Common use of Curative Equity Clause in Contracts

Curative Equity. (a) At the election of Administrative Borrower upon written notice to Agent and subject to the limitations set forth in clause (d) below, Holdings and Borrowers may cure (and shall be deemed to have cured) an Event of Default arising out of a breach of the Fixed Charge Coverage Ratio financial covenant set forth in Article 7 if they receive the cash proceeds of an investment of Curative Equity within 10 Business Days after the date on which the Fixed Charge Coverage Ratio is first required to be tested pursuant to the terms hereof. (b) Borrowers shall promptly notify Agent of its receipt of any proceeds of Curative Equity and any investment of Curative Equity shall be in immediately available funds. (c) Upon delivery of a certificate by Administrative Borrower to Agent as to the amount of the proceeds of such Curative Equity and that such amount complies with the provisions of this Section 9.3, then any Event of Default that occurred and is continuing from a breach of the Fixed Charge Coverage Ratio shall be deemed cured with no further action required by the Required Lenders. Prior to the date of the delivery of a certificate conforming to the requirements of this Section, any Event of Default that has occurred as a result of a breach of the Fixed Charge Coverage Ratio shall be deemed to be continuing and, as a result, the Lenders (including the Swing Lender and the Issuing Banks) shall have no obligation to make additional Loans or otherwise extend additional credit hereunder. In the event Holdings and Borrowers do not cure all financial covenant violations as provided in this Section 9.3, the existing Event of Default shall continue unless waived in writing by the Required Lenders in accordance herewith. (d) Notwithstanding anything to the contrary contained in the foregoing or this Agreement, (i) Holdings and Borrowers’ rights under this Section 9.3 may (A) be exercised not more than five (5) times during the term of this Agreement, (B) not be exercised unless in each four fiscal quarter period, there shall be a period of two fiscal quarters in which no Curative Equity is contributed pursuant hereto, (ii) the Curative Equity contributed in any month shall be no greater than the amount required to cause Borrowers to be in pro forma compliance with the Fixed Charge Coverage Ratio for the applicable period, and (iii) the Curative Equity shall be disregarded for purposes of determining Consolidated Adjusted EBITDA for any pricing, financial covenant based conditions or any baskets with respect to the covenants contained in this Agreement and there shall be no pro forma reduction in Indebtedness with the proceeds of any Curative Equity for determining compliance with the Fixed Charge Coverage Ratio or for determining any pricing, financial covenant based conditions or baskets with respect to the covenants contained in this Agreement, in each case in the quarter in which such Curative Equity is used.

Appears in 4 contracts

Samples: Credit Agreement (Concrete Pumping Holdings, Inc.), Credit Agreement (Concrete Pumping Holdings, Inc.), Credit Agreement (Concrete Pumping Holdings, Inc.)

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Curative Equity. (a) At the election of Administrative Borrower upon written notice to Agent and subject Subject to the limitations set forth in clause (df) below, Holdings and Borrowers may cure (and shall be deemed to have cured) an Event of Default arising out of a breach of any of the Fixed Charge Coverage Ratio financial covenant covenants set forth in Article clauses (a) or (b) of Section 7 (the “Specified Financial Covenants”) if they receive the cash proceeds of an investment of Curative Equity within 10 Business Days after the date that is the earlier to occur of (i) the date on which the Fixed Charge Coverage Ratio Compliance Certificate is first delivered to Agent in respect of the fiscal quarter with respect to which any such breach occurred and (ii) the date on which the Compliance Certificate is required to be tested delivered to Agent pursuant to Section 5.1 in respect of the terms hereoffiscal quarter with respect to which any such breach occurred; provided that Borrowers’ right to so cure an Event of Default shall be contingent on their timely delivery of such Compliance Certificate as required under Section 5.1. (b) Borrowers shall promptly notify Agent of its receipt of any proceeds of Curative Equity (and any shall immediately apply the same to the payment of the Obligations in the manner specified in Section 2.4(e)(vii)). (c) Any investment of Curative Equity shall be in immediately available fundsfunds and, subject to the limitations set forth in clause (f) below, shall be in an amount that is sufficient to cause Borrowers to be in compliance with all of the Specified Financial Covenants as at the last day of the most recently ended fiscal quarter, calculated for such purpose as if such amount of Curative Equity were additional EBITDA of Borrowers as at such date. (cd) Upon delivery In the Compliance Certificate delivered pursuant to Section 5.1 in respect of the fiscal quarter end on which Curative Equity is used to Borrowers shall (i) include evidence of their receipt of Curative Equity proceeds, and (ii) set forth a certificate by Administrative Borrower to Agent calculation of the financial results and balance sheet of Borrowers as to the amount of at such fiscal quarter end (including for such purposes the proceeds of such Curative Equity and (broken out separately) as deemed EBITDA as if received on such date), which shall confirm that such amount complies on a pro forma basis after taking into account the receipt of the Curative Equity proceeds, Borrowers would have been in compliance with the provisions Specified Financial Covenants as of such date. (e) Upon delivery of a Compliance Certificate pursuant to Section 5.1 conforming to the requirements of this Section 9.3Section, then any Event of Default that occurred and is continuing from as a result of a breach of any of the Fixed Charge Coverage Ratio Specified Financial Covenants shall be deemed cured with no further action required by the Required Lenders. Prior to the date of the delivery of a certificate Compliance Certificate pursuant to Section 5.1 conforming to the requirements of this Section, any Event of Default that has occurred as a result of a breach of any of the Fixed Charge Coverage Ratio Specified Financial Covenants shall be deemed to be continuing and, as a result, the Lenders (including the Swing Lender and the Issuing BanksBank) shall have no obligation to make additional Loans loans or otherwise extend additional credit hereunder. In the event Holdings and Borrowers do not cure all financial covenant violations as provided in this Section 9.3, the existing Event Event(s) of Default shall continue unless waived in writing by the Required Lenders in accordance herewith. (df) Notwithstanding anything to the contrary contained in the foregoing or this Agreementforegoing, (i) Holdings and Borrowers’ rights under this Section 9.3 may (Ai) be exercised not more than five (5) 4 times during the term of this Agreement, (Bii) not be exercised unless in each four with respect to consecutive fiscal quarters, and (iii) not be exercised if the amount of the proposed investment of Curative Equity exceeds (x) prior to the fiscal quarter periodending September 30, there shall be a period 2013, the lesser of two fiscal quarters in which no (A) 10% of EBITDA and (B) $1,000,000 and (y) after September 30, 2013, the lesser of (A) 10% of EBITDA and (B) $1,500,000. Any amount of Curative Equity that is contributed pursuant hereto, (ii) the Curative Equity contributed in any month shall be no greater than excess of the amount required sufficient to cause Borrowers to be in pro forma compliance with all of the Fixed Charge Coverage Ratio for the applicable period, and (iii) the Specified Financial Covenants as at such date shall not constitute Curative Equity. Curative Equity shall be disregarded for purposes of determining Consolidated Adjusted EBITDA for any pricing, financial covenant based conditions or any baskets with respect to the covenants contained in this Agreement and there shall be no pro forma reduction in Indebtedness with the proceeds of any Curative Equity for purposes of determining compliance with the Fixed Charge Coverage Ratio Specified Financial Covenants or for determining any pricing, financial covenant based conditions or baskets with respect to the covenants contained in this Agreement, in each case in the quarter in which such Curative Equity is used. (g) To the extent that Curative Equity is received and included in the calculation of the Specified Financial Covenants as deemed EBITDA for any fiscal quarter pursuant to this Section 9.3, such Curative Equity shall be deemed to be EBITDA for purposes of determining compliance with the Specified Financial Covenants for subsequent periods that include such fiscal quarter.

Appears in 3 contracts

Samples: Credit Agreement (Connecture Inc), Credit Agreement (Connecture Inc), Credit Agreement (Connecture Inc)

Curative Equity. (a) At the election of Administrative Borrower upon written notice to Agent and subject Subject to the limitations set forth in clause (d) belowSection 11.6(d), Holdings and Borrowers may cure (and shall will be deemed to have cured) an Event of Default arising out of a breach of any of the Fixed Charge Coverage Ratio financial covenant covenants set forth in Article 7 Section 9.2.12 (each such financial covenant, a “Specified Financial Covenant”; each such Event of Default, a “Specified Financial Covenant Default”) if they Borrowers receive the cash proceeds of an investment of Curative Equity within 10 ten (10) Business Days after the earliest date on which the Fixed Charge Coverage Ratio each applicable Specified Financial Covenant is first required to be tested for the applicable Computation Period pursuant to this Agreement (the terms hereof“Cure Period”). (b) Borrowers shall provide Administrative Agent with irrevocable written notice during the Cure Period of their intent to cure the Specified Financial Covenant(s) with Curative Equity (the “Cure Notice”) and shall promptly notify Administrative Agent of its their receipt of any proceeds of Curative Equity and any investment application of the proceeds of such Curative Equity shall be in immediately available fundsaccordance with Section 4.3 so long as any payments on the Acquisition Term Debt result in a permanent reduction in Acquisition Term Debt. (c) Upon receipt by the Borrowers of the Curative Equity (and application of the proceeds of such Curative Equity in accordance with Section 4.3) and delivery of a certificate by Borrower Representative to Administrative Borrower to Agent certifying as to the amount of the proceeds of such any Curative Equity and that such those proceeds have been applied in accordance with Section 11.6(b) in an amount complies equal to the amount which if applied to increase EBITDA for the Computation Period would result in the Borrowers being in pro forma compliance with the provisions applicable Specified Financial Covenant(s) (which certificate shall also set forth the calculation of this Section 9.3the applicable Specified Financial Covenant being cured in reasonable detail), then any Event of each applicable Specified Financial Covenant Default that occurred and is continuing from a breach of the Fixed Charge Coverage Ratio shall will be deemed cured with no further action required by the Required LendersAdministrative Agent. Prior to Before the date of the delivery of a certificate conforming to the requirements of this Sectionthat certificate, any Event of Specified Financial Covenant Default that has occurred as a result of a breach of the Fixed Charge Coverage Ratio shall and is continuing will be deemed to be continuing continuing, and, as a result, the Lenders (including the Swing Lender and the Issuing Banks) shall will have no obligation to make additional Loans loans or otherwise extend additional credit hereunderunder this Agreement. In the event Holdings and If Borrowers do not cure all financial covenant violations a Specified Financial Covenant Default as provided in this Section 9.311.6, the existing Event of then that Specified Financial Covenant Default shall will continue unless waived in writing by the Required Lenders Administrative Agent in accordance herewithwith this Agreement. (d) To the extent that proceeds of Curative Equity are received with respect to any Fiscal Quarter, those proceeds will be deemed to be EBITDA for purposes of determining compliance with the Specified Financial Covenant(s) for that Fiscal Quarter and subsequent periods that include that Fiscal Quarter. Notwithstanding anything any provision of this Agreement to the contrary contained in the foregoing or this Agreementcontrary, (i) Holdings and Borrowers’ rights under this Section 9.3 may 11.6 (A) may be exercised not no more than five (5) four times during the term of this Agreement, ; (B) may be exercised no more than twice in any period of four Fiscal Quarters; (C) may not be exercised unless in each four fiscal quarter two consecutive Fiscal Quarters and (D) may not be exercised if the amount of proceeds of the Curative Equity, together with the aggregate amount of proceeds of all prior Curative Equity, exceeds 20% of Consolidated EBITDA (calculated prior to giving effect to such Curative Equity) in any trailing twelve month period, there shall be a period of two fiscal quarters in which no Curative Equity is contributed pursuant hereto, ; (ii) the amount of proceeds of any Curative Equity contributed in any month shall may not be no greater than or less than the amount required to cause Borrowers to be in pro forma compliance with each applicable Specified Financial Covenant(s) as at the Fixed Charge Coverage Ratio for end of the applicable period, Computation Period (without giving effect to any prepayment of Debt); and (iii) the proceeds of Curative Equity shall will be disregarded for purposes of determining Consolidated Adjusted EBITDA for any pricing, financial covenant covenant-based conditions conditions, or any baskets with respect to the covenants contained in this Agreement and there shall will be no pro forma reduction in Indebtedness Debt with the proceeds of any Curative Equity for determining compliance with the Fixed Charge Coverage Ratio Specified Financial Covenants or for determining any pricing, financial covenant covenant-based conditions conditions, or baskets with respect to the covenants contained in this Agreement, in each case in the quarter Fiscal Quarter in which such that Curative Equity is usedused and each Computation Period ending on the last day of the following three Fiscal Quarters.

