (10) Business Days after the day on which financial statements 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 applicable fiscal quarter; provided that , (ib) in each consecutive four (4) fiscal quarter period of four consecutive fiscal quarters, there shall will be no more than at least two (2) fiscal quarters in which a no 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, (iiic) the amount of any Specified Equity Contribution shall will be no more greater than the amount required to cause the Borrower to be in pro forma compliance with the financial covenant set forth in Section 6.13 for any applicable period6.10(a) or Section 6.10(b), as applicable, (ivd) all Specified Equity Contributions shall will 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 Consolidated EBITDAR for all other purposes, including calculating basket levels, pricing and Required Percentage and other items governed by reference to Consolidated EBITDAR, (ve) there shall be no pro forma reduction more than three (3) Specified Equity Contributions made in Indebtedness the aggregate after the Effective Date and (f) any Loans prepaid with the proceeds of any Specified Equity Contribution Contributions shall be deemed outstanding for purposes of determining compliance with the financial covenant set forth in Section 6.13 6.10(a) or Section 6.10(b), as applicable, for the current fiscal quarter in respect and any subsequent period that includes such fiscal quarter. So long as the Borrower is entitled to exercise an equity cure pursuant to the foregoing terms and provisions of when such Specified Equity Contribution is made (either directly through prepayment or indirectly as a result this Section 6.10(c), from the effective date of the netting of unrestricted cash). Notwithstanding anything Borrower’s delivery 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 Administrative Agent of Credit, at any time during the period beginning on the date irrevocable written notice that the Borrower notifies any Administrative Agent that it intends to make shall cause a Specified Equity Contribution to be made pursuant to the terms hereof until the earlier to occur of the Cure Expiration Date and ending the date on which the Administrative Agent is notified that the required contribution will not be made, neither the Administrative Agent nor any Lender shall impose default interest, accelerate the Obligations, terminate the Commitments or exercise any enforcement remedy against any Loan Party or any of its Subsidiaries or any of their respective properties solely on the date basis of such Event of Default with respect to the financial covenant in Section 6.10(a) or Section 6.10(b), as applicable, in respect of which such notice was delivered; provided that until timely receipt of the applicable Specified Equity Contribution is madeContribution, an Event of Default shall be deemed to exist for all other purposes of this Agreement, including, without limitation, Article IV and Article VI hereof and any term or provision of any Loan Document which prohibits any action to be taken by a Loan Party or any of its Restricted Subsidiaries during the existence of an Event of Default.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (Excelerate Energy, Inc.)
Equity Cure. Notwithstanding anything to the contrary contained in Section 7.01, in In the event that the Borrower fails Loan Parties fail to comply with either Financial Covenant, from the end financial covenants set forth in Section 7.11(a) or (b) as of the last day of any fiscal period until quarter, any cash equity contribution to the expiration Borrowers (funded with proceeds of common equity issued by Holdings or a parent entity thereof or other equity issued by Holdings or a parent entity thereof) on or prior to the 10th Business Day following day that is ten (10) days after the date day on which financial statements referred to in Section 5.01(a) or Section 5.01(b), as applicable, are required to be delivered for that fiscal quarter will, at the irrevocable election of the Borrowers, be included in respect the calculation of Consolidated EBITDA solely for the purposes of determining compliance with such covenant at the end of such fiscal quarter and any subsequent period for which that includes such Financial Covenant is being measuredfiscal quarter (any such equity contribution so included in the calculation of Consolidated EBITDA, 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 (ia) notice of the Borrowers’ intent to make a Specified Equity Contribution shall be delivered no later than the day on which financial statements are required to be delivered for the applicable fiscal quarter, (b) in each consecutive four (4) Fiscal Quarter period of four consecutive fiscal quarters, there shall will be no more than at least two (2) fiscal quarters in which a no 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, (iiic) the amount of any Specified Equity Contribution shall will be no more greater than the amount required to cause the Borrower Loan Parties to be in pro forma compliance with Section 6.13 for any applicable periodsuch covenants, (ivd) all Specified Equity Contributions shall will 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 Consolidated EBITDA for all other purposes, including calculating basket levels, pricing and Required Percentage and other items governed by reference to Consolidated EBITDA, (ve) there shall be no pro forma reduction more than four (4) Specified Equity Contributions made in Indebtedness the aggregate after the Restatement Date, (f) any Loans prepaid with the proceeds of any Specified Equity Contributions shall be deemed outstanding for purposes of determining compliance with such covenants for the Fiscal Quarter being cured and the next three (3) fiscal quarters, and (g) the proceeds received by the Borrowers from each Specified Equity Contribution for determining compliance with will be promptly used by the Borrowers to prepay the Term Loans. From the effective date of delivery of such cure notice to the Administrative Agent until the date that is ten (10) days after the day on which the applicable financial statements are required to be delivered, neither the Administrative Agent nor any Lender shall impose a default interest rate, accelerate the Obligations, terminate the Revolving Credit Commitment or exercise any other right or remedy against the Loan Parties or any of their Subsidiaries or any of their respective properties solely on the basis of an Event of Default having occurred under Section 6.13 for the fiscal quarter in respect of when such Specified Equity Contribution is made (either directly through prepayment or indirectly 8.01(b) as a result of the netting Loan Parties’ failure to comply with the financial covenants referenced in such cure notice; provided that for purposes of unrestricted cash). Notwithstanding anything determining the satisfaction of the conditions precedent to a borrowing under the contrary hereinRevolving Credit Commitments pursuant to Section 4.02, no Revolving Lender a Default shall be required deemed to fund any Revolving Loans or other advance, and no Issuing Bank shall be required to issue any Letter exist. Upon receipt by Borrowers 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 madeContribution, any applicable Default or Event of Default shall be deemed to have been cured.
Appears in 1 contract
Equity Cure. (a) Notwithstanding anything to the contrary contained in Section 7.018.01, in but subject to Section 8.03(b), solely for the event that purpose of determining whether an Event of Default has occurred (i) pursuant to Section 6.08(a)(i) or 6.08(a)(ii) (the Borrower fails to comply with either Financial Covenant, from “Recurring Revenue Covenants”) as of the end of and for any Test Period ending on the last day of any fiscal period until quarter with respect to which either Recurring Revenue Covenant is tested (such fiscal quarter, a “Recurring Revenue Cure Quarter”), the expiration Borrower shall have the right to issue equity, directly or indirectly (which equity shall be common equity, perpetual preferred equity (provided that such perpetual preferred equity shall not have any redemption event or require any cash payments prior to the date that is 91 days after the Latest Maturity Date and shall not be Disqualified Capital Stock), or shall otherwise be in a form reasonably acceptable to the Administrative Agent) in exchange for cash, on or after the first day of such Recurring Revenue Cure Quarter and on or prior to the 10th tenth (10th) Business Day following after the date on which financial statements referred are required to in be delivered pursuant to Section 5.01(a) or Section 5.01(b(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 Recurring Revenue Cure Quarter or the fiscal quarter; provided that year ending on the last day of such Recurring Revenue Cure Quarter, as applicable (ithe “Recurring Revenue Cure Expiration Date”) in each period of four consecutive fiscal quartersand such cash will, there shall if so designated by the Borrower, 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 included in the aggregate during the term calculation of this AgreementLQA University Segment Revenue and LTM Short Course Revenue, (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 periodas applicable, (iv) all Specified Equity Contributions shall be disregarded for purposes of determining compliance with the Recurring Revenue Covenants as of the end of and for the Test Period ending on the last day of such Recurring Revenue Cure Quarter and any baskets, financial ratio based calculations or pricing Test Periods ending on the last day of any of the subsequent three fiscal quarters and (ii) pursuant to Section 6.08(b) (the “Total Leverage Covenant”) as of the end of and for any Test Period ending on the last day of any fiscal quarter with respect to which the covenants contained in this Agreement and the calculation of the Available Amount and Required Percentage and Total Leverage Covenant is tested (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 such fiscal quarter in respect of when such Specified Equity Contribution is made (either directly through prepayment or indirectly as quarter, 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.“Total
Appears in 1 contract
Sources: Credit Agreement (2U, Inc.)
Equity Cure. Notwithstanding anything to the contrary contained in Section 7.017.1(a) or Section 7.1(b), in the event that the Borrower fails to comply with either Financial Covenant, from the end ARR Leverage Covenant or the EBITDA Based Leverage Covenant as of the last day of any fiscal period until Test Period, any cash common equity contribution to the expiration Borrower after the first day of the 10th applicable fiscal quarter and on or prior to the day that is ten (10) Business Day following Days after the date day on which financial statements referred to in Section 5.01(a) or Section 5.01(b), as applicable, are required to be delivered for such fiscal quarter (the “Equity Cure Expiration Date”) and not otherwise applied will, at the irrevocable election of the Borrower, be included in respect the calculation of Recurring Revenue or Consolidated Adjusted EBITDA, as applicable, solely for the purposes of determining compliance with the ARR Leverage Covenant or the EBITDA Based Leverage Covenant, as applicable, as of such date and as of any subsequent date that includes such fiscal period quarter in the applicable Test Period for which purposes of determining compliance with ARR Leverage Covenant or the EBITDA Based Leverage Covenant, as applicable (any such Financial Covenant is being measuredequity contribution so included in the calculation of Recurring Revenue or Consolidated Adjusted EBITDA, 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) if the Borrower has failed to comply with ARR Leverage Covenant or the EBITDA Based Leverage Covenant, as applicable, as of the last day of any Test Period, no Lender will be required to fund any Loans during the ten (10) Business Day period commencing on the day on which financial statements are required to be delivered for such fiscal quarter and ending on the Equity Cure Expiration Date, (ii) in each consecutive four fiscal quarter period of four consecutive fiscal quarters, there shall will be no more than at least two fiscal quarters in which a no Specified Equity Contribution is mademade (and no Specified Equity Contribution may be made in consecutive Fiscal Quarters), (iiiii) there will be no more than five Specified Equity Contributions shall be made in the aggregate during after the term of this AgreementClosing Date, (iiiiv) the amount of any Specified Equity Contribution shall will be no more greater than the amount required to cause the Borrower to be in pro forma compliance with Section 6.13 for any applicable periodARR Leverage Covenant or the EBITDA Based Leverage Covenant, as applicable, (ivv) all Specified Equity Contributions shall will 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 Recurring Revenue or Consolidated Adjusted EBITDA for all purposes (v) there shall be no pro forma reduction in Indebtedness other than compliance with the ARR Leverage Covenant or the EBITDA Based Leverage Covenant, as applicable (including for subsequent fiscal quarters that include such fiscal quarter in the applicable period of four consecutive trailing fiscal quarters)), including calculating basket levels and other items governed by reference to Recurring Revenue or Consolidated Adjusted EBITDA, (vi) the proceeds to the Borrower of any Specified Equity Contribution for determining compliance with Section 6.13 will not be given pro forma effect in any cash netting under any ratio, or be deemed applied to reduce any debt under any ratio, for the fiscal quarter in with respect of when to which such Specified Equity Contribution is made (either directly through prepayment or indirectly as a result but to the extent the Borrower and the Subsidiaries have applied such cash proceeds to repay Indebtedness (including pursuant to Section 2.12(e)), then such use thereof shall be recognized in any such subsequent fiscal quarter) and (vii) 100% of the netting proceeds 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 madeshall be applied to prepay the Term Loans in accordance with Section 2.12.
