Budget Variance Covenant. (a) Commencing with the delivery of the Budget Variance Report for the Budget Variance Test Period ending on January 28, 2023, and as of each subsequent Budget Variance Test Period, the Borrowers and the Subsidiary Guarantors shall not, nor shall they permit any of their Subsidiaries to, permit:
(i) actual receipts for such Budget Variance Test Period (excluding Extraordinary Receipts and proceeds of non-ordinary course asset sales unless approved by the Required Lenders) to be less than 15.0% of the forecasted receipts for such Budget Variance Test Period in the applicable Approved Budget;
(ii) actual operating disbursements for such Budget Variance Test Period to be greater than 115.0% of the forecasted operating disbursements for such Budget Variance Test Period in the applicable Approved Budget;
(iii) actual capital expenditures for such Budget Variance Test Period to be greater than 115.0% of the forecasted capital expenditures for such Budget Variance Test Period in the applicable Approved Budget; and
(iv) actual non-operating disbursements (including disbursements of the type identified as “Restructuring / Ch. 11 Items” provided under the Initial Budget and subsequent Approved Budget but excluding restructuring professional fees) for such Budget Variance Test Period to be greater than 115.0% of the forecasted non-operating disbursements for such Budget Variance Test Period in the applicable Approved Budget.
(b) Commencing on the first full calendar week following the Closing Date, the Borrowers and the Subsidiary Guarantors shall not, nor shall they permit any of their Subsidiaries to, permit, with respect to the cumulative period since the Closing Date, actual disbursements paid from the Carve-Out Account for “Restructuring Professional Fees” (as set forth in the Approved Budget) incurred by the Debtors’ professionals to be greater than 115.0% of the actual disbursements paid to the Carve-Out Account during such cumulative period in accordance with the applicable Approved Budget. To the extent that any Budget Variance Test Period encompasses a period that is covered in more than one Approved Budget, the applicable weeks from each applicable Approved Budget shall be utilized in making the calculations pursuant to this Section 6.17.
Budget Variance Covenant. (a) Commencing with the delivery of the Budget Variance Report for the Budget Variance Test Period ending on June 18, 2023, and as of each subsequent Budget Variance Test Period, the Company and the Guarantors shall not permit:
(i) actual total receipts for such Budget Variance Test Period to be less than 80.0% of the forecasted receipts for such Budget Variance Test Period in the applicable Approved Budget;
(ii) actual total disbursements for such Budget Variance Test Period to be greater than 115.0% of the forecasted total disbursements for such Budget Variance Test Period in the applicable Approved Budget; and
(iii) the variance of the sum of actual total receipts plus actual total disbursements for such Budget Variance Test Period to be greater than 15.0% to the forecasted sum of total receipts plus total disbursements for such Budget Variance Test Period in the applicable Approved Budget. To the extent that any Budget Variance Test Period encompasses a period that is covered in more than one Approved Budget, the applicable weeks from each applicable Approved Budget shall be utilized in making the calculations pursuant to this Section 6.39.
Budget Variance Covenant. (a) Commencing with the first full calendar week of the Cases, for each Variance Testing Period, neither the Borrower nor any Subsidiary will permit the aggregate actual operating disbursements of the Credit Parties to be more than 115% of the projected amounts therefor set forth in the Approved Budget (such variance, the “Permitted Disbursements Variance”).
(b) The payment of estate professional fees shall be subject to the Interim Order (and upon entry of the Final Order, the Final Order) and the Approved Budget.
(c) Except in each case as consented to by Administrative Agent in writing in its reasonable discretion, commencing with the first full calendar week of the Cases, for each Variance Testing Period, neither the Borrower nor any Subsidiary will permit the aggregate actual professionals disbursements (excluding counsel to the Administrative Agent) and the aggregate actual non-operating disbursements to be more than 115% of the projected amounts therefor set forth in the Approved Budget (such variance, the “Permitted Professionals Variance”); provided, that the Credit Parties may reallocate amounts not so spent or dispersed by the Credit Parties in any four-week period to any subsequent four-week rolling period.
Budget Variance Covenant. Pay any expenses or other disbursements other than in accordance with the Approved Budget, subject to the Permitted Variance. Every other Thursday, commencing on August 8, 2024, the Permitted Variances (as defined below) shall be tested on a bi-weekly basis for the prior cumulative two-weekly period for Total Disbursements (the “Bi-Weekly Disbursement Period”) against the Approved Budget, and Total Disbursements shall not be more than 120% of the Total Disbursements in the Approved Budget for such Bi-Weekly Disbursement Period (the “Permitted Variances”).
Budget Variance Covenant. (a) Commencing with the first full calendar week of the Cases, for each Variance Testing Period, neither the Borrower nor any Subsidiary will permit the aggregate actual operating disbursements of the Credit Parties to be more than 115% of the projected amounts therefor set forth in the Approved Budget (such variance, the “Permitted Disbursements Variance”).
(b) Except in each case as consented to by Administrative Agent in writing in its reasonable discretion, commencing with the first full calendar week of the Cases, for each Variance Testing Period, neither the Borrower nor any Subsidiary will permit the aggregate actual professionals disbursements (excluding counsel to the Administrative Agent) and the aggregate actual non-operating disbursements to be more than 115% of the projected amounts therefor set forth in the Approved Professional Fee Budget (such variance, the “Permitted Professionals Variance”); provided, that the Credit Parties may reallocate amounts not so spent or dispersed by the Credit Parties in any four-week period to any subsequent four-week rolling period.