Appears in 3 contracts

Samples: Loan, Security and Guaranty Agreement (Quest Resource Holding Corp), Loan, Security and Guaranty Agreement (Quest Resource Holding Corp), Loan, Security and Guaranty Agreement (Quest Resource Holding Corp)

Curative Equity. (a) At the election of Administrative Borrower upon written notice to Agent and subject Subject to the limitations set forth in clause (df) below, Holdings and Borrowers may cure (and shall be deemed to have cured) an Event of Default arising out of a breach of any of the Fixed Charge Coverage Ratio financial covenant covenants set forth in Article clauses (a) or (b) of Section 7 (the “Specified Financial Covenants”) if they receive the cash proceeds of an investment of Curative Equity within 10 Business Days after the date that is the earlier to occur of (i) the date on which the Fixed Charge Coverage Ratio Compliance Certificate is first delivered to Agent in respect of the fiscal quarter with respect to which any such breach occurred and (ii) the date on which the Compliance Certificate is required to be tested delivered to Agent pursuant to Section 5.1 in respect of the terms hereoffiscal quarter with respect to which any such breach occurred; provided that Borrowers’ right to so cure an Event of Default shall be contingent on their timely delivery of such Compliance Certificate as required under Section 5.1. On or before the earlier to occur of (i) the date on which the Compliance Certificate is required to be delivered pursuant to Section 5.1 for any fiscal quarter and (ii) the date on which the Compliance Certificate is actually delivered for any fiscal quarter, the Sponsor may issue to Agent and the Lenders a written binding commitment to make such investment of Curative Equity. (b) Borrowers shall promptly notify Agent of its receipt of any proceeds of Curative Equity (and any shall immediately apply the same to the payment of the Obligations in the manner specified in Section 2.4(e)(vi)). (c) Any investment of Curative Equity shall be in immediately available fundsfunds and, subject to the limitations set forth in clause (f) below, shall be in an amount that is sufficient to cause Borrowers to be in compliance with all of the Specified Financial Covenants as at the last day of the most recently ended fiscal quarter, calculated for such purpose as if such amount of Curative Equity were additional EBITDA of Borrowers as at such date. (cd) Upon delivery In the Compliance Certificate delivered pursuant to Section 5.1 in respect of the fiscal quarter end on which Curative Equity is used to Borrowers shall (i) include evidence of their receipt of Curative Equity proceeds, and (ii) set forth a certificate by Administrative Borrower to Agent calculation of the financial results and balance sheet of Borrowers as to the amount of at such fiscal quarter end (including for such purposes the proceeds of such Curative Equity and (broken out separately) as deemed EBITDA as if received on such date), which shall confirm that such amount complies on a pro forma basis after taking into account the receipt of the Curative Equity proceeds, Borrowers would have been in compliance with the provisions Specified Financial Covenants as of such date. (e) Upon delivery of a Compliance Certificate pursuant to Section 5.1 conforming to the requirements of this Section 9.3Section, then any Event of Default that occurred and is continuing from as a result of a breach of any of the Fixed Charge Coverage Ratio Specified Financial Covenants shall be deemed cured with no further action required by the Required Lenders. Prior to the date of the delivery of a certificate Compliance Certificate pursuant to Section 5.1 conforming to the requirements of this Section, any Event of Default that has occurred as a result of a breach of any of the Fixed Charge Coverage Ratio Specified Financial Covenants shall be deemed to be continuing and, as a result, the Lenders (including the Swing Lender and the Issuing Banks) shall have no obligation to make additional Loans loans or otherwise extend additional credit hereunderhereunder and shall not accelerate the Obligations or exercise remedies with respect thereto unless and until the Curative Equity is not received within the time period required above. In the event Holdings and Borrowers do not cure all financial covenant violations as provided in this Section 9.3, the existing Event Event(s) of Default shall continue unless waived in writing by the Required Lenders in accordance herewith. (df) Notwithstanding anything to the contrary contained in the foregoing or this Agreementforegoing, (i) Holdings and Borrowers’ rights under this Section 9.3 may (Ai) be exercised not more than five (5) 4 times during the term of this Agreement, (Bii) not be exercised unless in each four with respect to consecutive fiscal quarters, and (iii) not be exercised if the amount of the proposed investment of Curative Equity exceeds (x) prior to the fiscal quarter periodending September 30, there shall be a period 2013, the lesser of two fiscal quarters in which no (A) 10% of EBITDA and (B) $1,000,000 and (y) after September 30, 2013, the lesser of (A) 10% of EBITDA and (B) $1,500,000. Any amount of Curative Equity that is contributed pursuant hereto, (ii) the Curative Equity contributed in any month shall be no greater than excess of the amount required sufficient to cause Borrowers to be in pro forma compliance with all of the Fixed Charge Coverage Ratio for the applicable period, and (iii) the Specified Financial Covenants as at such date shall not constitute Curative Equity. Curative Equity shall be disregarded for purposes of determining Consolidated Adjusted EBITDA for any pricing, financial covenant based conditions or any baskets with respect to the covenants contained in this Agreement and there shall be no pro forma reduction in Indebtedness with the proceeds of any Curative Equity for purposes of determining compliance with the Fixed Charge Coverage Ratio Specified Financial Covenants or for determining any pricing, financial covenant based conditions or baskets with respect to the covenants contained in this Agreement, in each case in the quarter in which such Curative Equity is usedused and the subsequent three (3) fiscal quarters. (g) To the extent that Curative Equity is received and included in the calculation of the Specified Financial Covenants as deemed EBITDA for any fiscal quarter pursuant to this Section 9.3, such Curative Equity shall be deemed to be EBITDA for purposes of determining compliance with the Specified Financial Covenants for subsequent periods that include such fiscal quarter.

Appears in 3 contracts

Samples: Second Lien Term Loan Agreement (Connecture Inc), Second Lien Term Loan Agreement (Connecture Inc), Second Lien Term Loan Agreement (Connecture Inc)

Curative Equity. (a) At the election of Administrative Borrower upon written notice to Agent and subject Subject to the limitations set forth in clause (d) below, Holdings and Borrowers may any holder of Equity Interests of any Borrower or any direct or indirect parent of the Borrower Agent shall have the right to cure (and shall be deemed to have cured) an Event of Default arising out of a breach of any of the Fixed Charge Coverage Ratio financial covenant covenants set forth in Article 7 Sections 10.3.1 and 10.3.2 (the “Specified Financial Covenants”) if they Borrowers receive the cash proceeds of an investment of Curative Equity within 10 ten (10) Business Days after the date on which the Fixed Charge Coverage Ratio is first financial statements referred to in Sections 10.1.2(a) and (c) are required to be tested pursuant to the terms hereofdelivered in respect of such fiscal period for which such financial covenant is being measured in accordance with Section 10.1.2. (b) Borrowers Borrower Agent shall promptly notify Agent of its receipt of any proceeds of Curative Equity (and any investment shall immediately apply the same to the payment of Curative Equity shall be in immediately available fundsfirst to Term Loan One and Term Loan Two (on a pro rata basis to all remaining installments based upon the respective amounts thereof), second to the Capital Expenditure Loans (on a pro rata basis to all remaining installments based upon the respective amounts thereof), third to the Revolver Loans (without reduction of the Revolver Commitment), fourth to Cash Collateralize outstanding Letters of Credit, and finally to other Obligations). (c) Upon delivery of a certificate by Administrative Borrower Agent to Agent as to the amount of the proceeds of such Curative Equity and that such amount complies has been applied to the Obligations in accordance with the provisions of this Section 9.3clause (b) above, then such Curative Equity shall be treated on a dollar-for-dollar basis as EBITDA or Net Worth, as applicable, of the Borrowers for such Fiscal Quarter any Event of Default that has occurred and is continuing from a breach of any of the Fixed Charge Coverage Ratio shall be deemed cured Specified Financial Covenants and for the three subsequent Fiscal Quarters with no further action required by the Required Lenders. Prior to the date of the delivery of a certificate conforming to the requirements of this Section, any Event of Default that has occurred as a result of a breach of any of the Fixed Charge Coverage Ratio Specified Financial Covenants shall be deemed to be continuing and, as a result, the Lenders (including the Swing Lender and the Issuing Banks) shall have no obligation to make additional Loans loans or otherwise extend additional credit hereunder. In the event Holdings and Borrowers do Borrower Agent does not cure all financial covenant violations as provided in this Section 9.310.3.3, the existing Event Event(s) of Default shall continue unless waived in writing by the Required Lenders in accordance herewith. (d) Notwithstanding anything to the contrary contained in the foregoing or this Agreement, (i) Holdings and Borrowers’ rights under this Section 9.3 10.3.3 may (A) be exercised not more than five (5) times during the term of this Agreement, ; (Bii) not be exercised unless in each trailing four fiscal quarter period, Fiscal Quarter Period there shall be a period at least two Fiscal Quarters in respect of two fiscal quarters in which no Curative Equity is contributed pursuant heretomade, (iiiii) the amount of any Curative Equity contributed in any month shall be no greater than not exceed the amount required to cause Borrowers to be in pro forma compliance with such financial covenants and the Fixed Charge Coverage Ratio for the applicable period, and (iii) the amount of all such Curative Equity shall not exceed $30,000,000 in the aggregate during the term of this Agreement, (iv) any Curative Equity will be disregarded for purposes of determining Consolidated Adjusted the availability of any baskets, pricing or other items governed by reference to EBITDA for any pricing, financial covenant based conditions or any baskets with respect to the covenants contained in this Agreement the loan documentation, and there shall be (v) no pro forma reduction in Indebtedness indebtedness with the proceeds of any Curative Equity shall be considered for determining purposes of recalculating compliance with the Fixed Charge Coverage Ratio or financial covenants for determining any pricing, financial covenant based conditions or baskets with respect to the covenants contained in this Agreement, in each case in the initial quarter in which during such Curative Equity is usedperiod.

Appears in 2 contracts

Samples: First Lien Loan and Security Agreement (Duckhorn Portfolio, Inc.), First Lien Loan and Security Agreement (Duckhorn Portfolio, Inc.)