Appears in 1 contract
Equity Cure. Notwithstanding anything For purposes of determining compliance with the Financial Covenant and the other provisions of the Credit Documentation affected by such compliance, any proceeds from equity issuances or cash equity contribution (which equity will be in the form of common equity or other equity reasonably acceptable to the contrary contained in Section 7.01Administrative Agent) made to Holdings by the Sponsor and/or the other Investors, in and contributed by Holdings, directly or indirectly, to the event that common equity of the Borrower fails to comply with either Financial CovenantBorrower, from after the end of any the applicable fiscal period until quarter and on or prior to the expiration of day that is fifteen (15) business days after the 10th Business Day following the date day on which financial statements referred to in Section 5.01(a) or Section 5.01(b), as applicable, are required to be delivered for such fiscal quarter (the “Cure Period”) will, at the request of the Borrower, be included in respect the calculation of Consolidated EBITDA solely for the purposes of determining compliance with the Financial Covenant at the end of such fiscal quarter and each applicable subsequent period for which that includes such Financial Covenant is being measuredquarter (any such equity contribution so included in the calculation of Consolidated EBITDA, if the Borrower receives a “Specified Equity Contribution”); provided, the Borrower may apply the amount of the net cash proceeds thereof to increase EBITDA with respect to such fiscal quarter; provided that (ia) in each period of four consecutive fiscal quarters, quarter period there shall will be no more than two fiscal quarters in which a Specified Equity Contribution is made, (iib) no more than five Specified Equity Contributions shall may be made in the aggregate during the term of this Agreementthe Credit Facilities, (iiic) the amount of any Specified Equity Contribution shall in any period will be no more greater than the amount required to cause the Borrower to be in pro forma compliance with Section 6.13 the Financial Covenant for any applicable such period, (ivd) all each Specified Equity Contributions Contribution shall be disregarded increase Consolidated EBITDA solely for the purposes of computing quarter-end compliance with the Financial Covenant and shall not be included for the purpose of determining the availability or amount of any basketscovenant baskets or carve-outs, financial ratio based calculations pricing or pricing with respect to the covenants contained for any other purpose, and (e) such Specified Equity Contribution shall not result in this Agreement and any reduction of indebtedness in the calculation of the Available Amount and Required Percentage and (v) there shall be no pro forma reduction Financial Covenant 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 which the Specified Equity Contribution is made. The Credit Documentation will provide that no default or event of default in respect of any Financial Covenant shall exist until the expiration of the Cure Period and that neither the Administrative Agent nor any Lender shall exercise the right to accelerate the Revolving Loans or terminate the Revolving Credit Commitments, and none of the Administrative Agent, any Lender or any other secured party shall exercise any right to foreclose on or take possession of any Collateral or exercise any other remedy prior to the expiration of the Cure Period, in each case, solely on the basis of an event of default having occurred and being continuing with respect to the Financial Covenant for the applicable fiscal quarter; provided that no extension of credit or issuance or extension of a Letter of Credit shall be required to be made under the Revolving Credit Facility during such period. Permitted Acquisition So long as no event of default has occurred and is continuing (subject to the Limited Conditionality Provisions), the Borrower or any of its restricted subsidiaries may acquire a majority of the equity interests of or all or substantially all of the assets of an entity (or all or substantially all of the assets constituting a business unit, division, product line or line of business of an entity) (including any investment which serves to increase the Borrower’s or such restricted subsidiary’s respective interest therein) (a “Permitted Acquisition”); provided, that (i) the acquired entity and its subsidiaries will become restricted subsidiaries and, subject to the limitations set forth under “Guarantees” and “Security” above, the acquired entity and its subsidiaries will become Guarantors and pledge their assets as Collateral to the Administrative Agent within sixty (60) days (or such longer timeframe as may be reasonably agreed in writing by the Administrative Agent) after such acquisition (with carve-outs for dispositions of non-core assets acquired in connection with such Permitted Acquisition and sales required to obtain HSR approval), (ii) acquisitions of persons that do not become Guarantors and of assets that do not become Collateral following the Closing Date shall not exceed the greater of (x) $19.8 million and (y) 30% of Consolidated EBITDA, plus the Available Amount Basket (with any such use reducing capacity thereunder) (excluding acquisitions funded with equity proceeds of stock (other than disqualified stock) or capital contributions paid in respect of the equity interests of Holdings (or direct or indirect parent company thereof) and contributed as stock (other than disqualified stock) to the Borrower) not otherwise applied, (iii) the line of business of the acquired entity shall be similar, ancillary, corollary, synergistic, complementary or related to, or a reasonable extension, development or expansion of, the businesses conducted by the Borrower and its restricted subsidiaries (as determined by the Borrower in its reasonable discretion) (iv) the acquisition shall be non-hostile, and (v) with respect to acquisitions with a purchase price exceeding the greater of $9.9 million and 15% of Consolidated EBITDA, the Borrower shall deliver to the Administrative Agent, a quality of earnings report prepared by an independent registered public accounting firm of recognized national standing or other accounting firm reasonably acceptable to the Administrative Agent and the Lead Lender Representative (such approval not to be unreasonably withheld, conditioned, denied or delayed) (including any “big-four” accounting firm), and (vi) a customary due diligence package of readily available items (including other quality of earnings reports and other third party reports) that are reasonably requested by the Administrative Agent and the Lead Lender Representative. Events of Default Limited to the following (to be applicable to the Borrower, its restricted subsidiaries and Holdings in limited cases) (each, an “Event of Default”): (i) nonpayment of principal when due; (ii) nonpayment of (A) interest subject to a grace period of five (5) business days, or (B) fees or other amounts subject to a grace period of ten (10) business days; (iii) material inaccuracy of representations and warranties, subject to a thirty (30) day cure period in the case of breaches capable of being cured; (iv) violation of covenants, subject, in the case of affirmative covenants (other than with respect to notices of events of default, the existence of Holdings and the Borrower, and the use of proceeds), to a grace period of thirty (30) days after notice from the Administrative Agent; (v) cross default to other debt in excess of the greater of $16.5 million and 25% of Consolidated EBITDA; (vi) bankruptcy events with respect to the Credit Parties and other material restricted subsidiaries (with a customary grace period of sixty (60) days for involuntary events); (vii) certain ERISA events which have a Material Adverse Effect; (viii) one or more final and non-appealable judgments (or judgments not stayed and bonded pending appeal or covered by insurance or indemnity not denied after notice) in excess of the greater of $16.5 million and 25% of Consolidated EBITDA that has not been satisfied; (ix) actual or asserted invalidity of any guarantee or security document, any subordination provision the Intercreditor Agreement or any other intercreditor agreement or any material security interest; and (x) occurrence of a change of control. The events of default shall be subject to baskets (in each case, subject to “grower” baskets), materiality thresholds, carve outs and exceptions, in each case consistent with the Documentation Principles. Further, notwithstanding any other provisions herein or in the Credit Documentation to the contrary, no dollar denominated basket shall be treated as having been breached if the relevant dollar-denominated basket would not have occurred but for any fluctuation in exchange rates nor shall any such fluctuations create additional capacity under any such basket.
Appears in 1 contract
Sources: Term Loan and Revolving Credit Facility Agreement (AgroFresh Solutions, Inc.)
Equity Cure. Notwithstanding anything to the contrary contained in Section 7.01, in In the event that the Borrower fails Loan Parties fail to comply with either Financial Covenant, from the end financial covenant set forth in Section 6.03 as of the last day of any fiscal period until the expiration of the 10th Borrower, any cash equity contribution to the Borrower (funded with proceeds of common equity issued by the Borrower) after the last day of such fiscal period and on or prior to the day that is ten (10) Business Day following Days after the date on which financial statements referred to in Section 5.01(a) or Section 5.01(b), as applicable, are required to be delivered for such fiscal period (the “Cure Expiration Date”) will, at the irrevocable election of the Borrower, be included in respect the calculation of Consolidated EBITDA solely for the purposes of determining compliance with such covenant at the end of such fiscal quarter and any subsequent period for which that includes such Financial Covenant is being measuredfiscal quarter (any such equity contribution so included in the calculation of Consolidated EBITDA, 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 (ia) notice of the Borrower’s intent to make a Specified Equity Contribution shall be delivered by the Borrower to the Administrative Agent no later than the day on which financial statements are required to be delivered for the applicable fiscal quarter (the “Notice of Intent to Cure”), (b) in each consecutive four (4) fiscal quarter period of four consecutive fiscal quarters, there shall will be no more than at least two (2) fiscal quarters in which a no 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, (iiic) the amount of any Specified Equity 14618770v5 Contribution shall will be no more greater than the amount required to cause the Borrower Loan Parties to be in pro forma compliance with Section 6.13 for any applicable periodsuch covenants, (ivd) all Specified Equity Contributions shall will 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 Consolidated EBITDA for all other purposes, including calculating basket levels, pricing and other items governed by reference to Consolidated EBITDA, and shall not be treated as reducing outstanding Debt for such fiscal period (if applied to repay Debt) or increasing cash or Cash Equivalents for purposes of cash netting in the Available Amount and Required Percentage and Consolidated Debt to Consolidated EBITDA Ratio (vprovided that such limitations shall not apply in subsequent fiscal quarters), (e) there shall be no pro forma reduction more than five (5) Specified Equity Contributions made in Indebtedness with the proceeds aggregate after the Closing Date. Upon delivery by the Borrower to the Administrative Agent of a Notice of Intent to Cure, (x) the Administrative Agent and the Lenders may not exercise any rights or remedies under Section 8.02 or under any other Loan Document on the basis of any Specified Equity Contribution for determining compliance with actual or purported Event of Default under Section 6.13 for 6.03 until and unless the fiscal quarter in respect of when such Specified Equity Contribution is made (either directly through prepayment or indirectly as a result Cure Expiration Date has occurred without the receipt by the Borrower 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 (y) the date Borrower shall not be permitted to request or receive any Credit Extension until receipt by the Borrower of the Specified Equity Contribution is madeContribution.
Appears in 1 contract
Sources: Credit Agreement (Trex Co Inc)
Equity Cure. Notwithstanding anything to the contrary contained in Section 7.01, in In the event that the Borrower fails Credit Parties fail to comply with either Financial Covenant, from the end financial covenant set forth in Section 7.1 as of the last day of any fiscal period until Fiscal Quarter, any cash equity contribution to Borrower (funded with the expiration proceeds of common equity issued by the 10th Borrower or other equity issued by the Borrower having terms reasonably acceptable to Agent and in any case, not constituting Disqualified Stock) after the last day of such Fiscal Quarter and on or prior to the day that is fifteen (15) Business Day following Days after the date day on which financial statements referred to in Section 5.01(a) or Section 5.01(b), as applicable, are required to be delivered for that Fiscal Quarter will, at the irrevocable election of the Borrower, be included in respect the calculation of Consolidated EBITDA solely for the purposes of determining compliance with such covenant in Section 7.1 at the end of such fiscal Fiscal Quarter (each, a “Cure Quarter”) and any subsequent period for which that includes such Financial Covenant is being measuredCure Quarter (any such equity contribution so included in the calculation of Consolidated EBITDA, 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 (ia) notice of Borrower’s intent to accept a Specified Equity Contribution shall be delivered by the Borrower no later than the day on which financial statements are required to be delivered for the applicable Fiscal Quarter, (b) in each consecutive four (4) Fiscal Quarter period of four consecutive fiscal quarters, there shall will be no more than at least two fiscal quarters (2) Fiscal Quarters in which a no 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, (iiic) the amount of any Specified Equity Contribution shall will be no more greater than the amount required to cause the Borrower Credit Parties to be in pro forma compliance with Section 6.13 for any applicable periodsuch financial covenant (the “Cure Amount”), (ivd) all Specified Equity Contributions shall will 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 Consolidated EBITDA for all other purposes, including calculating basket levels, pricing, determining compliance with incurrence based or pro forma calculations or conditions and any other items governed by reference to Consolidated EBITDA, (e) there shall be no more than five (5) Specified Equity Contributions made in the Available Amount and Required Percentage aggregate after the Restatement Date, and (vf) there shall be no pro forma or other reduction in Consolidated Total Net Indebtedness (through either netting of cash or prepayment of Indebtedness) in connection with the proceeds of any Specified Equity Contribution (or the application of the proceeds thereof) for determining compliance with Section 6.13 each financial covenant under Article VII for the fiscal quarter periods including the Cure Quarter unless actually utilized to pay down the Term Loans; provided that there shall be no de-leveraging credit for the period ending on the last day of the Cure Quarter in respect of when such Specified Equity Contribution which the equity cure is made (either directly through prepayment or indirectly as a result exercised. Upon the Agent’s receipt 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 notice from the Borrower notifies any Administrative Agent that it intends of its intent to make a Specified Equity Contribution pursuant to this Section 7.4 no later than the day on which financial statements are required to be delivered for the applicable Fiscal Quarter, then, until the day that is fifteen (15) Business Days after such date, neither Agent nor any Lender shall exercise the right to accelerate the Loans or terminate the Commitments and neither Agent nor any Lender shall exercise any right to foreclose on or take possession of the Collateral solely on the basis of an Event of Default having occurred and being continuing under Sections 7.1 in respect of the period ending on the date last day of such Fiscal Quarter; provided that in no event shall the Lenders have any obligation to fund any Loan or issue and Letter of Credit until such Specified Equity Contribution is made.
Appears in 1 contract
Equity Cure. Notwithstanding anything to the contrary contained in Section 7.01, in In the event that the Borrower fails Loan Parties fail to comply with either Financial Covenant, from the end financial covenants set forth in this Article 7 as of the last day of any fiscal period until quarter of Borrower, any cash equity contribution which is contributed as common equity or another form reasonably acceptable to Agent into Borrower after the expiration first day of such fiscal quarter and on or prior to the 10th day that is fifteen (15) Business Day following Days after the date day on which financial statements referred to in Section 5.01(a) or Section 5.01(b), as applicable, are required to be delivered for that fiscal quarter will, at the irrevocable election of Borrower, be included in respect the calculation of EBITDA solely for the purposes of determining compliance with such covenants in this Article 7 at the end of such fiscal quarter (each, a “Cure Quarter”) and any subsequent period for which that includes such Financial Covenant is being measuredCure Quarter (any such equity contribution so included in the calculation of EBITDA, 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 (ia) Specified Equity Contribution may not be made 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, (iiib) the amount of any Specified Equity Contribution shall will be no more greater than the amount required to cause the Borrower Loan Parties to be in pro forma compliance with Section 6.13 for any applicable periodsuch financial covenants (the “Cure Amount”), (ivc) all Specified Equity Contributions shall will 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 EBITDA for all other purposes, including calculating basket levels, pricing, determining compliance with incurrence based or pro forma calculations or conditions and Required Percentage any other items governed by reference to EBITDA and (vd) there shall be no pro forma reduction more than three (3) Specified Equity Contributions made in Indebtedness with the aggregate after the Closing Date and no more than two (2) Specified Equity Contributions made in any four fiscal quarter period. For the avoidance of doubt, the proceeds of any a Specified Equity Contribution for determining compliance shall be applied in accordance 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 cash2.2(e)(iii). 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 Upon Agent’s receipt of Credit, at any time during the period beginning on the date the notice from Borrower notifies any Administrative Agent that it intends of its intent to make a Specified Equity Contribution pursuant to this Section 7.4, until the day that is fifteen (15) Business Days after such date, neither Agent nor any Lender shall (i) exercise the right to accelerate the Term Loan or terminate the Commitments, (ii) exercise any right to foreclose on or take possession of the Collateral or (iii) exercise any other right or remedy against any Loan Party solely on the basis of an Event of Default having occurred and being continuing under Sections 7.1, 7.2 or 7.3 in respect of the period ending on the date the Specified Equity Contribution is madelast day of such fiscal quarter.
Appears in 1 contract
Equity Cure. Notwithstanding anything to the contrary contained in Section 7.01, in (a) In the event that the Borrower fails Loan Party Obligors fail to comply with either Financial Covenant, from the end financial covenant set forth in Section 9.1 as of the last day 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)month, as applicable, any cash equity contribution to a Borrower funded with a capital contribution to Holdings or proceeds of equity interests issued by Holdings after the last day of such month, and on or prior to the day that is ten (10) Business Days after the day on which financial statements are required to be delivered in respect for that month, will, at the irrevocable election of such fiscal period for which such Financial Covenant is being measured, if the Borrower receives Representative, be included in the calculation of EBITDA for that month solely for the purposes of determining compliance with such covenant (any such equity contribution so included in the calculation of EBITDA, a Specified “Covenant Default Equity Contribution”), and if in compliance with such covenant upon the making of the Covenant Default equity Contribution, no Event of Default will be deemed to exist as a result of non-compliance with such covenant; provided, that (i) notice of Borrower may apply Representative’s irrevocable election to make a Covenant Default Equity Contribution shall be delivered to Agent no later than the day on which financial statements are required to be delivered for the applicable month, (ii) the amount of any Covenant Default Equity Contribution will be no greater than the amount required to cause the Loan Party Obligors to be in compliance with such covenant, (iii) all Covenant Default Equity Contributions will be disregarded for purposes of the calculation of EBITDA for all other purposes, (iv) the gross proceeds of all Covenant Default Equity Contributions shall be paid to the Agent to be applied as a mandatory prepayment applied under Section 2.6(a) hereof when funded and (v) the amount of the net cash Term Loan prepaid with the proceeds thereof to increase EBITDA with respect to such fiscal quarter; provided that of Covenant Default Equity Contributions (iif any) in each period of four consecutive fiscal quarters, there shall be no deemed outstanding for purposes of determining compliance with such covenant for the current month and the next eleven (11) months thereafter. Notwithstanding the foregoing, Covenant Default Equity Contributions may not be made more than two fiscal quarters in which a Specified Equity Contribution is made, (ii2) no more than five Specified Equity Contributions shall be made in the aggregate times during the term of this Agreement, (iii) the amount of any Specified Equity Contribution shall be no in consecutive fiscal quarters or more than one (1) time during any twelve consecutive months.