Budget Variance Covenant. Commencing with the delivery of the Budget Variance Report for the Test Period ending on July 9, 2022, and as of each subsequent Budget Variance Test Date, for the most recently ended Test Period, permit:
(a) actual receipts for such Test Period to be less than 80% of the forecasted actual receipts for such Test Period in the applicable Approved Budget;
(b) actual disbursements for such Test Period (excluding professional fees and expenses, including, for the avoidance of doubt, all such fees and expenses paid pursuant to the Orders) to be greater than 120% of the forecasted actual disbursements for such Test Period in the applicable Approved Budget; and
(c) actual net cash flow for such Test Period to be less than (i) if the forecasted net cash flow (excluding professional fees and expenses, including, for the avoidance of doubt, all such fees and expenses paid pursuant to the Orders) for such Test Period is greater than $10,000,000, 85% of such forecasted results in the applicable Approved Budget, (ii) if the forecasted net cash flow (excluding professional fees and expenses, including, for the avoidance of doubt, all such fees and expenses paid pursuant to the Orders) for such Test Period is less than or equal to $10,000,000 but greater than or equal to negative $10,000,000, $1,500,000 less than such forecasted results in the applicable Approved Budget, and (iii) if the forecasted net cash flow (excluding professional fees and expenses, including, for the avoidance of doubt, all such fees and expenses paid pursuant to the Orders) for such Test Period is less than negative $10,000,000, 115% of such forecasted results in the applicable Approved Budget. To the extent that any Test Period encompasses a period that is covered in more than one Approved Budget, the applicable weeks from each applicable Approved Budget shall be utilized in making the calculations pursuant to this Section 7.17. For the avoidance of doubt, all fees, charges and expenses incurred in connection with obtaining or maintaining credit ratings are deemed to be permitted in accordance with the Approved Budget (regardless of whether provided for therein) for all purposes.
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Budget Variance Covenant. On each Budget Variance Test Date (commencing with the delivery of the Budget Variance Report for the Budget Variance Test Period ending on April 12, 2024), the Company shall not permit net cash flow for such Budget Variance Test Period (excluding the effects of (i) proceeds of non-ordinary course asset sales unless approved by the Required DIP Creditors, (ii) shortfalls in receipts as a result of an MGT plant shutdown or termination of the MGT Contract, (iii) a loss of access to funding related to the flow of receipts from EWH JV to the Debtors and (iv) subject to the proviso below, professional fee disbursements) to have a shortfall with an absolute value of more than the greater of $2,000,000 and 15.0% of the forecasted net cash flow for such Budget Variance Test Period in the applicable Approved Budget.; provided that (i) in the event the Ad Hoc Group or the Ad Hoc Group Advisors has filed a notice on the Bankruptcy Court docket in the Chapter 11 Cases indicating an objection to proposed or requested Company Retained Professionals Disbursements with respect to any advisor or professional of any of the Debtors, the Company Retained Professionals Disbursements with respect to such advisor or professional shall be included in such calculation and variance test, unless and until such time as the objection has been withdrawn by or on behalf of the Ad Hoc Group or is otherwise resolved, or the fees and expenses subject to such objection have, notwithstanding such objection, been approved pursuant to an order issued by the Bankruptcy Court and (ii) if and to the extent any Company Retained Professionals Disbursements are included in the variance calculation pursuant to this proviso with respect to any advisor or professional, any favorable variances with respect to the Company Retained Professionals Disbursements applicable or attributable to such advisor or professional from all periods prior to the applicable Budget Variance Test Period (calculated on a cumulative, basis) may be carried forward into such applicable Budget Variance Test Period.
Budget Variance Covenant. Commencing with the delivery of the Budget Variance Report for the Budget Test Period ending on December 16, 2023 (i.e., the Budget Variance Report delivered on December 21, 2023), and as of each subsequent Budget Variance Test Date, for the most recently ended Budget Test Period, the Loan Parties shall not permit (without the consent of the Required Lenders in their sole discretion):
(a) the positive variance (as compared to the Approved Budget) of aggregate operating disbursements made by the Borrower and its consolidated Restricted Subsidiaries for such Budget Test Period to exceed 15.0%; and
(b) if (i) net operating cash flows in the Approved Budget is a positive number, the actual net operating cash flows of the Borrower and its consolidated Restricted Subsidiaries for such Budget Test Period shall be no less than 85.0% of the net operating cash flows in the Approved Budget for such Budget Test Period and (ii) net operating cash flows in the Approved Budget is a negative number, the absolute value of actual net operating cash flows of the Borrower and its consolidated Restricted Subsidiaries for such Budget Test Period shall be no greater than 115.0% of the absolute value of net operating cash flows in the Approved Budget for such Budget Test Period; provided, that any variance of net operating cash flows that is less than $1,000,000 in the aggregate shall not constitute a breach of this covenant. The permitted variances set forth above shall be referred to herein as the “Permitted Variances.”
Budget Variance Covenant. As of the end of every two week period commencing on April 29, 2019 (i) the sum of the Debtors’ actual cash receipts during the applicable Test Period (as defined below) shall not be less than 85% of the projected “cash receipts” for such Test Period as set forth in the DIP Budget and (ii) the sum of the Debtors’ actual operating cash disbursements during such Test Period shall not exceed 115% of the projected “operating cash disbursements” (which shall in each case include capital expenditures) for such Test Period as set forth in the DIP Budget. “Test Period” shall mean, with respect to actual cash receipts and operating cash disbursements, (x) initially, the two-week period commencing on April 29, 2019 and ending on May 10, 2019 and (y) thereafter, each rolling four-week period.1