Curative Equity. (a) At the election of Administrative Borrower upon written notice to Agent and subject Subject to the limitations set forth in clause (df) below, Holdings and Borrowers prior to the consummation of a Qualifying Initial Public Offering, Borrower may cure (and shall be deemed to have cured) an Event of Default arising out of a breach of any of the Fixed Charge Coverage Ratio financial covenant covenants set forth in Article clauses (a), (c) or (d) of Section 7 (the “Specified Financial Covenants”) if they receive it receives the cash proceeds of an investment of Curative Equity within 10 Business Days after the date that is the earlier to occur of (i) the date on which the Fixed Charge Coverage Ratio Compliance Certificate is first delivered to Agent in respect of the quarter with respect to which any such breach occurred and (ii) the date on which the Compliance Certificate is required to be tested delivered to Agent pursuant to Section 5.1 in respect of the terms hereofquarter with respect to which any such breach occurred; provided that Borrower’s right to so cure an Event of Default shall be contingent on its timely delivery of such Compliance Certificate as required under Section 5.1. (b) Borrowers Borrower shall promptly notify Agent of its receipt of any proceeds of Curative Equity (and any shall immediately apply the same to the payment of the Obligations in the manner specified in Section 2.4(e)(vii)). (c) Any investment of Curative Equity shall be in immediately available fundsfunds and, subject to the limitations set forth in clause (f) below, shall be in an amount that is sufficient to cause Borrower to be in compliance with all of the Specified Financial Covenants as at the last day of the most recently ended fiscal quarter, calculated for such purpose as if such amount of Curative Equity were additional EBITDA of Borrower as at such date. (cd) Upon delivery In the Compliance Certificate delivered pursuant to Section 5.1 in respect of the quarter end on which Curative Equity is used or in a certificate by Administrative supplemental subsequent Compliance Certificate delivered after the contribution of Curative Equity, Borrower to Agent shall (i) include evidence of its receipt of Curative Equity proceeds, and (ii) set forth a calculation of the financial results and balance sheet of Borrower as to the amount of at such month end (including for such purposes the proceeds of such Curative Equity and (broken out separately) as deemed EBITDA as if received on such date), which shall confirm that such amount complies on a pro forma basis after taking into account the receipt of the Curative Equity proceeds, Borrower would have been in compliance with the provisions Specified Financial Covenants as of such date. (e) Upon delivery of a Compliance Certificate pursuant to Section 5.1 or such supplemental subsequent Compliance Certificate conforming to the requirements of this Section 9.3Section, then any Event of Default that occurred and is continuing from as a result of a breach of any of the Fixed Charge Coverage Ratio Specified Financial Covenants shall be deemed cured with no further action required by the Required LendersBorrower, Lenders or Agent. Prior to the date of the delivery of a certificate Compliance Certificate pursuant to Section 5.1 or such supplemental subsequent Compliance Certificate conforming to the requirements of this Section, any Event of Default that has occurred as a result of a breach of any of the Fixed Charge Coverage Ratio Specified Financial Covenants shall be deemed to be continuing and, as a result, the Lenders (including the Swing Lender and the Issuing BanksBank) shall have no obligation to make additional Loans loans or otherwise extend additional credit hereunder (provided, however, that Agent shall not, notwithstanding the existence of such Event of Default, be permitted to accelerate the Loans, terminate the Commitments, or exercise remedies against the Loan Parties, or the Collateral for a breach of any of the Specified Financial Covenants for so long as Borrower has the ability to exercise its cure rights hereunder). In the event Holdings and Borrowers do Borrower does not cure all financial covenant violations as provided in this Section 9.3, the existing Event Event(s) of Default shall continue unless waived in writing by the Required Lenders in accordance herewith. (df) Notwithstanding anything to the contrary contained in the foregoing or this Agreementforegoing, (i) Holdings and Borrowers’ Borrower’s rights under this Section 9.3 may (Ai) be exercised not more than five (5) 3 times during the term of this Agreement, (Bii) not be exercised unless in each four with respect to consecutive fiscal quarter periodquarters, there shall (iii) not be a period exercised if the amount of two fiscal quarters in which no the proposed investment of Curative Equity, together with the amount of all prior investments of Curative Equity, exceeds $3,000,000, and (iv) not be exercised if the amount of the proposed investment of Curative Equity is contributed pursuant heretoexceeds $2,000,000 for the first exercise thereof, (ii) the or $1,000,000 for any subsequent exercise. Any amount of Curative Equity contributed that is in any month shall be no greater than excess of the amount required sufficient to cause Borrowers Borrower to be in pro forma compliance with all of the Fixed Charge Coverage Ratio for the applicable period, and (iii) the Specified Financial Covenants as at such date shall not constitute Curative Equity. Curative Equity shall be disregarded for purposes of determining Consolidated Adjusted EBITDA for any pricing, financial covenant based conditions or any baskets with respect to the covenants contained in this Agreement and there shall be no pro forma reduction in Indebtedness with the proceeds of any Curative Equity for purposes of determining compliance with the Fixed Charge Coverage Ratio Specified Financial Covenants or for determining any pricing, financial covenant based conditions or baskets with respect to the covenants contained in this Agreement, in each case in the month or quarter (as the case may be) in which such Curative Equity is used. (g) To the extent that Curative Equity is received and included in the calculation of the Specified Financial Covenants as deemed EBITDA for any quarter pursuant to this Section 9.3, such Curative Equity shall be deemed to be EBITDA for purposes of determining compliance with the Specified Financial Covenants for subsequent periods that include such quarter.

Appears in 2 contracts

Samples: Credit Agreement (Appfolio Inc), Credit Agreement (Appfolio Inc)

Curative Equity. (a) At the election of Administrative Borrower upon written notice to Agent and subject Subject to the limitations set forth in clause (d) below, Holdings and Borrowers may cure (and shall be deemed to have cured) an Event of Default arising out of a breach of the Fixed Charge Coverage Ratio financial covenant set forth in Article Section 7 (the “Financial Covenant”) if they receive the cash proceeds of an investment of Curative Equity within on or before the date that is ten 10 Business Days after the date on which the Fixed Charge Coverage Ratio Financial Covenant is first required to be tested pursuant to the terms hereof. (b) Borrowers shall promptly notify Agent of its receipt of any proceeds of Curative Equity and shall promptly (but, in any investment event, within one (1) Business Day) apply the same to the payment of Curative Equity shall be the Obligations in immediately available fundsthe manner specified in Section 2.4(e)(vi). (c) Upon delivery of a certificate by Administrative Borrower Borrowers to Agent as to the amount of the proceeds of such Curative Equity and that such amount complies (i) has been applied in accordance with clause (b) above and (ii) is in an amount equal to the provisions of this Section 9.3amount required by clause (d)(ii) below, then any Event of Default that occurred and is continuing from a breach of the Fixed Charge Coverage Ratio Financial Covenant shall be deemed cured with no further action required by the Required Lenders. Prior to the date of the delivery of a certificate conforming to the requirements of this Sectionsection, any Event of Default that has occurred as a result of a the breach of the Fixed Charge Coverage Ratio Financial Covenant shall be deemed to be continuing and, as a result, the Lenders (including the Swing Lender and the Issuing BanksBank) shall have no obligation to make additional Loans loans or otherwise extend additional credit hereunder. In the event Holdings and Borrowers do Borrower does not cure all financial covenant violations the Financial Covenant violation as provided in this Section 9.3, the existing Event of Default shall continue unless waived in writing by the Required Lenders in accordance herewith. (d) Notwithstanding anything to the contrary contained in the foregoing or this Agreement, (i) Holdings and Borrowers’ rights under this Section 9.3 may (A) be exercised not more than five (5) 3 times during the term of this Agreement, (B) be exercised not more than 2 times in any fiscal year and (C) not be exercised unless in each four twice within any six fiscal quarter month period, there shall be a period of two fiscal quarters in which no Curative Equity is contributed pursuant hereto, (ii) the Curative Equity contributed in with respect to any fiscal month shall be no greater than the amount required to cause Borrowers to be in pro forma compliance with the Fixed Charge Coverage Ratio for Financial Covenant as at the applicable periodend of such fiscal month, and (iii) the Curative Equity shall be disregarded for purposes of determining Consolidated Adjusted EBITDA for any pricing, financial covenant covenant-based conditions or any baskets with respect to the covenants contained in this Agreement and there shall be no pro forma reduction in Indebtedness with the proceeds of any Curative Equity for determining compliance with the Fixed Charge Coverage Ratio Financial Covenant or for determining any pricing, financial covenant covenant-based conditions or any baskets with respect to the covenants contained in this Agreement, in each case in the quarter month in which such Curative Equity is used.

Appears in 2 contracts

Samples: Credit Agreement (Tessco Technologies Inc), Credit Agreement (Tessco Technologies Inc)

Curative Equity. (a) At the election of Administrative Borrower upon written notice to Agent and subject Subject to the limitations set forth in clause (d) belowSection 13.4(d), Holdings and Borrowers Borrower may cure (and shall will be deemed to have cured) an Event of Default arising out of a breach of any of the Fixed Charge Coverage Ratio financial covenant covenants set forth in Article 7 Sections 11.12.2 and 11.12.3 (each such financial covenant, a “Specified Financial Covenant”; each such Event of Default, a “Specified Financial Covenant Default”) if they receive Borrower receives the cash proceeds of an investment of Curative Equity within 10 Business Days after the earliest date on which the Fixed Charge Coverage Ratio Compliance Certificate applicable to such Specified Financial Covenant is first required to be tested delivered for the applicable Computation Period pursuant to the terms hereofthis Agreement. (b) Borrowers Borrower shall promptly notify Administrative Agent of its receipt of any proceeds of Curative Equity and any investment shall make a prepayment of Curative Equity shall be the Term Loans in immediately available fundsaccordance with Sections 6.2 and 6.3. (c) Upon delivery of a certificate by Administrative Borrower to Administrative Agent certifying as to the amount of the proceeds of such any Curative Equity and that such amount complies those proceeds have been applied in accordance with the provisions of this Section 9.313.4(b), then any Event of each applicable Specified Financial Covenant Default that occurred and is continuing from a breach of the Fixed Charge Coverage Ratio shall will be deemed cured with no further action required by the Required Lenders. Prior to Before the date of the delivery of a certificate conforming to the requirements of this Sectionthat certificate, any Event of Specified Financial Covenant Default that has occurred as a result of a breach of the Fixed Charge Coverage Ratio shall and is continuing will be deemed to be continuing continuing, and, as a result, the Lenders (including the Swing Lender and the Issuing Banks) shall will have no obligation to make additional Loans loans or otherwise extend additional credit hereunderunder this Agreement. In the event Holdings and Borrowers do If Borrower does not cure all financial covenant violations a Specified Financial Covenant Default as provided in this Section 9.313.4, the existing Event of then that Specified Financial Covenant Default shall will continue unless waived in writing by the Required Lenders in accordance herewithwith this Agreement. (d) To the extent that proceeds of Curative Equity are received with respect to any Fiscal Quarter for the purpose of curing a breach of the financial covenant set forth in Section 11.12.2, those proceeds will be deemed to be EBITDA for purposes of determining compliance with the Specified Financial Covenants for that Fiscal Quarter and subsequent Computation Periods that include that Fiscal Quarter. Notwithstanding anything any provision of this Agreement to the contrary contained in the foregoing or this Agreementcontrary, (i) Holdings and Borrowers’ Borrower’s rights under this Section 9.3 may 13.4 (A) may be exercised not no more than five three (53) times during the term of this Agreement, ; and (B) not may be exercised unless no more than twice in each four fiscal quarter period, there shall be a any period of two fiscal quarters in which no Curative Equity is contributed pursuant hereto, four Fiscal Quarters; (ii) the amount of proceeds of any Curative Equity contributed in any month shall (x) may not be no less than $2,500,000 and (y) except as otherwise required pursuant to the foregoing clause (x) may not be greater than the amount required to cause Borrowers Borrower to be in pro forma compliance with each applicable Specified Financial Covenant as at the Fixed Charge Coverage Ratio for end of the applicable period, Computation Period; and (iii) the proceeds of Curative Equity shall will be disregarded for purposes of determining Consolidated Adjusted EBITDA for any pricing, financial covenant covenant-based conditions conditions, or any baskets with respect to the covenants contained in this Agreement and there shall will be no pro forma reduction in Indebtedness Debt with the proceeds of any Curative Equity for determining compliance with the Fixed Charge Coverage Ratio Specified Financial Covenants or for determining any pricing, financial covenant covenant-based conditions conditions, or baskets with respect to the covenants contained in this Agreement, in each case in such Fiscal Quarter and the quarter in which such Curative Equity is usednext three Fiscal Quarters thereafter.