(b) In the amount required to cause event that the Borrower to be in pro forma compliance with Section 6.13 for any applicable periodExcess Availability is less than the Minimum Excess Availability Amount (a “Minimum Excess Availability Deficiency”), (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 solely as a result of the netting Agent’s imposition of unrestricted cash). Notwithstanding anything additional Reserves or a reduction in Borrowing Base imposed by the Agent as a result of any appraisal conducted by the Agent under this Agreement, any cash equity contribution to a Borrower funded with a capital contribution to Holdings or proceeds of equity interests issued by Holdings on or prior to the contrary hereinday that is ten (10) Business Days after the day on which the Agent provides notice to the Borrower Representative of the Minimum Excess Availability Deficiency, 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 Creditwill, at the irrevocable election of the Borrower Representative, increase Excess Availability (any time during the period beginning on such equity contribution increasing Excess Availability, a “Minimum Excess Availability Equity Contribution”) as of the date on which the Minimum Excess Availability Deficiency first arose; provided, that (i) notice of Borrower notifies any Administrative Agent that it intends Representative’s irrevocable election to make a Specified Minimum Excess Availability Equity Contribution shall be delivered to Agent no later than the day that is two (2) Business Days after the day on which the Agent provides notice to the Borrower Representative of the Minimum Excess Availability Deficiency and ending on (ii) the date gross proceeds of all Minimum Excess Availability Equity Contributions shall be paid to the Specified Equity Contribution is madeAgent to be applied as a mandatory prepayment applied under Section 2.6(a) hereof to the Revolving Loans when funded.
Appears in 1 contract
Equity Cure. (a) Notwithstanding anything to the contrary contained in this Section 7.0110 or in any Loan Document, in the event that the Borrower fails fails, or anticipates to fail, to comply with either Financial the Leverage Ratio Covenant and/or the Current Ratio Covenant, from the end of any fiscal period then (A) until the expiration of the 10th tenth Business Day subsequent to the date the Compliance Certificate for calculating the Leverage Ratio Covenant and/or the Current Ratio Covenant is required to be delivered pursuant to Section 7.1(d) (such tenth Business Day, the CREDIT AGREEMENT – Page 126 “Cure Deadline”), the Borrower shall have the right to cure such failure or anticipated failure (the “Cure Right”) by receiving cash proceeds (which cash proceeds shall be received no earlier than the first day following the date financial statements applicable fiscal quarter for which there is a failure to comply with the Leverage Ratio Covenant and/or the Current Ratio Covenant, as applicable) from an issuance of Equity Interests (other than Disqualified Equity Interests) for cash as a cash capital contribution (or from any other contribution of cash to capital or issuance or sale of any other Equity Interests on terms reasonably acceptable to the Administrative Agent), and upon receipt by the Borrower of such cash proceeds (such cash amount being referred to as the “Cure Amount”) pursuant to the exercise of such Cure Right, EBITDAX (in Section 5.01(athe case of the Leverage Ratio Covenant) or Section 5.01(b)and/or current assets (in the case of the Current Ratio Covenant) shall be increased, solely for the purpose of determining the existence of an Event of Default resulting from a breach of the Leverage Ratio Covenant and/or the Current Ratio Covenant, as applicable, are required with respect to be delivered in respect of such any Test Period that includes the fiscal period quarter for which such Financial Covenant is being measuredthe Cure Right was exercised and not for any other purpose under this Agreement, if by an amount equal to the Borrower receives a Specified Equity ContributionNecessary Cure Amount (as defined below);
(b) If, after giving effect to the foregoing recalculations, the Borrower may apply shall then be in compliance with the amount requirements of the net cash proceeds thereof Leverage Ratio Covenant and/or the Current Ratio Covenant, as applicable, the Borrower shall be deemed to increase EBITDA have satisfied the requirements of the Leverage Ratio Covenant and/or the Current Ratio Covenant, as applicable, as of the relevant date of determination with respect the same effect as though there had been no failure to comply therewith at such fiscal quarterdate, and the applicable breach or default of the Leverage Ratio Covenant and/or the Current Ratio Covenant, as applicable, that had occurred (or would have occurred) shall be deemed cured for the purposes of this Agreement; provided that (iA) in each period of four (4) consecutive fiscal quarters, quarters there shall be no more than at least two (2) fiscal quarters in which a Specified Equity Contribution no Cure Right is madeexercised, (iiB) no Cure Rights shall not be exercised more than five Specified Equity Contributions shall be made in the aggregate times during the term of this Agreement, (iiiC) the amount of any Specified Equity Contribution each Cure Amount shall be no more greater than the amount required to cause the Borrower to be in pro forma compliance with Section 6.13 the Leverage Ratio Covenant and/or the Current Ratio Covenant, as applicable (such amount, the “Necessary Cure Amount”); provided that if the Cure Right is exercised prior to the date financial statements are required to be delivered for any applicable periodsuch fiscal quarter, then the Cure Amount shall be equal to the amount reasonably determined by the Borrower in good faith that is required for purposes of complying with the Leverage Ratio Covenant and/or the Current Ratio Covenant, as applicable, for such fiscal quarter (such amount, the “Expected Cure Amount”), (ivD) in respect of the fiscal quarter in which such Cure Right was exercised and for each Test Period that includes such fiscal quarter, all Specified Equity Contributions Cure Amounts shall be disregarded for the purposes of determining any baskets, financial ratio based calculations or pricing with respect to determination under 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 Loan Documents other than for determining compliance with Section 6.13 for the fiscal quarter in respect of when such Specified Equity Contribution is made Leverage Ratio Covenant and/or the Current Ratio Covenant, as applicable, (either directly through prepayment E) no Lender or indirectly as a result of the netting of unrestricted cash). Notwithstanding anything to the contrary herein, no Revolving Lender L/C Issuer shall be required to fund make any Revolving Credit Extension hereunder during the ten (10) Business Day period referred to above, unless the Borrower shall have received the Cure Amount and (F) to the extent Borrower exercises the Cure Right to cure breaches of both the Leverage Ratio Covenant and the Current Ratio Covenant in the same fiscal quarter, such utilization of the Cure Right shall count as a single exercise for purposes of the caps set forth above and the Cure Amount must be at least the minimum amount necessary to cure all such breaches.
(c) Upon receipt by the Administrative Agent of written notice, on or prior to the Cure Deadline, that the Borrower intends to exercise the Cure Right in respect of a fiscal quarter, (i) the Lenders shall not be permitted to accelerate Loans held by them or other advanceto exercise remedies against the Collateral on the basis of a failure to comply with the requirements of the Leverage Ratio Covenant and/or the Current Ratio Covenant, as applicable, and no Issuing Bank Default or Event of Default shall be required deemed to issue any Letter have occurred hereunder and (ii) no default interest may be imposed, in each case, unless such failure is not cured pursuant to the exercise of Creditthe Cure Right on or prior to the Cure Deadline.
(d) Notwithstanding anything herein to the contrary, at any time during to the period beginning on extent that the date Expected Cure Amount is less than the Necessary Cure Amount, then not later than the applicable Cure Deadline, the Borrower notifies any Administrative Agent that it intends must receive cash proceeds from issuance of Equity Interests (other than Disqualified Equity Interests) or a cash capital contribution, which cash proceeds received by the Borrower shall be equal to make a Specified Equity Contribution the shortfall between such Expected Cure Amount and ending on the date the Specified Equity Contribution is madesuch Necessary Cure Amount.
Appears in 1 contract
Sources: Credit Agreement (Peak Resources LP)
Equity Cure. Notwithstanding anything to the contrary contained in Section 7.01, in In the event that the Borrower fails to comply with either the Financial Covenant, from the end Covenants as of any fiscal period until Test Date, any cash equity contribution (or qualified preferred equity or other equity on terms reasonably satisfactory to the expiration Administrative Agent) in the Borrower after the beginning of the 10th applicable Fiscal Quarter ending on such Test Date and on or prior to the day that is ten (10) Business Day following Days after the date day on which financial statements referred to in Section 5.01(a) or Section 5.01(b), as applicable, are required to be delivered for the Fiscal Quarter ended on such Test Date will, at the irrevocable election of the Borrower, be included in respect the calculation of Consolidated Adjusted EBITDA solely for the purposes of determining compliance with the Financial Covenants as of such fiscal period Test Date and as of any subsequent Test Date that includes such Fiscal Quarter for which purposes of determining compliance with the Financial Covenants (any such Financial Covenant is being measuredequity contribution so included in the calculation of Consolidated Adjusted EBITDA, 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 may be made in the aggregate any four consecutive Fiscal Quarter period and only three Specified Equity Contributions may be made during the term of this Agreement, (iiiii) the amount of any Specified Equity Contribution shall will be no more greater than the amount required to cause the Borrower to be in pro forma compliance with Section 6.13 for any applicable periodthe Financial Covenants, (iviii) all Specified Equity Contributions shall will be disregarded for purposes all other purposes, including the calculation of determining any basketsConsolidated Adjusted EBITDA for all purposes, financial ratio based calculations or pricing other than the compliance with the Financial Covenants for such applicable Test Period and subsequent Test Periods that include the Fiscal Quarter ending on the applicable Test Date, and including calculating basket levels and other items governed by reference to Consolidated Adjusted EBITDA, (iv) with respect to the covenants contained in this Agreement and the calculation Fiscal Quarter for which it is contributed to cure a breach of the Available Amount Financial Covenants, any Specified Equity Contribution shall not reduce the outstanding Indebtedness of the Borrower for such Fiscal Quarter (it being understood and Required Percentage agreed that such limitation shall not apply in subsequent Fiscal Quarters if actually applied to repay Term Loans) and (v) there the Borrower shall not, unless otherwise agreed by the Required Lenders under the Revolving Credit Facility, be no pro forma reduction in Indebtedness with permitted to incur Revolving Loans or request the issuance of Letters of Credit during the ten Business Day period referred to above unless and until the Borrower has received 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 madeContribution.
Appears in 1 contract
Equity Cure. Notwithstanding anything to the contrary contained in Section 7.01, in In the event that the Borrower fails Credit Parties fail to comply with either Financial Covenant, from any financial covenant set forth in this Section 5.9 as of the end last day of any fiscal period until quarter, any cash equity contribution to the expiration Parent (funded with proceeds of common equity issued by Parent or other equity issued by Parent and having terms reasonably acceptable to the 10th Business Day following Administrative Agent, in each case contributed by the date Parent to the Borrower) after the last day of such fiscal quarter and on or prior to the day that is ten (10) days after the day on which financial statements referred to in Section 5.01(a) or Section 5.01(b), as applicable, are required to be delivered for that fiscal quarter will, at the irrevocable election of the Borrower, be included in respect the calculation of Consolidated EBITDA solely for the purposes of determining compliance with such covenants at the end of such fiscal quarter and any subsequent period for which that includes such Financial Covenant is being measuredfiscal quarter (any such equity contribution so included in the calculation of Consolidated EBITDA, 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 (ia) notice of the Borrower’s intent to make a Specified Equity Contribution shall be irrevocable and delivered no later than the day on which financial statements are required to be delivered for the applicable fiscal quarter, (b) in each consecutive four fiscal quarter period of four consecutive fiscal quarters, there shall will be no more than at least two (2) fiscal quarters in which a no Specified Equity Contribution is mademade and those shall not be consecutive fiscal quarter periods, (ii) no more than five Specified Equity Contributions shall be made in the aggregate during the term of this Agreement, (iiic) the amount of any Specified Equity Contribution shall will be no more greater than the amount required to cause the Borrower Credit Parties to be in pro forma compliance with Section 6.13 for any applicable periodsuch covenants, (ivd) all Specified Equity Contributions will be disregarded for purposes of the calculation of Consolidated EBITDA for all other purposes, including calculating basket levels, pricing and other items governed by reference to Consolidated EBITDA, (e) there shall be no more than two (2) Specified Equity Contributions made in the aggregate after the Closing Date, (f) the proceeds received by the Borrower from all Specified Equity Contributions shall be disregarded promptly used by the Borrower to prepay Term Loans but in no event shall be double counted for purposes of financial covenant calculation, (g) the amount of any Loans prepaid with the proceeds of Specified Equity Contributions shall be deemed outstanding for purposes of determining any baskets, financial ratio based calculations or pricing compliance with respect to such covenants for the covenants contained in this Agreement current fiscal quarter and the calculation of the Available Amount and Required Percentage next three (3) fiscal quarter thereafter and (vh) there shall be no pro forma reduction in Indebtedness with the proceeds amount of any each Specified Equity Contribution for determining compliance with Section 6.13 for shall not exceed $5,000,000 and the fiscal quarter in respect aggregate amount of when such all 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 Contributions 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 madenot exceed $10,000,000.
Appears in 1 contract
Sources: Credit Agreement (Infospace Inc)
Equity Cure. Notwithstanding anything to the contrary contained in Section 7.01, in In the event that the Borrower fails Borrowers fail to comply with either Financial Covenant, from the end financial covenants set forth in Section 6.12 hereof as of the last day of any fiscal period until quarter, the expiration proceeds of any cash equity contribution (in the 10th Business Day form of common equity or other “qualified” equity having terms reasonably acceptable to the Administrative Agent) to any Borrower after the last day of such fiscal quarter (beginning with the first full fiscal quarter following the date Fifth Amendment Effective Date) during the period beginning on the last day of each applicable fiscal quarter as of which any such failure to comply occurs and on or prior to the day that is ten (10) Business Days after the day on which financial statements referred to in Section 5.01(a) or Section 5.01(b), as applicable, are required to be delivered for that fiscal quarter will, at the irrevocable election of the Borrowers, be included in respect the calculation of EBITDA solely for the purposes of determining compliance with covenants under Section 6.12 hereof at the end of such fiscal quarter and any subsequent period for which that includes such Financial Covenant is being measuredfiscal quarter (the proceeds of any such equity contribution so included in the calculation of EBITDA, 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 (ia) in each period of four consecutive (4) fiscal quartersquarter period, there shall be no more than two non-consecutive fiscal quarters in respect of 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, (iiib) the amount of any Specified Equity Contribution shall be no more than not exceed the amount required to cause the Borrower Borrowers to be in pro forma compliance with the financial covenants set forth in Section 6.13 for any applicable period6.12 hereof as of such date, (ivc) 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 EBITDA for all other purposes, including calculating basket levels, pricing and Required Percentage and other items governed by reference to EBITDA, (vd) notwithstanding any prepayment required hereunder, there shall be no pro forma reduction in of Indebtedness with respect to the proceeds of any Specified Equity Contribution for the purposes of determining compliance with Section 6.13 such financial covenants for the fiscal quarter in respect of when which such Specified Equity Contribution is made made, (either directly through prepayment or indirectly as a result of e) the netting of unrestricted cash). Notwithstanding anything to proceeds received by 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 Borrowers from each Specified Equity Contribution shall be promptly used by the Borrowers to prepay the Revolving Loan and ending on the date the (f) there shall be no more than three (3) Specified Equity Contribution is madeContributions made in the aggregate after the Effective Date.
Appears in 1 contract
Sources: Credit Agreement (CRH Medical Corp)
Equity Cure. Notwithstanding anything to the contrary contained in Section 7.01, in In the event that the Borrower fails Loan Parties fail to comply with either Financial Covenant, from the end financial covenants set forth in clauses (a) and (c) of this Section 7.15 as of the last day of any fiscal period until quarter, any cash equity contribution to the expiration Borrower (funded with proceeds of the 10th Business Day following the date financial statements referred equity having terms reasonably acceptable to Agent and in Section 5.01(aany case, not constituting Disqualified Securities) or Section 5.01(b)any Indebtedness having terms (including subordination terms) acceptable to Agent in its sole discretion, as applicablein each case, are funded during such fiscal quarter or on or prior to the day that is ten (10) days after the day on which a compliance certificate is required to be delivered for that fiscal quarter will, at the irrevocable election of the Borrower, be included in respect the calculation of Consolidated Adjusted EBITDA, solely for the purposes of determining compliance with such covenants at the end of such fiscal quarter and any subsequent period for which that includes such Financial Covenant is being measuredfiscal quarter (any such equity contribution or acceptable subordinated Indebtedness so included in the calculation of Consolidated Adjusted EBITDA, 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 (ia) notice of Borrower's intent to receive a Specified Equity Contribution shall be delivered no later than the day on which a compliance certificate is required to be delivered for the applicable fiscal quarter, (b) in each consecutive four fiscal quarter period of four consecutive fiscal quarters, there shall will be no more than at least two (2) fiscal quarters in which a no 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, (iiic) the amount of any Specified Equity Contribution shall will be no more greater than the amount required to cause the Borrower Loan Parties to be in pro forma compliance with Section 6.13 for any applicable periodsuch covenants, (ivd) all Specified Equity Contributions shall will 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 Consolidated Adjusted EBITDA, as applicable, for all other purposes, including calculating basket levels, (ve) there shall be no pro forma reduction more than four (4) Specified Equity Contributions made in Indebtedness with the aggregate after the Closing Date, and (f) at the option of the Required Lenders, 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 will be applied to prepay the Loans (either directly through except to the extent applied to repay Indebtedness under any Working Capital Facility or Alternate Senior Credit Facility as required by the terms thereof) and such prepayment or indirectly as a result will be disregarded in determining the Financial Covenants for the applicable fiscal quarter and each of the netting of unrestricted cash). Notwithstanding anything subsequent three (3) fiscal quarters (but not any fiscal quarter thereafter) and such prepayment shall be at par and not subject 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 madePrepayment Price.
Appears in 1 contract
Sources: Credit Agreement (Telos Corp)
Equity Cure. Notwithstanding anything to If the contrary contained in Section 7.01, in the event that the Borrower fails Loan Parties fail to comply with either Financial Covenant, from any financial covenant set forth in Section 8.01(a) as of the end last day of any fiscal period until Fiscal Quarter, any cash equity contribution made to the expiration Borrower (funded with proceeds of (x) common equity issued by Holdings or (y) other Capital Stock (other than Disqualified Capital Stock) issued by Holdings having terms reasonably acceptable to the Administrative Agent (solely at the direction of the 10th Business Day following Required Lenders)) after the last day of such Fiscal Quarter and on or prior to the date that is twenty (20) days after the day on which the financial statements referred required to in be delivered for such Fiscal Quarter pursuant to Section 5.01(a6.01(a) or Section 5.01(b6.01(b), as applicable, are required delivered to the Administrative Agent (the “Cure Deadline Date”), at the irrevocable election of the Borrower, be delivered included in respect the calculation of Consolidated EBITDA solely for the purpose of determining compliance with such financial covenant at the end of such fiscal period for which Fiscal Quarter and any subsequent Test Period that includes such Financial Covenant is being measuredFiscal Quarter (any such equity contribution so included in the calculation of Consolidated EBITDA, 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) the Borrower shall deliver written notice to the Administrative Agent of the Borrower’s intent to make a Specified Equity Contribution (which notice shall state the amount of such contribution and the date it is to be made), (ii) in each period of any consecutive four consecutive fiscal quarters(4) Fiscal Quarters, there shall be the Borrower may elect to make a Specified Equity Contribution no more than two fiscal quarters in which a Specified Equity Contribution is made, (ii2) no more than five Specified Equity Contributions shall be made in the aggregate during the term of this Agreementtimes, (iii) the amount of any Specified Equity Contribution shall will be no more not greater than the amount required to cause the Borrower Loan Parties to be in pro forma compliance with Section 6.13 for any applicable periodsuch financial covenant, (iv) all Specified Equity Contributions shall will be disregarded in calculating Consolidated EBITDA for all purposes other than calculating financial ratios solely for the purpose of determining any basketsSection 8.01(a), 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 more than five (5) Specified Equity Contributions made after the Closing Date, and (vi) such proceeds of the Specified Equity Contribution shall be actually received by the Borrower no later than the Cure Deadline Date. If, after giving effect to the foregoing pro forma adjustment (but not, for the avoidance of doubt, giving pro forma adjustment to any repayment of Indebtedness in connection therewith), the Borrower is in compliance with the financial covenants set forth in Section 8.01, the Borrower shall be deemed to have satisfied the requirements of such Section as of the relevant date of determination with the same effect as though there had been no failure to comply on such date, and the applicable breach or default of such Section 8.01 that had occurred shall be deemed cured for purposes of this Agreement. For the avoidance of doubt, and without limitation of the foregoing, (i) no Specified Equity Contribution shall be taken into account in calculating the Consolidated First Lien Leverage Ratio or the Consolidated Total Leverage Ratio in connection with the making of a Restricted Payment, an Investment, an incurrence or a prepayment of Indebtedness or any other specified payment or specified transaction for a which any such ratio is determined on a Pro Forma Basis, (ii) and there shall be no pro forma reduction (either through repayment or cash netting) in Indebtedness with the proceeds of any Specified Equity Contribution for determining compliance with Section 6.13 the financial covenants for the fiscal quarter relevant Fiscal Quarter in respect of when which such Specified Equity Contribution is made (either directly through prepayment made. Prior to the Cure Deadline Date in respect of a Fiscal Quarter, the Lenders shall not be permitted to accelerate Term Loans held by them or indirectly as to exercise remedies against the Collateral on the basis of a result failure to comply with the requirements of the netting of unrestricted cashfinancial covenant set forth in Section 8.01(a). Notwithstanding anything , unless such failure is not cured pursuant to the contrary hereinexercise of the cure right in this Section 8.01(c) on or prior to the Cure Deadline Date. The proceeds of the Specified Equity Contribution, no Revolving Lender may, at the election of the Borrower, be used as cash on the balance sheet or to pay ABL Facility Obligations (or for any other purpose) and shall not 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 prepay 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 madeTerm Loans.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (American Vanguard Corp)
Equity Cure. Notwithstanding anything In the event that Borrowers fail to the contrary comply with any financial covenant contained in Section 7.0114.1, in or 14.2 (a “Financial Covenant Default”), Borrowers shall have the right to cure such Event of Default on the following terms and conditions (the “Equity Cure”):
(a) In the event that the Borrower fails Borrowers desire 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 cure a Financial Covenant is being measuredDefault, if the Borrower receives Borrowers shall deliver to Administrative Agent irrevocable written notice of its intent to cure (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“Cure Notice”) 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 commencing on the date that the Borrower notifies any Financial Statements and corresponding Compliance Certificate as of and for the period ending on the last day of the computation period as of which such Financial Covenant Default occurred (each a “Test Date”) are delivered to Administrative Agent that it intends to make a Specified Equity Contribution and Lenders and ending on the fifth (5th) Business Days after Administrative Agent’s and ▇▇▇▇▇▇▇’ receipt of such Financial Statements and Compliance Certificate. The Cure Notice shall set forth the calculation of the applicable Cure Amount (as hereinafter defined).
(b) In the event that Borrowers deliver a Cure Notice, a capital contribution shall be made to S&W Seed in an amount not less than the Cure Amount at any time during the period commencing on the date of Administrative Agent’s receipt of such Cure Notice and ending on the Specified Equity tenth (10th) Business Day following the date on which the relevant Financial Statements and Compliance Certificate were required to be delivered to Administrative Agent and the Lenders (such tenth (10th) Business Day, the “Required Contribution Date”). The proceeds of such capital contribution equal to the Cure Amount shall be immediately used by Borrowers to make a mandatory prepayment of the Loans and other Obligations in the amount of such proceeds (applied to the Loans and other Obligations in accordance with the mandatory prepayment provisions set forth in Section 2.3.5). The “Cure Amount” shall be the amount which if added to the amount of Adjusted EBITDA as of the applicable Test Date, would result in the Loan Parties being in pro forma compliance with the applicable financial covenant which is madethe subject of such Financial Covenant Default(s) as of such Test Date (provided, however, that if more than one such Financial Covenant Default exists as of a Test Date, the Cure Amount for purposes hereof shall equal the largest amount necessary to cure such applicable Financial Covenant Defaults).
Appears in 1 contract
Equity Cure. Notwithstanding anything to the contrary contained in Section 7.01Article VIII, in the event that an Event of Default arises under Section 7.11, an equity contribution (in the form of common equity or other equity having terms reasonably acceptable to the Administrative Agent), made to Holdings and contributed in cash as common equity to the Borrower fails to comply with either Financial Covenant, from after the end last day of any fiscal period until quarter and on or prior to the expiration of day that is ten (10) Business Days after the 10th Business Day following the date day on which financial statements referred to in Section 5.01(a) or Section 5.01(b), as applicable, are required to be delivered in respect of for such fiscal period for which such Financial Covenant is being measuredquarter will, if at the Borrower receives a Specified Equity Contribution, the Borrower may apply the amount written request of the net cash proceeds thereof to increase Borrower, be included in the calculation of Consolidated EBITDA with respect to (for such fiscal quarter) solely for the purposes of determining compliance with such financial covenants at the end of such Measurement Period and any subsequent period that includes such fiscal quarter (any such equity contribution, a “Specified Contribution”); provided that 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 and the use of proceeds therefrom will be no more greater than the amount required to cause the Borrower Loan Parties to be in compliance with the applicable financial covenants on a pro forma compliance with Section 6.13 for any applicable periodbasis, (ivii) all Specified Equity Contributions shall and the use of proceeds therefrom will be disregarded for all other purposes under this Agreement (including, to the extent applicable, calculating Consolidated EBITDA for purposes of determining basket levels, pricing and other items governed by reference to Consolidated EBITDA or that include Consolidated EBITDA in the determination thereof in any basketsrespect), 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 (viii) there shall be no pro forma reduction more than five (5) Specified Contributions made in Indebtedness with the aggregate after the Closing Date and no Specified Contributions may be made in consecutive fiscal quarters, (iv) 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 shall not reduce Indebtedness on a pro forma basis 116 (either directly through prepayment or indirectly as a result of netting Unrestricted Cash) in determining compliance with the netting financial covenants for the fiscal quarter in respect 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 which such Specified Equity Contribution and ending on the date the Specified Equity Contribution is made, and (v) the proceeds of all Specified Contributions will be applied to prepay the Loans in the manner set forth in Section 2.05(b)(iii); provided that, until timely receipt of the applicable Specified Contribution, an Event of Default shall be deemed to exist for all other purposes under this Agreement however, neither the Administrative Agent nor any other Lender shall exercise any right to accelerate the Loans, terminate the Commitments or exercise any right to foreclose or take possession of any Collateral or any other remedy under the Loan Documents, in each case on the basis of any actual or purported Event of Default with respect to the financial covenants set forth in Section 7.11. Upon timely receipt by the Borrowers in cash of the applicable Specified Contribution and payment of the mandatory prepayment pursuant to the terms of this Agreement, the applicable Events of Default shall be deemed waived.
Appears in 1 contract
Equity Cure. Notwithstanding anything to the contrary contained in Section 7.01, in In the event that the Borrower fails to comply with either Financial Covenant, from any of the end financial covenants set forth in this Section 6.10 as of the last day of any fiscal period until quarter, any cash equity contribution to the expiration Borrower (funded with proceeds of, or contributions made in respect of, equity (other than Disqualified Capital Stock) issued by Parent or a capital contribution received by Parent or other equity issued by Parent having terms reasonably acceptable to the Administrative Agent) (the “Cure Amount”) during the last month of the 10th applicable fiscal quarter or after the last day of such fiscal quarter but on or prior to the day that is ten (10) Business Day following Days after the date day on which financial statements referred are required to be delivered for that fiscal quarter (the “Cure Expiration Date”) will, at the irrevocable election of the Borrower, be included in the calculation of Consolidated EBITDAR solely for the purposes of determining compliance with the financial covenant set forth in Section 5.01(a6.10(a) or Section 5.01(b6.10(b), as applicable, at the end of such fiscal quarter and any subsequent period that includes such fiscal quarter (any such equity contribution so included in the calculation of Consolidated EBITDAR, a “Specified Equity Contribution”); provided that (a) notice of the Borrower’s intent to make a Specified Equity Contribution shall be delivered no later than ten (10) Business Days after the day on which financial statements 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 applicable fiscal quarter; provided that , (ib) in each consecutive four (4) fiscal quarter period of four consecutive fiscal quarters, there shall will be no more than at least two (2) fiscal quarters in which a no 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, (iiic) the amount of any Specified Equity Contribution shall will be no more greater than the amount required to cause the Borrower to be in pro forma compliance with the financial covenant set forth in Section 6.13 for any applicable period6.10(a) or Section 6.10(b), as applicable, (ivd) all Specified Equity Contributions shall will 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 Consolidated EBITDAR for all other purposes, including calculating basket levels, pricing and Required Percentage and other items governed by reference to Consolidated EBITDAR, (ve) there shall be no pro forma reduction more than three (3) Specified Equity Contributions made in Indebtedness the aggregate after the Effective Date and (f) any Loans prepaid with the proceeds of any Specified Equity Contribution Contributions shall be deemed outstanding for purposes of determining compliance with the financial covenant set forth in Section 6.13 6.10(a) or Section 6.10(b), as applicable, for the current fiscal quarter in respect and any subsequent period that includes such fiscal quarter. So long as the Borrower is entitled to exercise an equity cure pursuant to the foregoing terms and provisions of when such Specified Equity Contribution is made (either directly through prepayment or indirectly as a result this Section 6.10(c), from the effective date of the netting of unrestricted cash). Notwithstanding anything Borrower’s delivery 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 Administrative Agent of Credit, at any time during the period beginning on the date irrevocable written notice that the Borrower notifies any Administrative Agent that it intends to make shall cause a Specified Equity Contribution to be made pursuant to the terms hereof until the earlier to occur of the Cure Expiration Date and ending the date on which the Administrative Agent is notified that the required contribution will not be made, neither the Administrative Agent nor any Lender shall impose default interest, accelerate the Obligations, terminate the Commitments or exercise any enforcement remedy against any Loan Party or any of its Subsidiaries or any of their respective properties solely on the date basis of such Event of Default with respect to the financial covenant in Section 6.10(a) or Section 6.10(b), as applicable, in respect of which such notice was delivered; provided that until timely receipt of the applicable Specified Equity Contribution is madeContribution, an Event of Default shall be deemed to exist for all other purposes of this Agreement, including, without limitation, Article IV and Article VI hereof and any term or provision of any Loan Document which prohibits any action to be taken by a Loan Party or any of its Restricted Subsidiaries during the existence of an Event of Default.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (Excelerate Energy, Inc.)