Appears in 2 contracts

Samples: Credit Agreement (Moneylion Inc.), Credit Agreement (Moneylion Inc.)

Curative Equity. (a) At the election of Administrative Borrower upon written notice to Agent and subject Subject to the limitations set forth in clause (df) below, Holdings and Borrowers Borrower may cure (and shall be deemed to have cured) an Event of Default arising out of a breach of any of the Fixed Charge Coverage Ratio financial covenant covenants set forth in Article 7 clause (a) or (b) of Section 6.08 (the “Specified Financial Covenants”) if they receive Borrower receives the cash proceeds of an investment of Curative Equity from Permitted Holders within 10 Business Days after the date that is the earlier to occur of (i) the date on which the Fixed Charge Coverage Ratio Compliance Certificate is first delivered to Administrative Agent in respect of the fiscal quarter with respect to which any such breach occurred, and (ii) the date on which the Compliance Certificate is required to be tested delivered to Administrative Agent pursuant to Section 5.01(d) in respect of the terms hereoffiscal quarter with respect to which any such breach occurred; provided, that Borrower’s right to so cure an Event of Default shall be contingent on their timely delivery of such Compliance Certificate as required under Section 5.01(d). Upon the receipt of Curative Equity pursuant to this Section 8.02 and inclusion of such Curative Equity in the calculation of the Specified Financial Covenants as deemed Consolidated EBITDA for any fiscal quarter pursuant to this Section 8.02, then no Event of Default solely with respect to determining compliance with the Specified Financial Covenants for such fiscal quarter shall be deemed to have occurred. For the avoidance of doubt, no Event of Default arising out of a breach of any of the financial covenants set forth in clause (c) of Section 6.08 may be cured pursuant to this Section 8.02. (b) Borrowers Borrower shall promptly notify Administrative Agent of its receipt of any proceeds of Curative Equity (and any shall immediately apply the same to the payment of the Obligations in the manner specified in Section 2.13(f)). (c) Any investment of Curative Equity shall be in immediately available fundsfunds and, subject to the limitations set forth in clause (f) below, shall be in an amount equal to the amount required to cause Borrower to be in compliance with all of the Specified Financial Covenants as at the last day of the most recently ended fiscal quarter, calculated for such purpose as if such amount of Curative Equity were additional Consolidated EBITDA of Borrower (and there shall be no pro forma reduction in Indebtedness with the proceeds of any Curative Equity for determining compliance with the Leverage Ratio financial covenant) as at such date. (cd) Upon delivery Contemporaneously with the receipt and application of Curative Equity, Borrower shall tender an updated Compliance Certificate that shall (i) include evidence of its receipt of Curative Equity proceeds and (ii) set forth a certificate by Administrative calculation of the financial results and balance sheet of Borrower to Agent as to the amount of at such fiscal quarter end (including for such purposes the proceeds of such Curative Equity and (broken out separately) as deemed Consolidated EBITDA as if received on such date), which shall confirm that such amount complies on a pro forma basis after taking into account the receipt of the Curative Equity proceeds, Borrower would have been in compliance with the provisions Specified Financial Covenants as of such date. (e) Upon delivery of an updated Compliance Certificate conforming to the requirements of this Section 9.38.02, then any Event of Default that occurred and is continuing from as a result of a breach of any of the Fixed Charge Coverage Ratio Specified Financial Covenants shall be deemed cured with no further action required by the Required Lenders. Prior to the date of the delivery of a certificate an updated Compliance Certificate conforming to the requirements of this Section, any Event of Default that has occurred as a result of a breach of any of the Fixed Charge Coverage Ratio Specified Financial Covenants shall be deemed to be continuing and, as a result, the Lenders (including the Swing Lender and the Issuing Banks) shall have no obligation to make additional Loans or otherwise extend additional credit hereundercontinuing. In the event Holdings and Borrowers do Borrower does not cure all financial covenant violations as provided in this Section 9.38.02, the existing Event Event(s) of Default shall continue unless waived in writing by the Required Lenders in accordance herewith. (df) Notwithstanding anything to the contrary contained in the foregoing or this Agreementforegoing, (i) Holdings and Borrowers’ Borrower’s rights under this Section 9.3 8.02 may (Ai) be exercised not more than five (5) four times during the term of this Agreement, Agreement and (Bii) not be exercised unless in each more than twice during any four fiscal consecutive quarter period, there shall be a period . Any amount of two fiscal quarters in which no Curative Equity that is contributed pursuant hereto, (ii) the Curative Equity contributed in any month shall be no greater than excess of the amount required sufficient to cause Borrowers Borrower to be in pro forma compliance with all of the Fixed Charge Coverage Ratio for the applicable period, and (iii) the Specified Financial Covenants as at such date shall not constitute Curative Equity. Curative Equity shall be disregarded for purposes of determining Consolidated Adjusted EBITDA for any pricing, financial covenant covenant-based conditions condition, or any baskets with respect to the covenants contained in this Agreement Agreement, and there shall be no pro forma or other reduction in Indebtedness (via cash netting or otherwise) with the proceeds of any Curative Equity for purposes of determining compliance with the Fixed Charge Coverage Ratio Specified Financial Covenants or for determining any pricing, financial covenant covenant-based conditions conditions, or baskets with respect to the covenants contained in this Agreement, in each case in the quarter in which such Curative Equity is used. (g) To the extent that Curative Equity is received and included in the calculation of the Specified Financial Covenants as deemed Consolidated EBITDA for any fiscal quarter pursuant to this Section 8.02, such Curative Equity shall be deemed to be Consolidated EBITDA for purposes of determining compliance with the Specified Financial Covenants for subsequent periods that include such fiscal quarter.

Appears in 2 contracts

Samples: Credit Agreement (Liberty Tax, Inc.), Credit Agreement (Liberty Tax, Inc.)

Curative Equity. (a) At the election of Administrative Borrower upon written notice to Agent and subject Subject to the limitations set forth in clause clauses (d) and (e) below, Holdings and Borrowers may cure (and shall be deemed to have cured) an Event of Default arising out of a breach of the Fixed Charge Coverage Ratio financial covenant set forth in Article Section 7 (the "Specified Financial Covenant") if they receive the cash proceeds of an investment of Curative Equity within 10 Business Days on or before the date that is ten days after the date that is the earlier to occur of (i) the date on which the Fixed Charge Coverage Ratio Compliance Certificate is first delivered to Agent in respect of the fiscal month with respect to which any such breach occurred (the "Specified Fiscal Month"), and (ii) the date on which the Compliance Certificate is required to be tested delivered to Agent pursuant to Section 5.1 in respect of the terms hereofSpecified Fiscal Month (such earlier date, the "Financial Statement Delivery Date"); provided, that Borrowers' right to so cure an Event of Default shall be contingent on their timely delivery of such Compliance Certificate and financial statements for the Specified Fiscal Month as required under Section 5.1. (b) In connection with a cure of an Event of Default under this Section 9.3, on or before the Financial Statement Delivery Date for the Specified Fiscal Month, Borrowers shall deliver to Agent a certification of an Authorized Person which contains, or Borrowers shall include in the Compliance Certificate for the Specified Fiscal Month: (i) an indication that Borrowers will receive proceeds of Curative Equity for the Specified Fiscal Month and a statement setting forth the anticipated amount of such proceeds, (ii) a calculation of the financial results or prospective financial results of Borrowers for the Specified Fiscal Month (including for such purposes the proceeds of the Curative Equity (broken out separately) as deemed EBITDA as if received on such date), which shall confirm that on a pro forma basis after taking into account the receipt of the Curative Equity proceeds, Borrowers would have been or will be in compliance with the Specified Financial Covenant for the Specified Financial Month, (iii) a certification that the full amount of the cash proceeds of the equity investment in Qualified Equity Interest made by Sponsor or other then existing shareholders of Parent in connection with such cure of the Event of Default shall be used to prepay the Obligations in accordance with Section 2.4(e)(ii), regardless of whether the amount of such cash proceeds is in excess of the amount that is sufficient to cause Borrowers to be in compliance with the Specified Financial Covenant for the Specified Fiscal Month, and (iv) a certification that any amount of the cash proceeds of the equity investment in excess of the amount that is sufficient to cause Borrowers to be in compliance with the Specified Financial Covenant for the Specified Fiscal Month shall not be included in the calculation of EBITDA for any fiscal month. (c) Borrowers shall promptly notify Agent of its receipt of any proceeds of Curative Equity (and any shall immediately apply the full amount of the cash proceeds of the equity investment made by the than existing shareholders of Parent to the payment of the Obligations in the manner specified in Section 2.4(e)(ii)). (d) Any investment of Curative Equity shall be in immediately available fundsfunds and shall be in an amount that is sufficient to but not greater than the amount necessary to cause Borrowers to be in compliance with the Specified Financial Covenant for the Specified Fiscal Month, calculated for such purpose as if such amount of Curative Equity were additional EBITDA of Borrowers, on a Consolidated basis, as at such date. (ce) Upon delivery of a certificate by Administrative Borrower to Agent as Notwithstanding anything to the amount contrary contained herein, regardless of whether an investment of Curative Equity is made prior to the applicable Financial Statement Delivery Date, Borrowers' rights under this Section 9.3 may (i) be exercised not more than 5 times during the term of this Agreement, and (ii) not be exercised more than 3 times during any 12 consecutive fiscal months. (f) If Borrowers have (i) delivered a certification or a Compliance Certificate conforming to the requirements of Section 9.3(b), and (ii) received proceeds of such an investment of Curative Equity in immediately available funds on or before the deadline set forth in Section 9.3(a) and in an amount that such amount complies is sufficient to cause Borrowers to be in compliance with the provisions of this Section 9.3Specified Financial Covenant for the Specified Fiscal Month, then any Event of Default that occurs or has occurred and is continuing from as a result of a breach of the Fixed Charge Coverage Ratio Specified Financial Covenant for the Specified Fiscal Month shall be deemed cured with no further action required by the Required Lenders. Prior to the date satisfaction of the delivery of a certificate conforming to the foregoing requirements of this SectionSection 9.3(f), any Event of Default that occurs or has occurred as a result of a breach of the Fixed Charge Coverage Ratio Specified Financial Covenant shall be deemed to be continuing and, as a result, the Lenders (including the Swing Lender and the Issuing BanksBank) shall have no obligation to make additional Loans loans or otherwise extend additional credit hereunder. In the event Holdings and Borrowers do not cure all financial covenant violations as provided in this Section 9.3, the existing Event Event(s) of Default shall continue unless waived in writing by the Required Lenders in accordance herewith. (d) Notwithstanding anything to the contrary contained in the foregoing or this Agreement, (i) Holdings and Borrowers’ rights under this Section 9.3 may (A) be exercised not more than five (5) times during the term of this Agreement, (B) not be exercised unless in each four fiscal quarter period, there shall be a period of two fiscal quarters in which no Curative Equity is contributed pursuant hereto, (ii) the Curative Equity contributed in any month shall be no greater than the amount required to cause Borrowers to be in pro forma compliance with the Fixed Charge Coverage Ratio for the applicable period, and (iii) the Curative Equity shall be disregarded for purposes of determining Consolidated Adjusted EBITDA for any pricing, financial covenant based conditions or any baskets with respect to the covenants contained in this Agreement and there shall be no pro forma reduction in Indebtedness with the proceeds of any Curative Equity for determining compliance with the Fixed Charge Coverage Ratio or for determining any pricing, financial covenant based conditions or baskets with respect to the covenants contained in this Agreement, in each case in the quarter in which such Curative Equity is used.