Equity Cure. Notwithstanding anything to the contrary contained in Section 7.01, in (a) In the event that the Borrower fails Credit Parties fail to comply with either Financial Covenant, from the end financial covenant set forth in Section 7.1 as of the last day of any fiscal period until Fiscal Quarter, any cash equity contribution to the expiration Borrowers (funded with proceeds of common equity issued by Phreesia or other equity issued by Borrowers not constituting Disqualified Stock) after the 10th last day of such Fiscal Quarter and on or prior to the day that is ten (10) Business Day following Days after the date day on which financial statements referred to in Section 5.01(a) or Section 5.01(b), as applicable, are required to be delivered for that Fiscal Quarter (each such date, a “Cure Deadline”) will, at the irrevocable election of the Borrower Representative, be included in respect the calculation of Consolidated EBITDA solely for the purposes of determining compliance with Section 7.1 at the end of such fiscal Fiscal Quarter (each, a “Cure Quarter”) and any subsequent period for which that includes such Financial Covenant is being measuredCure Quarter (any such equity contribution so included in the calculation of Consolidated EBITDA, if the Borrower receives a Specified Equity “Cure Contribution, the Borrower may apply the amount of the net cash proceeds thereof to increase EBITDA with respect to such fiscal quarter”); provided that that:
(i) notice of the Borrowers’ intent to accept a Cure Contribution shall be delivered by the Borrower Representative no later than the day on which financial statements are required to be delivered for the applicable Fiscal Quarter; (ii) in each consecutive four (4) Fiscal Quarter period of four consecutive fiscal quarters, there shall will be no more than at least two fiscal quarters (2) Fiscal Quarters in which a Specified Equity no Cure 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 Cure Contribution shall will be no more greater than the amount required to cause the Borrower Credit Parties to be in pro forma compliance with Section 6.13 for any applicable period, such financial covenant (the “Cure Amount”); (iv) all Specified Equity Cure Contributions shall will 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 Consolidated EBITDA for all other purposes, including, as applicable, calculating basket levels, pricing, determining compliance with incurrence based or pro forma calculations or conditions and Required Percentage any other items governed by reference to Consolidated EBITDA; and (v) there shall be no pro forma reduction more than five (5) Cure Contributions made in Indebtedness with the proceeds aggregate after the Closing Date.
(b) Upon Agent’s receipt 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 notice from the Borrower notifies any Administrative Agent that it intends Representative of its intent to make a Specified Equity Cure Contribution and ending pursuant to this Section 7.4 no later than the day on which financial statements are required to be delivered for the date applicable Fiscal Quarter, then, until the Specified Equity Contribution is made.Cure
Appears in 1 contract
Sources: Credit Agreement (Phreesia, Inc.)
Equity Cure. Notwithstanding anything At any time after delivery of the quarterly financial statements and Compliance Certificate to the contrary contained Agent in accordance with Section 7.014.1, in the event that the Borrower fails Credit Parties fail to comply with either Financial Covenant, from the end financial covenant set forth in Section 6.3 as of the last day of any fiscal period until calendar quarter any cash equity contribution to Holdings funded with proceeds of Permitted Cure Securities (any such equity contribution so included in the expiration calculation of EBITDA as provided below in this Section 6.5, a “Specified Equity Contribution”) after the 10th Business Day following last day of such calendar quarter and on or prior to the date day that is ten (10) days after the day on which 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 that calendar quarter will, at the irrevocable election of Borrower Representative, be included in the calculation of EBITDA solely for the purposes of determining compliance with the covenant set forth in Section 6.3 at the end of such fiscal quartercalendar quarter and any subsequent period that includes such calendar quarter (the “Cure Right”); provided that (ia) in each period notice of four consecutive fiscal quarters, there shall be no more than two fiscal quarters in which Holdings’ intent to accept a Specified Equity Contribution is madeshall be delivered by Borrower Representative no later than the day on which financial statements are required to be delivered with respect to the applicable calendar quarter, (iib) in each consecutive four (4) calendar quarter period there will be at least two (2) calendar quarters in which no more than five Specified Equity Contributions shall be made in the aggregate during the term of this AgreementCure Right is exercised, (iiic) the amount of any Specified Equity Contribution shall will be no more greater than the amount required to cause the Borrower Credit Parties to be in compliance with such financial covenants, (d) all Specified Equity Contributions will be disregarded for purposes of the calculation of EBITDA for all other purposes, including calculating basket levels, pricing, determining compliance with incurrence based or pro forma compliance with Section 6.13 for calculations or conditions and any applicable periodother items governed by reference to EBITDA and shall be deemed to not result in an increase in cash, (ive) the Cure Right shall be exercised no more than five (5) times in the aggregate after the Closing Date, (f) the Cure Right shall not be exercised in any two (2) consecutive calendar quarters and (g) the proceeds received by Holdings from all Specified Equity Contributions shall be disregarded promptly used by Credit Parties to prepay Term Loans in accordance with Section 2.1(a)(ii)(B)(v). Upon Agent’s receipt of notice from Borrower Representative of its election to exercise the Cure Right pursuant to this Section 6.5 no later than the day on which financial statements are required to be delivered for purposes of determining the applicable calendar quarter, then, until the day that is ten (10) days after such date, neither Agent nor any baskets, financial ratio based calculations Lender shall exercise the right to accelerate the Loans or pricing with respect terminate the Term Loan Commitments and neither Agent nor any Lender shall exercise any right to the covenants contained in this Agreement and the calculation foreclose on or take possession of the Available Amount Collateral solely on the basis of an Event of Default having occurred 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 being continuing under Sections 6.3 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.last day of such calendar quarter. MidCap / Xtant / Credit, Security and Guaranty Agreement (Term Loan)
Appears in 1 contract
Sources: Credit, Security and Guaranty Agreement (Term Loan) (Xtant Medical Holdings, Inc.)
Equity Cure. Notwithstanding anything to the contrary contained in Section 7.01, in In the event that the Borrower fails to comply with either Financial Covenant, from the end financial covenants set forth in Section 7.12 as of the last day of any fiscal period until quarter, any cash equity contribution (funded with proceeds from a sale or issuance of Qualified Stock of Borrower) to the expiration capital of Borrower after the 10th last day of such fiscal quarter and on or prior to the day that is 10 Business Day following Days after the date day on which financial statements referred to in Section 5.01(a) or Section 5.01(b), as applicable, are required to be delivered for that fiscal quarter will, at the irrevocable election of Borrower, be included in respect the calculation of Adjusted EBITDA solely for the purposes of determining compliance with such covenants in Section 7.12 at the end of such fiscal quarter (each, a “Cure Quarter”) and any subsequent period for which that includes such Financial Covenant is being measuredCure Quarter (any such equity contribution so included in the calculation of Adjusted EBITDA, 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 (ia) in each period notice of four consecutive fiscal quarters, there shall be no more than two fiscal quarters in which Borrower’s intent to accept a Specified Equity Contribution is madeshall be delivered by Borrower to Bank no later than the day on which financial statements are required to be delivered for the applicable fiscal quarter, (iib) no more than five Specified Equity Contributions shall be made in the aggregate during the term of this Agreement[reserved], (iiic) the amount of any Specified Equity Contribution shall will be no more greater than 100% of the amount required to cause the Borrower and its Subsidiaries to be in pro forma compliance with Section 6.13 for any applicable periodsuch financial covenants (the “Cure Amount”), (ivd) [reserved], (e) after December 31, 2020 Specified Equity Contributions shall not be made in any two consecutive quarters, (f) the aggregate amount of all Specified Equity Contributions made under this Section 7.13 shall be disregarded for purposes of determining any basketsnot exceed (i) $15,000,000 in the fiscal year ended December 31, 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 2020 and (vii) $10,000,000 per annum in each calendar year thereafter, (g) Borrower shall immediately apply the proceeds of a Specified Equity Contribution to prepay the Term Loan Advance in accordance with Section 2.3(d)(ii) and (h) there shall be no pro forma reduction in Indebtedness in connection with the proceeds of any Specified Equity Contribution (or the application of the proceeds thereof, including application of such proceeds for purposes of cash netting) for determining compliance with Section 6.13 7.12 for the period ending on the last day of the applicable Cure Quarter; provided that following any prepayment of the Term Loan Advance pursuant to Section 2.3(d)(ii) there shall be a reduction in Indebtedness for determining compliance with Section 7.12 in future fiscal quarter quarters where such Cure Quarter is included in the applicable test period (but, for the avoidance of doubt, there shall be no de-leveraging credit for the period ending on the last day of the Cure Quarter in respect of when such which the Specified Equity Contribution is made made). Upon Bank’s receipt of notice from Borrower of its intent to make a Specified Equity Contribution pursuant to this Section 7.13 no later than the day on which financial statements are required to be delivered for the applicable fiscal quarter, then, until the day that is 10 Business Days after such date, (either directly through prepayment x) Bank shall not exercise the right to accelerate the Term Loan Advance or indirectly as a result the Advances and Bank shall not exercise any right to foreclose on or take possession of the netting of unrestricted cash). Notwithstanding Collateral and (y) notwithstanding anything to the contrary herein, no Revolving Lender the Default Rate shall not be required applicable, in each case, solely on the basis of an Event of Default having occurred and being continuing as a result of Borrower’s failure to fund any Revolving Loans or other advance, and no Issuing Bank shall be required to issue any Letter in compliance with the financial covenants set forth in Section 7.12 in respect 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 last day of such fiscal quarter. If, after giving effect to the foregoing pro forma adjustment (but not, for the avoidance of doubt, giving pro forma adjustment to any repayment of Indebtedness in connection therewith), Borrower is in compliance with the financial covenants set forth in Section 7.12, Borrower shall be deemed to have satisfied the requirements of Section 7.12 as of the relevant date of determination with the Specified Equity Contribution is madesame effect as though there had been no failure to comply on such date, and the applicable breach or default of Section 7.12 that had occurred shall be deemed cured for purposes of this Agreement.”
Appears in 1 contract
Sources: Loan and Security Agreement (New Age Beverages Corp)
Equity Cure. Notwithstanding anything to the contrary contained in Section 7.016.7, for purposes of determining compliance with the financial covenants set forth in this Section 6.7, a cash equity contribution in Parent (in the event that form of a cash contribution or in exchange for Qualified Capital Stock) made after the Borrower fails to comply with either Financial Covenant, from the end of any fiscal period until the expiration commencement of the 10th Business Day following applicable Fiscal Quarter and on or prior to the date day that is ten days after the day on which financial statements referred to in Section 5.01(a) or Section 5.01(b), as applicable, are required to be delivered for such Fiscal Quarter will, at the request of Parent, which request will be made at the time of contribution, be included in respect the calculation of Combined EBITDA for the purposes of determining the Leverage Ratio and the Interest Coverage Ratio and as Cash and Cash Equivalents in the definition of Value for purposes of determining the Net Indebtedness to Value Ratio, in each case solely for purposes of determining compliance with such financial covenants at the end of such fiscal period for which Fiscal Quarter and applicable subsequent periods that include such Financial Covenant is being measuredFiscal Quarter (any such equity contribution so included in the calculation of Combined EBITDA or Value, if as the Borrower receives case may be, a “Specified Equity Contribution”); provided that (a)(i) Parent shall not be permitted to so request that a Specified Equity Contribution be included in the calculation of Combined EBITDA or as Cash and Cash Equivalents as described above with respect to any Fiscal Quarter unless, after giving effect to such requested Specified Equity Contribution, there will be a period of at least two consecutive Fiscal Quarters in the Borrower may apply the amount of the net cash proceeds thereof to increase EBITDA with respect to such fiscal quarter; provided that Relevant Four Fiscal Quarter Period (ias defined below) in each period of four consecutive fiscal quarters, there shall be which no more than two fiscal quarters in which a Specified Equity Contribution is has been made, and (ii) no more than five only three Specified Equity Contributions shall may be made in the aggregate during the term of this Agreement, (iiib) the amount of any Specified Equity Contribution shall be no more greater than the amount required to cause the Borrower Parent to be in pro forma compliance with Section 6.13 for any applicable period, such financial covenant(s) and (ivc) all Specified Equity Contributions shall will be disregarded for purposes of determining the availability of any baskets, financial ratio based calculations or pricing baskets with respect to the covenants contained in this Agreement and the calculation of Credit Documents. To the Available Amount and Required Percentage and (v) there shall be no pro forma reduction in Indebtedness with extent that the proceeds of any the Specified Equity Contribution are used to repay Indebtedness, such Indebtedness shall not be deemed to have been repaid for determining compliance with purposes of calculating any financial covenant set forth in Section 6.13 6.7 for the fiscal quarter in Relevant Four Fiscal Quarter Period. For purposes of this paragraph, the term “Relevant Four Fiscal Quarter Period” shall mean, with respect of when such to any requested Specified Equity Contribution is made Contribution, the four Fiscal Quarter period ending on (either directly through prepayment and including) the Fiscal Quarter in which Combined EBITDA or indirectly Cash and Cash Equivalents, as the case may be, will be increased 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 such Specified Equity Contribution and ending on the date the Specified Equity Contribution is madeContribution.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (General Growth Properties, Inc.)
Equity Cure. Notwithstanding anything to the contrary contained in this Section 7.019, for purposes of determining whether an Event of Default has occurred under the financial covenants set forth in the event that the Section 8, any cash equity contribution made to Borrower fails to comply with either Financial Covenant, from after the end of any fiscal period until the expiration of the 10th Business Day following a Fiscal Quarter (such Fiscal Quarter, a “Specified Quarter”) and on or prior to the date that is 10 Business Days after the day on which financial statements referred to in Section 5.01(a) or Section 5.01(b), as applicable, are required to be delivered for such Specified Quarter (the “Cure Expiration Date”) will, at the request of Borrower, be included in respect the calculation of EBITDA for the purposes of determining compliance with the applicable financial covenant at the end of such fiscal period for Specified Quarter and applicable subsequent periods which include such Financial Covenant is being measuredSpecified Quarter (any such equity contribution so included in the calculation of EBITDA, 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 (ia) in each period of four consecutive fiscal quarters, there shall be no more than two fiscal quarters in which a Specified Equity Contribution is madeContributions may be made in each four consecutive Fiscal Quarter period, (iib) no more than five four Specified Equity Contributions shall may be made in the aggregate during the term of this Agreement, (iiic) the amount of any Specified Equity Contribution shall be no more greater than the amount required to cause the Borrower to be in pro forma compliance with Section 6.13 for any the applicable periodfinancial covenant, (ivd) Specified Equity Contributions shall not reduce Indebtedness (directly by way of prepayment or indirectly by way of netting) for purposes of determining compliance with the financial covenants in any Fiscal Quarter in which they are included in EBITDA, (e) all Specified Equity Contributions shall be disregarded ignored for the purposes of determining financial ratio-based conditions or any baskets, financial ratio based calculations or pricing baskets with respect to the covenants contained in this Agreement and the calculation of the Available Amount and Required Percentage and Agreement, (vf) there shall be no pro forma reduction in Indebtedness with the proceeds of any such Specified Equity Contribution for determining compliance with Section 6.13 for shall have been contributed to Borrower in cash and (g) Borrower shall not be permitted to borrow Loans or request the fiscal quarter in respect issuance of when such Letters of Credit unless and until the Specified Equity Contribution is made (either directly through prepayment or indirectly as a result all Events of the netting of unrestricted cash)Default are waived. Notwithstanding anything to the contrary herein, no Revolving Lender shall be required to fund Bank may not exercise 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 remedies under Section 9.2 on the date basis of any actual or purported Event of Default under Section 8 following receipt of written notice by Bank of Borrower’s intention to cure a financial covenant default with the Borrower notifies any Administrative Agent that it intends to make proceeds of a Specified Equity Contribution unless and ending on until the date Cure Expiration Date has occurred without the Specified Equity Contribution is madehaving been received.
Appears in 1 contract
Sources: Loan and Security Agreement (National CineMedia, Inc.)
Equity Cure. Notwithstanding anything to the contrary contained in Section 7.01, in (a) In the event that the Borrower fails Credit Parties fail to comply with either Financial Covenant, from the end financial covenant set forth in Section 7.1 as of the last day of any fiscal period until Fiscal Quarter, any cash equity contribution to the expiration Borrower (funded with proceeds of common equity issued by Phreesia or other equity issued by Phreesia not constituting Disqualified Stock) after the 10th last day of such Fiscal Quarter and on or prior to the day that is ten (10) Business Day following Days after the date day on which financial statements referred to in Section 5.01(a) or Section 5.01(b), as applicable, are required to be delivered for that Fiscal Quarter (each such date, a “Cure Deadline”) will, at the irrevocable election of the Borrower, be included in respect the calculation of Consolidated EBITDA solely for the purposes of determining compliance with Section 7.1 at the end of such fiscal Fiscal Quarter (each, a “Cure Quarter”) and any subsequent period for which that includes such Financial Covenant is being measuredCure Quarter (any such equity contribution so included in the calculation of Consolidated EBITDA, if the Borrower receives a Specified Equity “Cure Contribution, the Borrower may apply the amount of the net cash proceeds thereof to increase EBITDA with respect to such fiscal quarter”); provided that that:
(i) notice of the Borrower’s intent to accept a Cure Contribution shall be delivered by the Borrower no later than the day on which financial statements are required to be delivered for the applicable Fiscal Quarter;
(ii) in each consecutive four (4) Fiscal Quarter period of four consecutive fiscal quarters, there shall will be no more than at least two fiscal quarters (2) Fiscal Quarters in which a Specified Equity no Cure 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 Cure Contribution shall will be no more greater than the amount required to cause the Borrower Credit Parties to be in pro forma compliance with Section 6.13 for any applicable period, such financial covenant;
(iv) all Specified Equity Cure Contributions shall will 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 Consolidated EBITDA for all other purposes, including, as applicable, calculating basket levels, pricing, determining compliance with incurrence based or pro forma calculations or conditions and Required Percentage and any other items governed by reference to Consolidated EBITDA;
(v) there shall be no pro forma reduction more than five (5) Cure Contributions made in Indebtedness with the proceeds of any Specified aggregate after the Closing Date; and
(vi) the Net Equity Contribution for determining compliance with Section 6.13 for the fiscal quarter Proceeds in respect of when such Specified Equity any Cure 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 madeapplied as set forth in Section 2.8(d).
Appears in 1 contract
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 the event the Loan Parties would otherwise default in each period any payment of four consecutive fiscal quartersprincipal, there interest, fees or other amount payable under this Agreement or any other Loan Document (each, a “Payment Default Amount”) when the same shall be due and payable, any cash equity contribution to Borrower (funded with a capital contribution to Parent or proceeds of Capital Stock issued by Parent having terms acceptable to the Agent in the Agent’s Discretion and in any case, not constituting Disqualified Capital Stock) on or prior to the due date for such payment will, at the irrevocable election of the Parent, be permitted solely for the purposes of making such payment (any such equity contribution, a “Payment Default Equity Contribution”), provided, that (A) notice of Parent’s irrevocable election to make a Payment Default Equity Contribution shall be delivered to Agent no more later than two fiscal quarters in the day on which a Specified such Payment Default Equity Contribution is made, (B) the amount of any Payment Default Equity Contribution will be no greater than the applicable Payment Default Amount, and (C) the gross proceeds of each Payment Default Equity Contribution shall be paid to the Agent to be applied to the applicable Payment Default Amount.
(ii) no In the event the Loan Parties fail to comply with the financial covenants set forth in Section 6.18(b), (c) or (d) as of the last day of any Fiscal Quarter, as applicable, any cash equity contribution to Borrower (funded with a capital contribution to Parent or proceeds of Capital Stock issued by Parent having terms acceptable to the Agent in the Agent’s Discretion and in any case, not constituting Disqualified Capital Stock) after the last day of such Fiscal Quarter, and on or prior to the day that is ten (10) Business Days after the day on which financial statements are required to be delivered for that Fiscal Quarter, will, at the irrevocable election of LEGAL02/39661241v2LEGAL02/39709302v6 the Parent, be included in the calculation of EBITDA solely for the purposes of determining compliance with such covenants at the end of Fiscal Quarter, and for not more than five three (3) subsequent periods that includes such Fiscal Quarter (any such equity contribution so included in the calculation of EBITDA, a “Covenant Default Equity Contribution”; each Payment Default Equity Contribution and Covenant Default Equity Contribution is referred to herein as a “Specified Equity Contribution”); provided, that (A) notice of Parent’s irrevocable election to make a Covenant Default Equity Contribution shall be delivered to Agent no later than the day on which financial statements are required to be delivered for the applicable Fiscal Quarter, (B) the amount of any Covenant Default Equity Contribution will be no greater than the amount required to cause the Loan Parties to be in compliance with such covenants, (C) all Covenant Default Equity Contributions will be disregarded for purposes of the calculation of EBITDA for all other purposes, including calculating basket levels, pricing and other items governed by reference to EBITDA, (E) the gross proceeds of all Covenant Default Equity Contributions shall be paid to the Agent to be applied as a mandatory prepayment (including the Make-Whole Amount or Prepayment Premium applicable thereto) of the Term Loan and applied under Section 2.05 hereof when funded and (F) the amount of the Term Loan prepaid with the proceeds of Covenant Default Equity Contributions shall be deemed outstanding for purposes of determining compliance with such covenants for the current Fiscal Quarter and the next three Fiscal Quarters thereafter.
(iii) Notwithstanding anything to the contrary herein, Specified Equity Contributions shall not be made in the aggregate (A) more than twice during the term of this Agreement, (iiiB) the amount of any Specified Equity Contribution shall be no in two consecutive Fiscal Quarters, (C) more than the once during any four consecutive Fiscal Quarter period or (D) in any single Fiscal Quarter in an 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 madegreater than $2,000,000.
Appears in 1 contract
Sources: Credit Agreement (LIVE VENTURES Inc)
Equity Cure. Notwithstanding anything For purposes of determining compliance with the financial covenant set forth in Section 6.03(a) as of the last day of any Quarterly Period, the Borrower may (i) make an optional prepayment of the Loans in accordance with Section 2.05(b) after the last day of such Quarterly Period and on or prior to the contrary contained in Section 7.01, in day that is ten (10) days after 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 day on which financial statements referred to in Section 5.01(a) or Section 5.01(b), as applicable, are required to be delivered for that fiscal quarter pursuant to Section 6.01(a) (the “Equity Cure Expiration Date”) using the proceeds of a cash equity contribution to the Borrower (funded with proceeds of common equity issued by the Borrower), and such Indebtedness shall be deemed to have not been outstanding as of the last of the immediately preceding Quarterly Period solely for the purposes of determining compliance with such covenant in respect Section 6.03(a) (each an “Equity Contribution Cure”) at the end of such fiscal period for which such Financial Covenant is being measured, if Quarterly Period or (ii) contribute or transfer additional Projects (or Project Subsidiaries) to Subsidiaries of the Borrower receives a Specified Equity Contributionafter the last day of such Quarterly Period and on or prior to the date that is thirty (30) days after the day on which financial statements are required to be delivered for that fiscal quarter pursuant to Section 6.01(a) (the “Asset Cure Expiration Date”), and such Projects (or Project Subsidiaries) shall be deemed to have been owned by the Borrower may apply the amount and its Subsidiaries for purposes of the net cash proceeds thereof to increase EBITDA determining compliance with respect to such fiscal quartercovenant in Section 6.03(a) (each an “Asset Contribution Cure”); provided that (ia) written notice of the Borrower’s intent to make an Equity Contribution Cure or an Asset Contribution Cure shall be delivered by the Borrower no later than the day on which financial statements are required to be delivered for the applicable fiscal quarter, (b) in each consecutive four (4) fiscal quarter period of four there will be at least two (2) fiscal consecutive fiscal quartersquarters in which no Equity Contribution Cure is made, (c) there shall be no more than two fiscal quarters in which a Specified three (3) Equity Contribution is made, (ii) no more than five Specified Equity Contributions shall be Cures made in the aggregate during after the term of this AgreementClosing Date, and (iiid) the amount proceeds received by Borrower from all equity contributions for the purposes of any Specified making Equity Contribution Cures shall be no more than the amount required to cause the held in a 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 Account until applied to the covenants contained in this Agreement and the calculation prepayment of the Available Amount and Required Percentage and (v) Loans; provided, further, that there shall be no pro forma reduction in Indebtedness with limit on the proceeds number of any Specified Asset Contribution Cures the Borrower may make. Upon the Administrative Agent’s receipt no later than the Equity Cure Expiration Date or Asset Cure Expiration Date, as applicable, of notice from the Borrower of its intent to make an Equity Contribution for determining compliance with Cure or Asset Contribution Cure pursuant to this Section 6.13 for 6.03(b), then, unless the fiscal quarter Equity Contribution Cure or Asset Contribution Cure, as applicable, is not made on or prior to the Equity Cure Expiration Date or Asset Cure Expiration Date, as applicable, neither any Agent nor any Lender shall exercise the right to accelerate the Loans or terminate the Commitments and neither any Agent nor any Lender shall exercise any right to foreclose on or take possession of the Collateral solely on the basis of an Event of Default having occurred and being continuing under Sections 6.03(b) 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 madelast day of such Quarterly Period.
Appears in 1 contract
Sources: Loan Agreement (Vivint Solar, Inc.)
Equity Cure. Notwithstanding anything to the contrary contained in Section 7.01, in In the event that the Borrower fails Credit Parties fail to comply with either Financial Covenant, from any financial covenant set forth in this Section 9.15 as of the end last day of any fiscal period until quarter, any cash equity contribution to Holdings (funded with proceeds of common equity issued by Holdings or other equity issued by Holdings and having terms reasonably acceptable to the expiration Administrative Agent, in each case contributed by Holdings to the Borrower) after the last day of such fiscal quarter and on or prior to the 10th Business Day following day that is ten (10) days after the date day on which financial statements referred to in Section 5.01(a) or Section 5.01(b), as applicable, are required to be delivered for that fiscal quarter will, at the irrevocable election of the Borrower, be included in respect the calculation of Consolidated EBITDA solely for the purposes of determining compliance with such covenants at the end of such fiscal quarter and any subsequent period for which that includes such Financial Covenant is being measuredfiscal quarter (any such equity contribution so included in the calculation of Consolidated EBITDA, 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 (ia) notice of the Borrower’s intent to make a Specified Equity Contribution shall be irrevocable and delivered no later than the day on which financial statements are required to be delivered for the applicable fiscal quarter, (b) in each consecutive four fiscal quarter period of four consecutive fiscal quarters, there shall will be no more than at least two (2) fiscal quarters in which a no Specified Equity Contribution is mademade and those shall not be consecutive fiscal quarter periods, (ii) no more than five Specified Equity Contributions shall be made in the aggregate during the term of this Agreement, (iiic) the amount of any Specified Equity Contribution shall will be no more greater than the amount required to cause the Borrower Credit Parties to be in pro forma compliance with Section 6.13 for any applicable periodsuch covenants, (ivd) all Specified Equity Contributions shall will 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 Consolidated EBITDA for all other purposes, including calculating basket levels, pricing and other items governed by reference to Consolidated EBITDA until the Available Amount first calculation date following the receipt by the Administrative Agent of the financial information and Required Percentage and related compliance certificate for the first full fiscal quarter ending after the date of the payment of the Specified Equity Contribution, (ve) there shall be no pro forma reduction more than two (2) Specified Equity Contributions made in Indebtedness the aggregate after the Closing Date, (f) the amount of any Loans prepaid with the proceeds of any Specified Equity Contributions shall be deemed outstanding for purposes of determining compliance with such covenants for the current fiscal quarter and the next three (3) fiscal quarter thereafter and (h) the amount of each Specified Equity Contribution for determining compliance with Section 6.13 for shall not exceed $5,000,000 and the fiscal quarter in respect aggregate amount of when such all 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 Contributions 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 madenot exceed $10,000,000.
Appears in 1 contract
Sources: Credit Agreement (Blucora, Inc.)