Appears in 2 contracts

Samples: Credit Agreement (Liberty Energy Inc.), Credit Agreement (Liberty Oilfield Services Inc.)

Curative Equity. (a) At the election of Administrative Borrower upon written notice to Agent and subject Subject to the limitations set forth in clause (df) below, Holdings and Borrowers Lead Borrower may cure (and shall be deemed to have cured) an Event of Default arising out of a breach of the Fixed Charge Coverage Ratio financial covenant set forth in Article 7 Section 6.08(a) or Section 6.08(b) (each, a “Specified Financial Covenant”) if they receive Lead Borrower receives the cash proceeds of an investment of Curative Equity within 10 Business Days after the date on which such breach occurred. Upon the Fixed Charge Coverage Ratio is first required to be tested receipt of Curative Equity pursuant to this Section 8.02 and inclusion of such Curative Equity in the terms hereofcalculation of Consolidated EBITDA pursuant to this Section 8.02, then no Event of Default solely with respect to determining compliance with the Specified Financial Covenant shall be deemed to have occurred. (b) Borrowers Lead Borrower shall promptly notify each Agent of its receipt of any proceeds of Curative Equity and any Equity. (c) Any investment of Curative Equity shall be in immediately available fundsfunds and, subject to the limitations set forth in clause (f) below, shall be in an amount equal to the amount required to cause Borrowers to be in compliance the Specified Financial Covenant as at such date. (cd) Upon delivery Contemporaneously with the receipt and application of Curative Equity, Lead Borrower shall tender an updated Compliance Certificate that shall (i) include evidence of its receipt of Curative Equity proceeds and (ii) set forth a certificate by Administrative Borrower to Agent as to calculation of the amount of Consolidated EBITDA (including for such purposes the proceeds of such Curative Equity and (broken out separately)), which shall confirm that such amount complies on a pro forma basis after taking into account the receipt of the Curative Equity proceeds, Borrowers would have been in compliance with the provisions Specified Financial Covenants as of such date. (e) Upon delivery of an updated Compliance Certificate conforming to the requirements of this Section 9.38.02, then any Event of Default that occurred and is continuing from as a result of a breach of the Fixed Charge Coverage Ratio any of any Specified Financial Covenant shall be deemed cured with no further action required by the Required LendersLenders or any other Person. Prior to the date of the delivery of a certificate an updated Compliance Certificate conforming to the requirements of this Section, any Event of Default that has occurred as a result of a breach of the Fixed Charge Coverage Ratio Specified Financial Covenant shall be deemed to be continuing and, as a result, the Lenders (including the Swing Lender and the Issuing Banks) shall have no obligation to make additional Loans or otherwise extend additional credit hereundercontinuing. In the event Holdings and Borrowers do Lead Borrower does not cure all financial covenant violations the Specified Financial Covenants as provided in this Section 9.38.02, the existing Event Event(s) of Default shall continue unless waived in writing by the Required Lenders in accordance herewith. (df) Notwithstanding anything to the contrary contained in the foregoing or this Agreementforegoing, (i) Holdings and Borrowers’ Lead Borrower’s rights under this Section 9.3 8.02 may (Ai) be exercised not more than five (5) four times during the term of this Agreement, (Bii) not be exercised unless in each more than twice during any four fiscal quarter consecutive Fiscal Quarter period, there (iii) may not be exercised in consecutive Fiscal Quarters and (iv) may not be exercised more than once during any Fiscal Quarter. All proceeds of Curative Equity shall be held in a period deposit account subject to a Control Agreement until the last day of two fiscal quarters in the Fiscal Quarter during which no such Curative Equity is contributed pursuant heretowas received (any such Fiscal Quarter, (ii) the a “Cure Quarter”). Any amount of Curative Equity contributed that is in any month shall be no greater than excess of the amount required sufficient to cause Borrowers Borrower to be in pro forma compliance with the Fixed Charge Coverage Ratio for the applicable period, and (iii) the Specified Financial Covenant as at such date shall not constitute Curative Equity. Curative Equity shall be disregarded for purposes of determining Consolidated Adjusted EBITDA for any pricing, financial covenant covenant-based conditions or condition, any baskets with respect to the covenants contained in this Agreement Agreement, or for any other purposes under this Agreement, and there shall be no pro forma or other reduction in Indebtedness (via cash netting or otherwise) with the proceeds of any Curative Equity for purposes of determining compliance with the Fixed Charge Coverage Ratio Specified Financial Covenant or for determining any pricingfinancial covenant-based conditions, financial covenant based conditions or baskets with respect to the covenants contained in this Agreement, in each case in the quarter in which such Curative Equity is used.

Appears in 2 contracts

Samples: Credit Agreement (B. Riley Financial, Inc.), Credit Agreement (Franchise Group, Inc.)

Curative Equity. (a) At the election of Administrative Borrower upon written notice to Agent and subject Subject to the limitations set forth in clause clauses (d) and (e) below, Holdings and Borrowers may cure (and shall be deemed to have cured) an Event of Default arising out of a breach of the Fixed Charge Coverage Ratio financial covenant set forth in Article of Section 7 (the “Specified Financial Covenant”) if they receive the cash proceeds of an investment of Curative Equity within on or before the date that is ten Business Days after the date that is the earlier to occur of (i) the date on which the Compliance Certificate is delivered to Agent in respect of the fiscal month with respect to which any such breach occurred (the “Specified Financial Month”), and (ii) the date on which the Compliance Certificate is required to be delivered to Agent pursuant to Section 5.1 in respect of the Specified Financial Month (such earlier date, the “Financial Statement Delivery Date”); provided, that (A) in the case of the start of a Covenant Testing Period that reverts to a Compliance Certificate previously delivered in respect of a prior month, such cash proceeds may be received on or before the date that is ten Business Days after the start of such Covenant Testing Period, and (B) Borrowers’ right to so cure an Event of Default shall be contingent on their timely delivery of such Compliance Certificate and financial statements for the Specified Fiscal Month as required under Section 5.1. (b) In connection with a cure of an Event of Default under this Section 9.3, on or before the Financial Statement Delivery Date for the Specified Financial Month or, in the case of the start of a Covenant Testing Period that reverts to a Compliance Certificate previously delivered in respect of a prior month, on or before the date that is 10 Business Days after the date start of such Covenant Testing Period, Borrowers shall deliver to Agent a certification of an Authorized Person which contains, or Borrowers shall include in the Compliance Certificate for the Specified Financial Month: (i) an indication that Borrowers will receive proceeds of Curative Equity for the Specified Fiscal Month and a statement setting forth the anticipated amount of such proceeds, (ii) a calculation of the financial results or prospective financial results of Borrowers for the Specified Fiscal Month (including for such purposes the proceeds of the Curative Equity (broken out separately) as deemed EBITDA as if received on such date), which shall confirm that on a pro forma basis after taking into account the Fixed Charge Coverage Ratio receipt of the Curative Equity proceeds, Borrowers would have been or will be in compliance with the Specified Financial Covenant for the Specified Financial Month, (iii) a certification that the full amount of the cash proceeds of the equity investment made by Sponsor or other then existing shareholders of Parent in connection with such cure of the Event of Default shall be used to prepay the Obligations in accordance with Section 2.4(f), regardless of whether the amount of such cash proceeds is first required in excess of the amount that is sufficient to cause Borrowers to be tested pursuant in compliance with the Specified Financial Covenant for the Specified Fiscal Month, and (iv) a certification that any amount of the cash proceeds of the equity investment in excess of the amount that is sufficient to cause Borrowers to be in compliance with the terms hereofSpecified Financial Covenant for the Specified Fiscal Month shall not be included in the calculation of EBITDA for any fiscal month. (bc) Borrowers shall promptly notify Agent of its receipt of any proceeds of Curative Equity (and any shall immediately apply the full amount of the cash proceeds of the equity investment made by Sponsor other than existing shareholders of Parent to the payment of the Obligations. (d) Any investment of Curative Equity shall be in immediately available fundsfunds and shall be in an amount that is sufficient to cause Borrowers to be in compliance with the Specified Financial Covenant for the Specified Fiscal Month, calculated for such purpose as if such amount of Curative Equity were additional EBITDA of Parent as at such date. (c) Upon delivery of a certificate by Administrative Borrower to Agent as to the amount of the proceeds of such Curative Equity and that such amount complies with the provisions of this Section 9.3, then any Event of Default that occurred and is continuing from a breach of the Fixed Charge Coverage Ratio shall be deemed cured with no further action required by the Required Lenders. Prior to the date of the delivery of a certificate conforming to the requirements of this Section, any Event of Default that has occurred as a result of a breach of the Fixed Charge Coverage Ratio shall be deemed to be continuing and, as a result, the Lenders (including the Swing Lender and the Issuing Banks) shall have no obligation to make additional Loans or otherwise extend additional credit hereunder. In the event Holdings and Borrowers do not cure all financial covenant violations as provided in this Section 9.3, the existing Event of Default shall continue unless waived in writing by the Required Lenders in accordance herewith. (de) Notwithstanding anything to the contrary contained in herein, regardless of whether an investment of Curative Equity is made prior to the foregoing or this Agreementapplicable Financial Statement Delivery Date, (i) Holdings and Borrowers’ rights under this Section 9.3 may (Ai) be exercised not more than five (5) 5 times during the term of this Agreement, Agreement and (Bii) not be exercised unless more than 2 times in each four any twelve fiscal quarter period, there shall be a month period and not more than 2 consecutive months. Regardless of two fiscal quarters in which no whether an investment of Curative Equity is contributed pursuant heretomade prior to the applicable Financial Statement Delivery Date, (ii) the any amount of Curative Equity contributed that is in any month shall be no greater than excess of the amount required sufficient to cause Borrowers to be in pro forma compliance with all of the Fixed Charge Coverage Ratio for the applicable period, and (iii) the Specified Financial Covenants as at such date shall not constitute Curative Equity (but shall be disregarded for purposes of determining Consolidated Adjusted EBITDA for any pricing, financial covenant based conditions or any baskets with respect required to be used to prepay the covenants contained in this Agreement and there shall be no pro forma reduction in Indebtedness with the proceeds of any Curative Equity for determining compliance with the Fixed Charge Coverage Ratio or for determining any pricing, financial covenant based conditions or baskets with respect to the covenants contained in this Agreement, in each case in the quarter in which such Curative Equity is usedObligations).