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 the event the Loan Parties would otherwise default in each period any payment of four consecutive fiscal quartersprincipal, there interest, fees or other amount payable under this Agreement or any other Loan Document (each, a “Payment Default Amount”) when the same shall be due and payable, any cash equity contribution to Borrower (funded with a capital contribution to Parent or proceeds of Capital Stock issued by Parent having terms acceptable to the Agent in the Agent’s Discretion and in any case, not constituting Disqualified Capital Stock) on or prior to the due date for such payment will, at the irrevocable election of the Parent, be permitted solely for the purposes of making such payment (any such equity contribution, a “Payment Default Equity Contribution”), provided, that (A) notice of Parent’s irrevocable election to make a Payment Default Equity Contribution shall be delivered to Agent no more later than two fiscal quarters in the day on which a Specified such Payment Default Equity Contribution is made, (B) the amount of any Payment Default Equity Contribution will be no greater than the applicable Payment Default Amount, and (C) the gross proceeds of each Payment Default Equity Contribution shall be paid to the Agent to be applied to the applicable Payment Default Amount.
(ii) no In the event the Loan Parties fail to comply with the financial covenants set forth in Section 6.18(b), (c) or (d) as of the last day of any Fiscal Quarter, as applicable, any cash equity contribution to Borrower (funded with a capital contribution to Parent or proceeds of Capital Stock issued by Parent having terms acceptable to the Agent in the Agent’s Discretion and in any case, not constituting Disqualified Capital Stock) after the last day of such Fiscal Quarter, and on or prior to the day that is ten (10) Business Days after the day on which financial statements are required to be delivered for that Fiscal Quarter, will, at the irrevocable election of the Parent, be included in the calculation of EBITDA solely for the purposes of determining compliance with such covenants at the end of Fiscal Quarter, and for not more than five three (3) subsequent periods that includes such Fiscal Quarter (any such equity contribution so included in the calculation of EBITDA, a “Covenant Default Equity Contribution”; each Payment Default Equity Contribution and Covenant Default Equity Contribution is referred to herein as a “Specified Equity Contribution”); provided, that (A) notice of Parent’s irrevocable election to make a Covenant Default Equity Contribution shall be delivered to Agent no later than the day LEGAL02/39661241v2LEGAL02/39709302v6 on which financial statements are required to be delivered for the applicable Fiscal Quarter, (B) the amount of any Covenant Default Equity Contribution will be no greater than the amount required to cause the Loan Parties to be in compliance with such covenants, (C) all Covenant Default Equity Contributions will be disregarded for purposes of the calculation of EBITDA for all other purposes, including calculating basket levels, pricing and other items governed by reference to EBITDA, (E) the gross proceeds of all Covenant Default Equity Contributions shall be paid to the Agent to be applied as a mandatory prepayment (including the Make-Whole Amount or Prepayment Premium applicable thereto) of the Term Loan and applied under Section 2.05 hereof when funded and (F) the amount of the Term Loan prepaid with the proceeds of Covenant Default Equity Contributions shall be deemed outstanding for purposes of determining compliance with such covenants for the current Fiscal Quarter and the next three Fiscal Quarters thereafter.
(iii) Notwithstanding anything to the contrary herein, Specified Equity Contributions shall not be made in the aggregate (A) more than twice during the term of this Agreement, (iiiB) the amount of any Specified Equity Contribution shall be no in two consecutive Fiscal Quarters, (C) more than the once during any four consecutive Fiscal Quarter period or (D) in any single Fiscal Quarter in an 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 madegreater than $2,000,000.
Appears in 1 contract
Sources: Credit Agreement (LIVE VENTURES Inc)
Equity Cure. Notwithstanding anything to the contrary contained in Section 7.01, in (a) In the event that the Borrower fails Credit Parties fail to comply with either Financial Covenant, from the end financial covenant set forth in Section 7.1 as of the last day of any fiscal period until Fiscal Quarter, any cash equity contribution to the expiration Borrowers (funded with proceeds of common equity issued by Phreesia or other equity issued by Borrowers not constituting Disqualified Stock) after the 10th last day of such Fiscal Quarter and on or prior to the day that is ten (10) Business Day following Days after the date day on which financial statements referred to in Section 5.01(a) or Section 5.01(b), as applicable, are required to be delivered for that Fiscal Quarter (each such date, a “Cure Deadline”) will, at the irrevocable election of the Borrower Representative, be included in respect the calculation of Consolidated EBITDA solely for the purposes of determining compliance with Section 7.1 at the end of such fiscal Fiscal Quarter (each, a “Cure Quarter”) and any subsequent period for which that includes such Financial Covenant is being measuredCure Quarter (any such equity contribution so included in the calculation of Consolidated EBITDA, if the Borrower receives a Specified Equity “Cure Contribution, the Borrower may apply the amount of the net cash proceeds thereof to increase EBITDA with respect to such fiscal quarter”); provided that that:
(i) notice of the Borrowers’ intent to accept a Cure Contribution shall be delivered by the Borrower Representative no later than the day on which financial statements are required to be delivered for the applicable Fiscal Quarter;
(ii) in each consecutive four (4) Fiscal Quarter period of four consecutive fiscal quarters, there shall will be no more than at least two fiscal quarters (2) Fiscal Quarters in which a Specified Equity no Cure 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 Cure Contribution shall will be no more greater than the amount required to cause the Borrower Credit Parties to be in pro forma compliance with Section 6.13 for any applicable period, such financial covenant (the “Cure Amount”);
(iv) all Specified Equity Cure Contributions shall will 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 Consolidated EBITDA for all other purposes, including, as applicable, calculating basket levels, pricing, determining compliance with incurrence based or pro forma calculations or conditions and Required Percentage and any other items governed by reference to Consolidated EBITDA; and
(v) there shall be no pro forma reduction more than five (5) Cure Contributions made in Indebtedness with the proceeds of any Specified Equity Contribution for determining compliance with Section 6.13 for aggregate after 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 madeClosing Date.
Appears in 1 contract
Sources: Credit Agreement (Phreesia, Inc.)
Equity Cure. Notwithstanding anything to the contrary contained in Section 7.01, in (a) In the event that the Borrower fails Loan Parties fail to comply with either Financial Covenant, from the end financial covenant set forth in Section 7.19 as of the last day of any fiscal period until applicable Fiscal Quarter, any cash equity contribution to the expiration Parent Borrower (funded with proceeds of common equity issued by Holdings or other equity issued by Holdings having terms reasonably acceptable to the 10th Administrative Agent and in any case, not constituting Disqualified Stock) on or prior to the day that is fifteen Business Day following Days after the date day on which financial statements referred to in Section 5.01(a) or Section 5.01(b), as applicable, are required to be delivered for that Fiscal Quarter (such fifteen Business Day period, the “Standstill Period”) will, at the irrevocable election of the Parent Borrower, be included in respect the calculation of Consolidated EBITDA solely for the purposes of determining compliance with the Fixed Charge Coverage Ratio for the relevant Measurement Period and any portion of subsequent period that includes such fiscal period for which Fiscal Quarter (any such Financial Covenant is being measuredequity contribution so included in the calculation of Consolidated EBITDA, 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 (ia) notice of the Parent Borrower’s intent to make a Specified Equity Contribution shall be delivered no later than the day on which financial statements are required to be delivered for the applicable Fiscal Quarter, (b) in each period of consecutive four consecutive fiscal quartersFiscal Quarter period, there shall be no more than at least two fiscal quarters Fiscal Quarters in which a no Specified Equity Contribution is made, (ii) made and there shall be no more than five Specified Equity Contributions shall be made in the aggregate during after the term of this AgreementOriginal Closing Date, (iiic) the amount of any Specified Equity Contribution shall be no more greater than the amount required to cause the Borrower Loan Parties to be in pro forma compliance with Section 6.13 for any applicable periodthe Fixed Charge Coverage Ratio, (ivd) 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 Consolidated EBITDA for all other purposes, including calculating basket levels, pricing and Required Percentage and other items governed by reference to Consolidated EBITDA, (ve) there shall be no pro forma reduction in any Indebtedness prepaid with the proceeds of any Specified Equity Contribution Contributions shall be deemed outstanding for purposes of determining compliance with Section 6.13 the Fixed Charge Coverage Ratio for the fiscal quarter in respect of when such Specified Equity Contribution is made current Fiscal Quarter and the next three Fiscal Quarters thereafter and (either directly through prepayment or indirectly as a result of f) during the netting of unrestricted cash). Notwithstanding anything to the contrary hereinStandstill Period, no Revolving Lender Borrowing shall be required permitted to fund any Revolving Loans or other advancebe made, and no Issuing Bank Letter of Credit may be issued, amended, extended or renewed.
(b) If, after giving effect to the adjustment referred to in clause (a) above, the Borrowers shall then be in compliance with the requirements of the financial covenant set forth in Section 7.19, the Borrowers shall be required deemed to issue any Letter have satisfied such requirements as of Creditthe relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, at any time during and the period beginning on applicable breach or default of the date financial covenant set forth in Section 7.19 that had occurred shall be deemed cured for 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 madepurposes of this Agreement.
Appears in 1 contract
Sources: Abl Credit Agreement (Steinway Musical Instruments Holdings, Inc.)
Equity Cure. Notwithstanding anything to the contrary contained in Section 7.018, in the event that the Borrower fails of any Event of Default for failure to comply with either Financial Covenant, from Section 7.1 at the end of any fiscal period quarter or fiscal year, until the expiration of the 10th tenth (10th) Business Day following after the date day on which the financial statements referred to in Section 5.01(a) or Section 5.01(b), as applicable, and Compliance Certificate are required to be delivered for such fiscal quarter or fiscal year (the “Cure Expiration Date”), the cash proceeds from any cash equity contribution (which equity shall be either common Equity Interests or other Qualified Equity Interests) made to Parent and contributed in respect cash to the common Equity Interests or other Qualified Equity Interests of the Borrowers after the end of such fiscal period quarter or fiscal year will, at the written request of the Borrowers, be included in the calculation of Consolidated EBITDA solely for which the purpose of determining compliance with Section 7.1 at the end of such Financial Covenant is being measuredfiscal quarter or fiscal year and applicable subsequent periods that include such fiscal quarter (any such equity contribution so included in the calculation of Consolidated EBITDA, if a “Specified Equity Contribution”, and the Borrower receives a amount of such Specified Equity Contribution, the Borrower may apply the amount of the net cash proceeds thereof to increase EBITDA with respect to such fiscal quarter“Cure Amount”); provided that (ia) in each period of four consecutive fiscal quarters, quarter period there shall will be no more than a period of at least two fiscal quarters in which a no Specified Equity Contribution is made, (iib) no more than five four (4) Specified Equity Contributions shall may be made in the aggregate during the term of this Agreement, (iiic) the amount of any Specified Equity Contribution shall be no more than the amount required to cause Parent and the Borrower Borrowers to be in pro forma compliance with the financial covenant set forth in Section 6.13 7.1 for such fiscal quarter, (d) Consolidated EBITDA shall be increased by an amount equal to such Specified Equity Contribution solely for the purpose of determining compliance with the financial covenant set forth in Section 7.1 with respect to any Reference Period that includes the fiscal quarter for which such Specified Equity Contribution was made and not for any applicable period, other purpose under this Agreement (iv) all Specified Equity Contributions shall be disregarded including for purposes of determining any baskets, financial ratio based calculations or pricing (x) calculating Consolidated EBITDA for all purposes under this Agreement other than with respect to determining compliance with Section 7.1 and (y) determining the covenants contained availability or amount of any covenant baskets or carve-outs, pricing or for any other purpose). Parent shall, on or prior to the making of any Specified Equity Contribution, give the Administrative Agent a written notice identifying the aggregate amount of such Specified Equity Contribution to be used to test compliance with Section 7.1 for such fiscal quarter. Upon the making of a Specified Equity Contribution, the financial covenant set forth in Section 7.1 shall be recalculated giving effect to the increase in Consolidated EBITDA and, if, after giving effect to such recalculation, Parent and the Borrower are in compliance with the financial covenant set forth in Section 7.1 as of the relevant date of determination, such failure to comply with Section 7.1 shall be deemed to have been cured; provided that until the making of such Specified Equity Contribution, the Event of Default arising from failure to comply with Section 7.1 shall be deemed to exist for all purposes of the Loan Documents, including, without limitation, conditions to funding (provided, that during such period neither Administrative Agent nor any Lender may impose default interest, accelerate the Obligations, terminate any Revolver Commitment or exercise any enforcement remedy against the Borrower solely as a result of such failure to comply with Section 7.1), and in the event that the Specified Equity Contribution is not made by the Cure Expiration Date, default interest may be charged against the Obligations due and owing in accordance with the Loan Documents from the end of the applicable fiscal quarter in which the failure to comply with Section 7.1 occurred and the Lenders shall have all rights and remedies available to them in respect of the outstanding failure to comply with Section 7.1 as provided 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.other
Appears in 1 contract
Equity Cure. Notwithstanding anything to the contrary contained in Section 7.01, in In the event that the Borrower fails Credit Parties fail to comply with either Financial Covenant, from any financial covenant set forth in this Section 9.15 as of the end last day of any fiscal period until quarter, any cash equity contribution to Holdings (funded with proceeds of common equity issued by Holdings or other equity issued by Holdings and having terms reasonably acceptable to the expiration Administrative Agent, in each case contributed by Holdings to the Borrower) after the last day of such fiscal quarter and on or prior to the 10th Business Day following day that is ten (10) days after the date day on which financial statements referred to in Section 5.01(a) or Section 5.01(b), as applicable, are required to be delivered for that fiscal quarter will, at the irrevocable election of the Borrower, be included in respect the calculation of Consolidated EBITDA solely for the purposes of determining compliance with such covenants at the end of such fiscal quarter and any subsequent period for which that includes such Financial Covenant is being measuredfiscal quarter (any such equity contribution so included in the calculation of Consolidated EBITDA, 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 (ia) notice of the Borrower’s intent to make a Specified Equity Contribution shall be irrevocable and delivered no later than the day on which financial statements are required to be delivered for the applicable fiscal quarter, (b) in each consecutive four fiscal quarter period of four consecutive fiscal quarters, there shall will be no more than at least two (2) fiscal quarters in which a no Specified Equity Contribution is mademade and those shall not be consecutive fiscal quarter periods, (ii) no more than five Specified Equity Contributions shall be made in the aggregate during the term of this Agreement, (iiic) the amount of any Specified Equity Contribution shall will be no more greater than the amount required to cause the Borrower Credit Parties to be in pro forma compliance with Section 6.13 for any applicable periodsuch covenants, (ivd) all Specified Equity Contributions shall will 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 Consolidated EBITDA for all other purposes, including calculating basket levels, pricing and Required Percentage and other items governed by reference to Consolidated EBITDA, (ve) there shall be no pro forma reduction more than two (2) Specified Equity Contributions made in Indebtedness the aggregate after the Closing Date, (f) the amount of any Loans prepaid with the proceeds of any Specified Equity Contributions shall be deemed outstanding for purposes of determining compliance with such covenants for the current fiscal quarter and the next three (3) fiscal quarter thereafter and (h) the amount of each Specified Equity Contribution for determining compliance with Section 6.13 for shall not exceed $5,000,000 and the fiscal quarter in respect aggregate amount of when such all 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 Contributions 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 madenot exceed $10,000,000.