Appears in 2 contracts

Samples: Credit Agreement (Ranger Energy Services, Inc.), Credit Agreement (Ranger Energy Services, Inc.)

Curative Equity. (a) At the election of Administrative Borrower upon written notice to Agent and subject Subject to the limitations set forth in clause (d) below, Holdings and Borrowers may any holder of Equity Interests of any Borrower or any direct or indirect parent of the Borrower Agent shall have the right to cure (and shall be deemed to have cured) an Event of Default arising out of a breach of any of the Fixed Charge Coverage Ratio financial covenant covenants set forth in Article 7 Sections 10.3.1 and 10.3.2 (the “Specified Financial Covenants”) if they Borrowers receive the cash proceeds of an investment of Curative Equity within 10 ten (10) Business Days after the date on which the Fixed Charge Coverage Ratio is first financial statements referred to in Sections 10.1.2(a) and (c) are required to be tested pursuant to the terms hereofdelivered in respect of such fiscal period for which such financial covenant is being measured in accordance with Section 10.1.2. (b) Borrowers Borrower Agent shall promptly notify Agent of its receipt of any proceeds of Curative Equity (and any investment shall immediately apply the same to the payment of Curative Equity shall be in immediately available fundsfirst to Term Loans (on a pro rata basis to all remaining installments based upon the respective amounts thereof), second to the Capital Expenditure Loans (on a pro rata basis to all remaining installments based upon the respective amounts thereof), third to the Revolver Loans (without reduction of the Revolver Commitment), then to Cash Collateralize outstanding Letters of Credit, and then to other Obligations). (c) Upon delivery of a certificate by Administrative Borrower Agent to Agent as to the amount of the proceeds of such Curative Equity and that such amount complies has been applied to the Obligations in accordance with the provisions of this Section 9.3clause (b) above, then such Curative Equity shall be treated on a dollar-for-dollar basis as EBITDA or Net Worth, as applicable, of the Borrowers for such Fiscal Quarter any Event of Default that has occurred and is continuing from a breach of any of the Fixed Charge Coverage Ratio shall be deemed cured Specified Financial Covenants and for the three subsequent Fiscal Quarters with no further action required by the Required Lenders. Prior to the date of the delivery of a certificate conforming to the requirements of this Section, any Event of Default that has occurred as a result of a breach of any of the Fixed Charge Coverage Ratio Specified Financial Covenants shall be deemed to be continuing and, as a result, the Lenders (including the Swing Lender and the Issuing Banks) shall have no obligation to make additional Loans loans or otherwise extend additional credit hereunder. In the event Holdings and Borrowers do Borrower Agent does not cure all financial covenant violations as provided in this Section 9.310.3.3, the existing Event Event(s) of Default shall continue unless waived in writing by the Required Lenders in accordance herewith. (d) Notwithstanding anything to the contrary contained in the foregoing or this Agreement, (i) Holdings and Borrowers’ rights under this Section 9.3 10.3.3 may (A) be exercised not more than five (5) times during the term of this Agreement, ; (Bii) not be exercised unless in each trailing four fiscal quarter period, Fiscal Quarter Period there shall be a period at least two Fiscal Quarters in respect of two fiscal quarters in which no Curative Equity is contributed pursuant heretomade, (iiiii) the amount of any Curative Equity contributed in any month shall be no greater than not exceed the amount required to cause Borrowers to be in pro forma compliance with such financial covenants and the Fixed Charge Coverage Ratio for the applicable period, and (iii) the amount of all such Curative Equity shall not exceed $30,000,000 in the aggregate during the term of this Agreement, (iv) any Curative Equity will be disregarded for purposes of determining Consolidated Adjusted the availability of any baskets, pricing or other items governed by reference to EBITDA for any pricing, financial covenant based conditions or any baskets with respect to the covenants contained in this Agreement the loan documentation, and there shall be (v) no pro forma reduction in Indebtedness indebtedness with the proceeds of any Curative Equity shall be considered for determining purposes of recalculating compliance with the Fixed Charge Coverage Ratio or financial covenants for determining any pricing, financial covenant based conditions or baskets with respect to the covenants contained in this Agreement, in each case in the initial quarter in which during such Curative Equity is usedperiod.

Appears in 2 contracts

Samples: First Lien Loan and Security Agreement (Duckhorn Portfolio, Inc.), First Lien Loan and Security Agreement (Duckhorn Portfolio, Inc.)

Curative Equity. (a) At the election of Administrative Borrower upon written notice to Agent and subject Subject to the limitations set forth in clause (d) belowSection 13.4(d), Holdings and Borrowers may cure (and shall will be deemed to have cured) an Event of Default arising out of a breach of any of the Fixed Charge Coverage Ratio financial covenant covenants set forth in Article 7 Section 11.12 (each such financial covenant, a “Specified Financial Covenant”; each such Event of Default, a “Specified Financial Covenant Default”) if they Borrowers receive the cash proceeds of an investment of Curative Equity within 10 Business Days after the earliest date on which the Fixed Charge Coverage Ratio each applicable Specified Financial Covenant is first required to be tested for the applicable Computation Period pursuant to this Agreement (the terms hereof“Cure Period”). (b) Borrowers shall provide Administrative Agent with irrevocable written notice during the Cure Period of their intent to cure the Specified Financial Covenant(s) with Curative Equity (the “Cure Notice”) and shall promptly notify Administrative Agent of its their receipt of any proceeds of Curative Equity and any investment shall make a prepayment of Curative Equity shall be the Term Loans in immediately available fundsaccordance with Sections 6.2 and 6.3. (c) Upon receipt by the Borrowers of the Curative Equity (and application of the proceeds of such Curative Equity in accordance with Sections 6.2 and 6.3) and delivery of a certificate by Borrower Representative to Administrative Borrower to Agent certifying as to the amount of the proceeds of such any Curative Equity and that such those proceeds have been applied in accordance with Section 13.4(b) in an amount complies equal to the amount which if applied to increase EBITDA for the Computation Period would result in the Borrowers being in pro forma compliance with the provisions applicable Specified Financial Covenant(s) (which certificate shall also set forth the calculation of this Section 9.3the applicable Specified Financial Covenant being cured in reasonable detail), then any Event of each applicable Specified Financial Covenant Default that occurred and is continuing from a breach of the Fixed Charge Coverage Ratio shall will be deemed cured with no further action required by the Required Lenders. Prior to Before the date of the delivery of a certificate conforming to the requirements of this Sectionthat certificate, any Event of Specified Financial Covenant Default that has occurred as a result of a breach of the Fixed Charge Coverage Ratio shall and is continuing will be deemed to be continuing continuing, and, as a result, the Lenders (including the Swing Lender and the Issuing Banks) shall will have no obligation to make additional Loans loans or otherwise extend additional credit hereunderunder this Agreement. In the event Holdings and If Borrowers do not cure all financial covenant violations a Specified Financial Covenant Default as provided in this Section 9.313.4, the existing Event of then that Specified Financial Covenant Default shall will continue unless waived in writing by the Required Lenders in accordance herewithwith this Agreement. (d) To the extent that proceeds of Curative Equity are received with respect to any Fiscal Quarter, those proceeds will be deemed to be EBITDA for purposes of determining compliance with the Specified Financial Covenant(s) for that Fiscal Quarter and subsequent periods that include that Fiscal Quarter. Notwithstanding anything any provision of this Agreement to the contrary contained in the foregoing or this Agreementcontrary, (i) Holdings and Borrowers’ rights under this Section 9.3 may 13.4 (A) may be exercised not no more than five (5) four times during the term of this Agreement, ; (B) may be exercised no more than twice in any period of four Fiscal Quarters; (C) may not be exercised unless in each four fiscal quarter two consecutive Fiscal Quarters and (D) may not be exercised if the amount of proceeds of the Curative Equity, together with the aggregate amount of proceeds of all prior Curative Equity, exceeds 20% of Consolidated EBITDA (calculated prior to giving effect to such Curative Equity) in any trailing twelve month period, there shall be a period of two fiscal quarters in which no Curative Equity is contributed pursuant hereto, ; (ii) the amount of proceeds of any Curative Equity contributed in any month shall may not be no greater than or less than the amount required to cause Borrowers to be in pro forma compliance with each applicable Specified Financial Covenant(s) as at the Fixed Charge Coverage Ratio for end of the applicable period, Computation Period (without giving effect to any prepayment of Debt); and (iii) the proceeds of Curative Equity shall will be disregarded for purposes of determining Consolidated Adjusted EBITDA for any pricing, financial covenant covenant-based conditions conditions, or any baskets with respect to the covenants contained in this Agreement and there shall will be no pro forma reduction in Indebtedness Debt with the proceeds of any Curative Equity for determining compliance with the Fixed Charge Coverage Ratio Specified Financial Covenants or for determining any pricing, financial covenant covenant-based conditions conditions, or baskets with respect to the covenants contained in this Agreement, in each case in the quarter Fiscal Quarter in which such that Curative Equity is usedused and each Computation Period ending on the last day of the following three Fiscal Quarters.