Appears in 1 contract
Sources: Credit Agreement (Blucora, Inc.)
Equity Cure. Notwithstanding anything If any statement delivered pursuant 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(a7.1(a) or Section 5.01(b7.1(b) indicates that the Debt Service Coverage Ratio is less than 1.05 to 1.00, then the Sponsors may, within ten (10) Business Days after the delivery of the statement pursuant to Section 7.1(a) or 7.1(b) indicating such shortfall, provide funds to the Company through a capital contribution or the issuance of subordinated Indebtedness the proceeds of which shall be used to prepay an amount of Notes (at par), 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 together with accrued interest on the amount of Notes so prepaid plus an amount equal to the net cash proceeds thereof to increase EBITDA Modified Make-Whole Amount determined for the prepayment with respect to such fiscal quarter; provided principal amount (the Equity Cure Amount), such that after giving pro forma effect to such prepayment in accordance with this Section 8.3(b), the Debt Service Coverage Ratio for the period in question would be greater than 1.05 to 1.00 but not more than 1.35 to 1.00. The Company will give each holder of Notes written notice of each optional prepayment under this Section 8.3(b) not less than thirty (i30) in each period of four consecutive fiscal quarters, there days and not more than sixty (60) days prior to the date fixed for such prepayment. Each such notice shall specify such date (which shall be no a Business Day), the aggregate principal amount of the Notes to be prepaid on such date, the principal amount of each Note held by such holder to be prepaid (determined in accordance with Section 8.5), and the interest to be paid on the prepayment date with respect to such principal amount being prepaid and shall be accompanied by a certificate of a Senior Financial Officer as to the estimated Modified Make-Whole Amount due in connection with such prepayment (calculated as if the date of such notice were the date of the prepayment), setting forth the details of such computation. Two (2) Business Days prior to such prepayment, the Company shall deliver to each holder of Notes a certificate of a Senior Financial Officer specifying the calculation of such Modified Make-Whole Amount as of the specified prepayment date. The Sponsors shall not be allowed to make such prepayments in respect of more than two fiscal quarterly determinations of the Debt Service Coverage Ratio in any four consecutive quarters in which a Specified Equity Contribution is made, (ii) no or more than five Specified Equity Contributions shall be made four times in the aggregate during throughout the term of this Agreement, (iii) the and not more than 20% in aggregate amount of any Specified the Notes may be prepaid pursuant to this Section 8.3(b). The Equity Contribution shall be no more than Cure Amount will taken in account solely for the amount required to cause the Borrower to be in pro forma purpose of calculating compliance with the financial covenant in Section 6.13 for any applicable period, (iv) all Specified Equity Contributions 9.11 and shall be disregarded for purposes of determining any baskets, financial ratio based calculations or pricing with respect to whether the covenants contained Company has satisfied the criteria for making a Restricted Payment as set forth 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 made10.13.
Appears in 1 contract
Equity Cure. Notwithstanding anything to the contrary contained in Section 7.01, in In the event that the Borrower fails to comply with either the Financial Covenant, from the end Covenants as of any fiscal period until Test Date, any cash equity contribution (or qualified preferred equity or other equity on terms reasonably satisfactory to the expiration Administrative Agent) in the Borrower after the beginning of the 10th applicable Fiscal Quarter ending on such Test Date and on or prior to the day that is ten (10) Business Day following Days after the date day on which financial statements referred to in Section 5.01(a) or Section 5.01(b), as applicable, are required to be delivered for the Fiscal Quarter ended on such Test Date will, at the irrevocable election of the Borrower, be included in respect the calculation of Consolidated Adjusted EBITDA solely for the purposes of determining compliance with the Financial Covenants as of such fiscal period Test Date and as of any subsequent Test Date that includes such Fiscal Quarter for which purposes of determining compliance with the Financial Covenants (any such Financial Covenant is being measuredequity contribution so included in the calculation of Consolidated Adjusted EBITDA, 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 may be made in the aggregate any four consecutive Fiscal Quarter period and only three Specified Equity Contributions may be made during the term of this Agreement, (iiiii) the amount of any Specified Equity Contribution shall will be no more greater than the amount required to cause the Borrower to be in pro forma compliance with Section 6.13 for any applicable periodthe Financial Covenants, (iviii) all Specified Equity Contributions shall will be disregarded for purposes all other purposes, including the calculation of determining any basketsConsolidated Adjusted EBITDA, financial ratio based calculations or pricing other than the compliance with the Financial Covenants for such applicable Test Period and subsequent Test Periods that include the Fiscal Quarter ending on the applicable Test Date, and including calculating basket levels and other items governed by reference to Consolidated Adjusted EBITDA, (iv) with respect to the covenants contained in this Agreement and the calculation Fiscal Quarter for which it is contributed to cure a breach of the Available Amount Financial Covenants, any Specified Equity Contribution shall not reduce the outstanding Indebtedness of the Borrower for such Fiscal Quarter (it being understood and Required Percentage agreed that such limitation shall not apply in subsequent Fiscal Quarters if actually applied to repay Term Loans) and (v) there the Borrower shall not, unless otherwise agreed by the Required Lenders under the Revolving Credit Facility, be no pro forma reduction in Indebtedness with permitted to incur Revolving Loans or request the issuance of Letters of Credit during the ten Business Day period referred to above unless and until the Borrower has received 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 madeContribution.
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Equity Cure. Notwithstanding anything to the contrary contained in Section 7.01, in In the event that the Borrower fails Loan Parties fail to comply with either Financial Covenant, from the end financial covenant set forth in Section 9.1 as of the last day of any fiscal period until quarter for which such covenant is tested, any cash equity contribution to the expiration Borrower after the last day of such fiscal quarter and on or prior to the 10th Business Day following day that is 10 days after the date day on which financial statements referred to in Section 5.01(a) or Section 5.01(b), as applicable, are required to be delivered for that fiscal quarter will, at the irrevocable election of the Borrower, be included in respect the calculation of EBITDA solely for the purposes of determining compliance with the financial covenant in Section 9.1 at the end of such fiscal quarter and any subsequent testing period for which that includes such Financial Covenant is being measuredfiscal quarter (each, if a “Cure Quarter”, and any such equity contribution so included in the Borrower receives calculation of EBITDA, 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 the Borrower shall provide written notice to the Agent of four consecutive fiscal quarters, there shall be no more than two fiscal quarters in which its intent to accept a Specified Equity Contribution is madeno later than the day on which financial statements are required to be delivered for the applicable fiscal quarter, (ii) no more than five only two Specified Equity Contributions shall may be made in the aggregate during after the term of this AgreementAmendment No. 3 Effective Date, (iii) the amount of any Specified Equity Contribution shall will be no more greater than the amount required to cause the Borrower Loan Parties to be in pro forma compliance with Section 6.13 for any applicable periodsuch financial covenants (the “Cure Amount”), (iv) all Specified Equity Contributions shall will 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 EBITDA for all other purposes, including calculating basket levels, pricing, determining compliance with incurrence based or pro forma calculations or conditions and Required Percentage any other items governed by reference to EBITDA and (v) the proceeds received by the Borrower from all Specified Equity Contributions shall be promptly used by the Borrower to prepay Term Loans in accordance with Section 2.5(d) and there shall be no pro forma reduction in Consolidated Funded Indebtedness in connection with the proceeds of any Specified Equity Contribution (or the application of the proceeds thereof) for determining compliance with Section 6.13 any provision under Article IX 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 last day of the Specified Equity Contribution is madeapplicable Cure Quarter.
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Equity Cure. Notwithstanding anything to the contrary contained in Section 7.01, in the event that the Lead Borrower fails to comply with either Financial Covenant, from the end of any fiscal period until the expiration of the 10th tenth (10th) Business Day following the date financial statements referred to in Section Sections 5.01(a) or Section 5.01(b(b), as applicable, are required to be delivered in respect of such fiscal period for which such Financial Covenant is being measured, if the Lead Borrower receives a Specified Equity Contribution, the Lead 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 Lead 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 or fees 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 Lead Borrower notifies any the Administrative Agent that it intends to make a Specified Equity Contribution and ending on the date the Specified Equity Contribution is made.
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Equity Cure. Notwithstanding anything to the contrary contained in Section 7.01, in In the event that the Borrower fails Loan Parties fail to comply with either any financial covenant contained in Section 8.11 (a “Financial CovenantCovenant Default”), from the end Parent Borrower shall have the right to cure such Event of Default on the following terms and conditions (the “Equity Cure”):
(a) In the event the Parent Borrower desires to cure a Financial Covenant Default, the Parent Borrower shall deliver to the Administrative Agent irrevocable written notice of its intent to cure (a “Cure Notice”) at any fiscal time during the period until commencing on the expiration date that the financial statements and corresponding Compliance Certificate as of and for the period ending on the last day of the 10th Business Day following fiscal quarter as of which such Financial Covenant Default occurred (the date financial statements referred to in Section 5.01(a“Testing Date”) 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 Administrative Agent and the Lenders and ending on the tenth (10th) Business Day thereafter. The Cure Notice shall set forth the calculation of the Available applicable Financial Covenant Cure Amount and Required Percentage and (vas hereinafter defined).
(b) there In the event the Parent Borrower delivers a Cure Notice in accordance with clause (a) above, a capital contribution (in either (w) common stock of the Parent Borrower, (x) Curative Preferred Equity, (y) other preferred equity provided by Oaktree Capital Management or its Affiliates that is not Disqualified Stock or (z) other Equity Interests that are on terms reasonably satisfactory to the Administrative Agent) 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 hereinParent Borrower by a Permitted Holder, no Revolving Lender in an amount such that the Net Cash Proceeds thereof shall be required equal to fund any Revolving Loans or other advance, and no Issuing Bank shall be required to issue any Letter of Creditthe Financial Covenant Cure Amount, at any time during the period beginning commencing on the date of the Borrower notifies any Administrative Agent that it intends to make a Specified Equity Contribution Agent’s receipt of such Cure Notice and ending on the fifteenth (15th) Business Day following the date on which the Specified Equity relevant financial statements and Compliance Certificate were required to be delivered to the Administrative Agent and the Lenders (such fifteenth (15th) Business Day, the “Required Contribution Date”). All of the Net Cash Proceeds of such capital contribution (such amount, the “Contributed Amount”) shall be immediately contributed to the capital of the Parent Borrower and used by the Parent Borrower to make a prepayment of the Loans in the amount of such Contributed Amount, to be applied to the Loans in accordance with Section 2.05(b)(vi). The “Financial Covenant Cure Amount” shall be the lowest amount which if added to the amount of Consolidated EBITDA as of the applicable Testing Date, would result in the Loan Parties being in pro forma compliance with the applicable financial covenant which is madethe subject of such Financial Covenant Default(s) as of such Testing Date (provided, however, that if more than one such Financial Covenant Default exists as of a testing date, the Financial Covenant Cure Amount for purposes hereof shall equal the lowest amount which if added to the amount of Consolidated EBITDA as of the applicable Testing Date, would result in the Loan Parties being in pro forma compliance with all financial covenants which are the subject of such Financial Covenant Defaults as of such Testing Date).
Appears in 1 contract
Sources: Credit Agreement (Montrose Environmental Group, Inc.)
Equity Cure. Notwithstanding anything to the contrary contained in Section 7.01, in In the event that the Borrower fails Borrowers fail to comply with either Financial Covenant, from the end financial covenant set forth in Section 6.10(a) as of the last day of any fiscal period until quarter, any cash equity contribution to the expiration Borrowers (funded with proceeds of common equity or other equity issued by any of the 10th Borrowers or any of the Guarantors having terms reasonably acceptable to the Administrative Agent) after the last day of such fiscal quarter and on or prior to the day that is ten (10) Business Day following Days after the date financial statements referred to in Section 5.01(a) or Section 5.01(b), as applicable, are day on the Compliance Certificate is required to be delivered for that fiscal quarter will, at the irrevocable election of the Borrower Representative, be included in respect the calculation of EBITDA solely for the purposes of determining compliance with the financial covenant set forth in Section 6.10(a) at the end of such fiscal quarter (each, a “Cure Quarter”) and any subsequent period for which that includes such Financial Covenant is being measuredCure Quarter (any such equity contribution so included in the calculation of EBITDA, 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 will be no more greater than the amount required to cause the Borrower Borrowers to be in pro forma compliance with Section 6.13 for any applicable periodthe Debt Service Coverage Ratios (the “Cure Amount”), (ivii) all each Specified Equity Contributions shall Contribution will 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 EBITDA for all other purposes, including calculating basket levels, pricing, determining compliance with incurrence based or pro forma calculations or conditions, and Required Percentage and other items governed by reference to EBITDA, (viii) there shall be no pro forma or other reduction in Indebtedness (through either the netting of cash or prepayment of the Loans or other Indebtedness) with the proceeds of any Specified Equity Contribution for determining compliance with the financial covenant set forth in Section 6.13 6.10(a) for the periods in which such Specified Equity Contribution is included in EBITDA; provided that no reduction shall apply in any event with respect to the fiscal quarter in respect of when which such Specified Equity Contribution is made, (iv) no more than three (3) Specified Equity Contributions may be made during the term of this Agreement, (either directly through prepayment or indirectly as a result v) Specified Equity Contributions may not be made in consecutive fiscal quarter periods, and (vi) the proceeds received by the Borrowers from each Specified Equity Contribution shall be promptly used by the Borrower Representative to prepay the Loans, Upon the Administrative Agent’s receipt of notice from the Borrower Representative 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 Borrowers’ intent to make a Specified Equity Contribution pursuant to this Section 6.10(b) no later than the day on which the Compliance Certificate is required to be delivered for the applicable fiscal quarter, then, until the day that is ten (10) Business Days after such date, neither the Administrative Agent nor any Lender shall exercise the right to accelerate the Loans and neither the Administrative Agent nor any Lender shall exercise any right to foreclose on or take possession of the Collateral solely on the basis of an Event of Default having occurred and being continuing as a result of the Borrower’s failure to comply with the financial covenant set forth in Section 6.10(a) in respect of the period ending on the date the Specified Equity Contribution is madelast day of such fiscal quarter.
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Sources: Draw Down Note Purchase and Continuing Covenant Agreement (Sky Harbour Group Corp)