Appears in 2 contracts

Samples: Credit Agreement (Quest Resource Holding Corp), Credit Agreement (Quest Resource Holding Corp)

Curative Equity. (a) At the election of Administrative Borrower upon written notice to Agent and subject Subject to the limitations set forth in clause (df) below, Holdings and Borrowers Borrower may cure (and shall be deemed to have cured) an Event of Default arising out of a breach of any of the Fixed Charge Coverage Ratio financial covenant covenants set forth in Article 7 Section 7.1, 7.2, 7.3 and 7.5 (the “Specified Financial Covenants”) if they receive Borrower receives the cash proceeds of an investment of Curative Equity within 10 15 Business Days after the date that is the earlier to occur of (i) the date on which the Fixed Charge Coverage Ratio Compliance Certificate is first delivered to Agent in respect of the Fiscal Quarter with respect to which any such breach occurred and (ii) the date on which the Compliance Certificate is required to be tested pursuant delivered to Agent in respect of the terms hereofFiscal Quarter with respect to which any such breach occurred. (b) Borrowers Borrower shall promptly notify Agent of its receipt of any proceeds of Curative Equity and any Equity. (c) Any investment of Curative Equity shall be in immediately available funds. funds and, subject to the limitations set forth in clause (cf) Upon delivery of a certificate by Administrative Borrower to Agent as to below, the amount of net cash proceeds from such Curative Equity shall be in an amount that is sufficient to cause Borrower to be in compliance with all of the Specified Financial Covenants as at the last day of the most recently ended Fiscal Quarter, calculated (x) for such purpose as if such amount of Curative Equity were additional Consolidated EBITDA of Borrower as at such date (and for each subsequent measurement period which includes such Fiscal Quarter) and (y) to reflect a pro forma reduction in Indebtedness (to the extent that the proceeds of such Curative Equity are used to prepay the Loans) at the beginning of such Fiscal Quarter and for each subsequent measurement period which includes such Fiscal Quarter. (d) In the Compliance Certificate delivered in respect of the Fiscal Quarter end on which Curative Equity is used, Borrower shall (i) note that it will receive net cash proceeds of an investment of Curative Equity within the time period specified in clause (a) above, and (ii) set forth a calculation of the breached Specified Financial Covenants as at such amount complies Fiscal Quarter end (including for such purposes the net cash proceeds of such proposed Curative Equity (broken out separately) as deemed Consolidated EBITDA as if received on such date and a pro forma reduction of Indebtedness at the beginning of such Fiscal Quarter), which shall confirm that on a pro forma basis after taking into account the receipt of the Curative Equity proceeds, Borrower would have been in compliance with the provisions Specified Financial Covenants as of such date. (e) Upon delivery of the Compliance Certificate conforming to the requirements of this Section 9.37.6, and investment of Curative Equity within the time period specified for such investment in clause (a) above, then any Event of Default that occurred and is continuing from as a result of a breach of any of the Fixed Charge Coverage Ratio Specified Financial Covenants shall be cured and deemed cured to have not occurred with no further action required by the Required Requisite Lenders. Prior to the date of the delivery of a certificate conforming to the requirements of this Section, any Event of Default that has occurred as a result of a breach of the Fixed Charge Coverage Ratio shall be deemed to be continuing and, as a result, the Lenders (including the Swing Lender and the Issuing Banks) shall have no obligation to make additional Loans or otherwise extend additional credit hereunder. In the event Holdings and Borrowers do Borrower does not cure all financial covenant violations as provided in this Section 9.37.6, the existing Event Event(s) of Default shall continue unless waived in writing by the Required Requisite Lenders in accordance herewith. (df) Notwithstanding anything to the contrary contained in the foregoing or this Agreement, (i) Holdings and Borrowers’ Borrower’s rights under this Section 9.3 7.6 may (Ai) be exercised not more than five (5) times during the term of this Agreement, Agreement and (Bii) not be exercised unless with respect to more than two (2) consecutive Fiscal Quarters. Any amount of Curative Equity that is in each four fiscal quarter period, there excess of the amount sufficient to cause Borrower to be in compliance with all of the Specified Financial Covenants as at such date shall be a period of two fiscal quarters in which no not constitute Curative Equity. (g) To the extent that the net cash proceeds from Curative Equity is contributed pursuant heretoreceived and included in the calculation of the Specified Financial Covenants as deemed Consolidated EBITDA, (ii) the Curative Equity contributed in any month shall be no greater than the amount required or deemed to cause Borrowers to be in pro forma compliance with the Fixed Charge Coverage Ratio reduce Indebtedness, as applicable, for the applicable periodFiscal Quarter pursuant to this Section 7.6, and (iii) the such net cash proceeds from Curative Equity shall be disregarded deemed to be Consolidated EBITDA and to reduce Indebtedness for purposes of determining Consolidated Adjusted EBITDA for any pricing, financial covenant based conditions or any baskets with respect to the covenants contained in this Agreement and there shall be no pro forma reduction in Indebtedness with the proceeds of any Curative Equity for determining compliance with the Fixed Charge Coverage Ratio or Specified Financial Covenants for determining any pricing, financial covenant based conditions or baskets with respect to the covenants contained in this Agreement, in each case in the quarter in which subsequent periods that include such Curative Equity is usedFiscal Quarter.

Appears in 2 contracts

Samples: Credit and Guaranty Agreement (Kv Pharmaceutical Co /De/), Credit and Guaranty Agreement (Kv Pharmaceutical Co /De/)

Curative Equity. (ai) At Notwithstanding the election existence of Administrative Borrower upon written notice a Default resulting from a financial covenant violation under either Item 21(a) of the Schedule or Item 21(b) of the Schedule, a cash equity contribution (in the form of common equity or other Qualified Equity Interests having terms acceptable to Agent Agent) made by Sponsor to LSG and immediately contributed to the capital of LSG, on or prior to the day that is ten (10) days after the day on which financial statements are required to be delivered for the applicable fiscal quarter, will, subject to the limitations set forth in terms of clause (dii) belowof this Section 13(c), Holdings at the written request of Borrowers’ Agent, be included in the calculation of EBITDA, solely for the purposes of determining compliance with such financial covenant(s) at the end of such fiscal quarter and Borrowers may cure any subsequent period that includes such fiscal quarter (and shall be deemed to have cured) an Event of Default arising out of any such equity contribution, a breach of the Fixed Charge Coverage Ratio financial covenant set forth in Article 7 if they receive the cash proceeds of an investment of Curative Equity within 10 Business Days after the date on which the Fixed Charge Coverage Ratio is first required to be tested pursuant to the terms hereofContribution”). (bii) Borrowers shall promptly notify Agent of its receipt of any proceeds of All Curative Equity and any investment of Curative Equity Contributions shall be in immediately available funds.comply with the following conditions: (cA) Upon delivery of a certificate by Administrative Borrower to Agent as to the amount of the proceeds of such any Curative Equity and that such amount complies with the provisions of this Section 9.3, then any Event of Default that occurred and is continuing from a breach of the Fixed Charge Coverage Ratio shall be deemed cured with no further action required by the Required Lenders. Prior to the date of the delivery of a certificate conforming to the requirements of this Section, any Event of Default that has occurred as a result of a breach of the Fixed Charge Coverage Ratio shall be deemed to be continuing and, as a result, the Lenders (including the Swing Lender and the Issuing Banks) shall have no obligation to make additional Loans or otherwise extend additional credit hereunder. In the event Holdings and Borrowers do not cure all financial covenant violations as provided in this Section 9.3, the existing Event of Default shall continue unless waived in writing by the Required Lenders in accordance herewith. (d) Notwithstanding anything to the contrary contained in the foregoing or this Agreement, (i) Holdings and Borrowers’ rights under this Section 9.3 may (A) be exercised not more than five (5) times during the term of this Agreement, (B) Contribution will not be exercised unless in each four fiscal quarter period, there shall be a period of two fiscal quarters in which no Curative Equity is contributed pursuant hereto, (ii) the Curative Equity contributed in any month shall be no greater than the amount required to cause Borrowers to be in pro forma compliance with cure the Fixed Charge Coverage Ratio for the applicable period, and relevant financial covenant violation(s), (iiiB) the all Curative Equity shall Contributions and the use of proceeds thereof will be disregarded for all other purposes under this Agreement, (C) there shall be no more than two (2) Curative Equity Contributions during any fiscal year of determining Consolidated Adjusted EBITDA for Borrowers, (D) there shall be no more than four (4) Curative Equity Contributions made in the aggregate after the Agreement Date, (E) no Curative Equity Contribution shall be permitted with respect to any pricing, financial covenant based conditions or any baskets fiscal quarter if a Curative Equity Contribution was made with respect to the covenants contained in this Agreement and there immediately preceding fiscal quarter, and (F) all Curative Equity Contributions will be applied to the Obligations. (iii) Until timely receipt of the applicable Curative Equity Contribution, a Default shall be no pro forma reduction deemed to exist for all purposes under this Agreement. Upon timely receipt by Borrowers in Indebtedness with cash of the proceeds of any applicable Curative Equity for determining compliance with Contribution and the Fixed Charge Coverage Ratio or for determining any pricing, financial covenant based conditions or baskets with respect corresponding application to the covenants contained in Obligations (to the extent required by this AgreementSection 13(c)), in each case in the quarter in which applicable Default(s) shall be deemed waived. Notwithstanding the foregoing, Agent shall not exercise any rights or remedies to the extent Agent has received a notice from Borrowers’ Agent and the Sponsor stating their irrevocable election and commitment to make a Curative Equity Contribution under this Section 13(c), until the date specified for such Curative Equity is usedContribution in such notice in accordance with this Section 13(c).

Appears in 2 contracts

Samples: Loan and Security Agreement, Loan and Security Agreement (Lighting Science Group Corp)

Curative Equity. (a) At Notwithstanding anything to the election of Administrative Borrower upon written notice to Agent and contrary contained in Section 6.01, but subject to the limitations set forth in clause clauses (d) and (e) below, Holdings and Borrowers the Borrower may cure (and shall be deemed to have cured) an Event of Default arising out of a breach of the Fixed Charge Coverage Ratio financial covenant set forth in Article 7 FCCR Financial Covenant if they receive the Borrower receives the cash proceeds of an investment of Curative Equity within 10 on or before the date that is ten (10) Business Days after the date that is the earlier to occur of (i) the date on which the Fixed Charge Coverage Ratio compliance certificate is first delivered to the Administrative Agent in respect of the Fiscal Quarter with respect to which any such breach occurred (the “Specified Fiscal Quarter”), and (ii) the date on which the Compliance Certificate is required to be tested delivered to the Administrative Agent pursuant to Section 5.03(m) in respect of the terms hereofSpecified Fiscal Quarter (such earlier date, the “Financial Statement Delivery Date”); provided, that the Borrower’s right to so cure an Event of Default shall be contingent on its timely delivery of such compliance certificate and financial statements for the Specified Fiscal Quarter as required under Section 5.03(m). (b) Borrowers In connection with a cure of an Event of Default under this Section 6.03, on or before the Financial Statement Delivery Date for the Specified Fiscal Quarter, the Borrower shall deliver to the Administrative Agent a certification of a Responsible Officer which contains, or the Borrower shall include in the compliance certificate for the Specified Fiscal Quarter: (i) an indication that the Borrower will receive proceeds of Curative Equity for the Specified Fiscal Quarter and a statement setting forth the anticipated amount of such proceeds, (ii) a calculation of the financial results or prospective financial results of the Borrower for the Specified Fiscal Quarter (including for such purposes the proceeds of the Curative Equity (broken out separately) as deemed EBITDA as if received on such date), which shall confirm that on a pro forma basis after taking into account the receipt of the Curative Equity proceeds, the Borrower would have been or will be in compliance with the FCCR Financial Covenant for the Specified Fiscal Quarter, (iii) a certification that the full amount of the cash proceeds of the equity investment made by Holdings or other then existing shareholders of Holdings in connection with such cure of the Event of Default shall be used to prepay the Obligations in accordance with Section 2.06(b)(iv), regardless of whether the amount of such cash proceeds is in excess of the amount that is sufficient to cause the Borrower to be in compliance with the FCCR Financial Covenant for the Specified Fiscal Quarter, and (iv) a certification that any amount of the cash proceeds of the equity investment in excess of the amount that is sufficient to cause the Borrower to be in compliance with the FCCR Financial Covenant for the Specified Fiscal Quarter shall not be included in the calculation of EBITDA for any Fiscal Quarter. (c) The Borrower shall promptly notify the Administrative Agent of its receipt of any proceeds of Curative Equity (and any investment of Curative Equity shall be in immediately available funds. (c) Upon delivery of a certificate by Administrative Borrower to Agent as to apply the full amount of the cash proceeds of such Curative Equity and that such amount complies with the provisions equity investment made by Holdings or other than existing shareholders of this Section 9.3, then any Event of Default that occurred and is continuing from a breach Holdings to the payment of the Fixed Charge Coverage Ratio shall be deemed cured with no further action required by the Required Lenders. Prior to the date of the delivery of a certificate conforming to the requirements of this Section, any Event of Default that has occurred as a result of a breach of the Fixed Charge Coverage Ratio shall be deemed to be continuing and, as a result, the Lenders (including the Swing Lender and the Issuing Banks) shall have no obligation to make additional Loans or otherwise extend additional credit hereunder. In the event Holdings and Borrowers do not cure all financial covenant violations as provided in this Section 9.3, the existing Event of Default shall continue unless waived in writing by the Required Lenders in accordance herewith. (d) Notwithstanding anything to the contrary contained Obligations in the foregoing or this Agreement, (i) Holdings and Borrowers’ rights under this manner specified in Section 9.3 may (A) be exercised not more than five (5) times during the term of this Agreement, (B) not be exercised unless in each four fiscal quarter period, there shall be a period of two fiscal quarters in which no Curative Equity is contributed pursuant hereto, (ii) the Curative Equity contributed in any month shall be no greater than the amount required to cause Borrowers to be in pro forma compliance with the Fixed Charge Coverage Ratio for the applicable period, and (iii) the Curative Equity shall be disregarded for purposes of determining Consolidated Adjusted EBITDA for any pricing, financial covenant based conditions or any baskets with respect to the covenants contained in this Agreement and there shall be no pro forma reduction in Indebtedness with the proceeds of any Curative Equity for determining compliance with the Fixed Charge Coverage Ratio or for determining any pricing, financial covenant based conditions or baskets with respect to the covenants contained in this Agreement, in each case in the quarter in which such Curative Equity is used2.06(b)(iv)).

Appears in 1 contract

Samples: Asset Based Loan Credit Agreement (Express, Inc.)

Curative Equity. (a) At the election of Administrative Borrower upon written notice to Agent and subject Subject to the limitations set forth in clause clauses (d) and (e) below, Holdings and Borrowers may cure (and shall be deemed to have cured) an Event of Default arising out of a breach of the Fixed Charge Coverage Ratio financial covenant set forth in Article Section 7 (the “Specified Financial Covenant”) if they receive the cash proceeds of an investment of Curative Equity within 10 Business Days on or before the date that is ten days after the date that is the earlier to occur of (i) the date on which the Fixed Charge Coverage Ratio Compliance Certificate is first delivered to Agent in respect of the fiscal month with respect to which any such breach occurred (the “Specified Fiscal Month”), and (ii) the date on which the Compliance Certificate is required to be tested delivered to Agent pursuant to Section 5.1 in respect of the terms hereofSpecified Fiscal Month (such earlier date, the “Financial Statement Delivery Date”); provided, that Borrowers’ right to so cure an Event of Default shall be contingent on their timely delivery of such Compliance Certificate and financial statements for the Specified Fiscal Month as required under Section 5.1. (b) In connection with a cure of an Event of Default under this Section 9.3, on or before the Financial Statement Delivery Date for the Specified Fiscal Month, Borrowers shall deliver to Agent a certification of an Authorized Person which contains, or Borrowers shall include in the Compliance Certificate for the Specified Fiscal Month: (i) an indication that Borrowers will receive proceeds of Curative Equity for the Specified Fiscal Month and a statement setting forth the anticipated amount of such proceeds, (ii) a calculation of the financial results or prospective financial results of Borrowers for the Specified Fiscal Month (including for such purposes the proceeds of the Curative Equity (broken out separately) as deemed EBITDA as if received on such date), which shall confirm that on a pro forma basis after taking into account the receipt of the Curative Equity proceeds, Borrowers would have been or will be in compliance with the Specified Financial Covenant for the Specified Financial Month, (iii) a certification that the full amount of the cash proceeds of the equity investment in Qualified Equity Interest made by Sponsor or other then existing shareholders of Parent in connection with such cure of the Event of Default shall be used to prepay the Obligations in accordance with Section 2.4(e)(ii), regardless of whether the amount of such cash proceeds is in excess of the amount that is sufficient to cause Borrowers to be in compliance with the Specified Financial Covenant for the Specified Fiscal Month, and (iv) a certification that any amount of the cash proceeds of the equity investment in excess of the amount that is sufficient to cause Borrowers to be in compliance with the Specified Financial Covenant for the Specified Fiscal Month shall not be included in the calculation of EBITDA for any fiscal month. (c) Borrowers shall promptly notify Agent of its receipt of any proceeds of Curative Equity (and any shall immediately apply the full amount of the cash proceeds of the equity investment made by the than existing shareholders of Parent to the payment of the Obligations in the manner specified in Section 2.4(e)(ii)). (d) Any investment of Curative Equity shall be in immediately available fundsfunds and shall be in an amount that is sufficient to but not greater than the amount necessary to cause Borrowers to be in compliance with the Specified Financial Covenant for the Specified Fiscal Month, calculated for such purpose as if such amount of Curative Equity were additional EBITDA of Borrowers, on a Consolidated basis, as at such date. (ce) Upon delivery of a certificate by Administrative Borrower to Agent as Notwithstanding anything to the amount contrary contained herein, regardless of whether an investment of Curative Equity is made prior to the applicable Financial Statement Delivery Date, Borrowers’ rights under this Section 9.3 may (i) be exercised not more than 5 times during the term of this Agreement, and (ii) not be exercised more than 3 times during any 12 consecutive fiscal months. (f) If Borrowers have (i) delivered a certification or a Compliance Certificate conforming to the requirements of Section 9.3(b), and (ii) received proceeds of such an investment of Curative Equity in immediately available funds on or before the deadline set forth in Section 9.3(a) and in an amount that such amount complies is sufficient to cause Borrowers to be in compliance with the provisions of this Section 9.3Specified Financial Covenant for the Specified Fiscal Month, then any Event of Default that occurs or has occurred and is continuing from as a result of a breach of the Fixed Charge Coverage Ratio Specified Financial Covenant for the Specified Fiscal Month shall be deemed cured with no further action required by the Required Lenders. Prior to the date satisfaction of the delivery of a certificate conforming to the foregoing requirements of this SectionSection 9.3(f), any Event of Default that occurs or has occurred as a result of a breach of the Fixed Charge Coverage Ratio Specified Financial Covenant shall be deemed to be continuing and, as a result, the Lenders (including the Swing Lender and the Issuing BanksBank) shall have no obligation to make additional Loans loans or otherwise extend additional credit hereunder. In the event Holdings and Borrowers do not cure all financial covenant violations as provided in this Section 9.3, the existing Event Event(s) of Default shall continue unless waived in writing by the Required Lenders in accordance herewith. (dg) Notwithstanding anything to To the contrary contained in the foregoing or this Agreement, (i) Holdings and Borrowers’ rights under this Section 9.3 may (A) be exercised not more than five (5) times during the term of this Agreement, (B) not be exercised unless in each four fiscal quarter period, there shall be a period of two fiscal quarters in which no extent that Curative Equity is contributed received and included in the calculation of the Specified Financial Covenant as deemed EBITDA for any fiscal month pursuant heretoto this Section 9.3, (ii) the such Curative Equity contributed in any month shall be no greater than the amount required to cause Borrowers deemed to be in pro forma EBITDA for purposes of determining compliance with the Fixed Charge Coverage Ratio Specified Financial Covenant for the applicable period, and (iii) the subsequent periods that include such fiscal month. Curative Equity shall be disregarded for purposes of determining Consolidated Adjusted EBITDA for any pricing, financial covenant based conditions or any baskets with respect to the covenants contained in this Agreement and there Agreement. In addition, notwithstanding any mandatory prepayment of Obligations pursuant to Section 2.4(e)(ii), any Indebtedness so prepaid shall be no deemed to remain outstanding for purposes of determining pro forma reduction in Indebtedness with the proceeds of any Curative Equity for determining or actual compliance with the Fixed Charge Coverage Ratio Specified 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 in the quarter in which Specified Fiscal Month or subsequent periods that include such Curative Equity is usedfiscal month.

Appears in 1 contract

Samples: Credit Agreement (Liberty Oilfield Services Inc.)

Curative Equity. (a) At the election of Administrative Borrower upon written notice to Agent and subject Subject to the limitations set forth in clause clauses (d) and (e) below, Holdings and Borrowers Loan Party Obligors may cure (and shall be deemed to have cured) an Event of Default pursuant to Section 7.1(c)(i) arising out of a breach of the Fixed Charge Coverage Ratio financial covenant covenants set forth in Article 7 Schedule F (the “Specified Financial Covenants”) if they receive the cash proceeds of an investment of Curative Equity within 10 on or before the date that is ten (10) Business Days after the date that is the earlier to occur of (i) the date on which the Fixed Charge Coverage Ratio Compliance Certificate is first delivered to Lender in respect of the Covenant Compliance Period with respect to which any such breach occurred (the “Specified Covenant Compliance Period”), and (ii) the date on which the Compliance Certificate is required to be tested delivered to Lender pursuant to Section 5.15(c) in respect of the terms hereofSpecified Covenant Compliance Period (such earlier date, the “Financial Statement Delivery Date”); provided, that Loan Party Obligors’ right to so cure an Event of Default shall be contingent on their timely delivery of such Compliance Certificate and financial statements for the Specified Covenant Compliance Period as required under Section 5.15. (b) Borrowers In connection with a cure of an Event of Default under this 7.4, on or before the Financial Statement Delivery Date for the Specified Covenant Compliance Period, Loan Party Obligors shall deliver to Lender a certification of the principal financial officer of Administrative Borrower which contains, or Loan Party Obligors shall include in the Compliance Certificate for the Specified Covenant Compliance Period: (i) an indication that Loan Party Obligors will receive proceeds of Curative Equity for the Specified Covenant Compliance Period and a statement setting forth the anticipated amount of such proceeds, (ii) a calculation of the financial results or prospective financial results of Loan Party Obligors for the Specified Covenant Compliance Period (including for such purposes the proceeds of the Curative Equity (broken out separately) as deemed EBITDA as if received on such date), which shall confirm that on a pro forma basis after taking into account the receipt of the Curative Equity proceeds, Loan Party Obligors would have been or will be in compliance with the Specified Financial Covenants for the Specified Covenant Compliance Period, and (iii) a certification that any amount of the cash proceeds of the Curative Equity in excess of the amount that is sufficient to cause Loan Party Obligors to be in compliance with the Specified Financial Covenants for the Specified Covenant Compliance Period shall not be included in the calculation of EBITDA for any fiscal quarter. (c) Loan Party Obligors shall promptly notify Agent Lender of its receipt of any proceeds of Curative Equity (and any shall immediately apply the full amount of the cash proceeds of the equity investment made by Parent to the payment of the Obligations in the manner specified in Section 4.2). (d) Any investment of Curative Equity shall be in immediately available fundsfunds and shall be in an amount that is sufficient to cause Loan Party Obligors to be in compliance with the Specified Financial Covenants for the Specified Covenant Compliance Period, calculated for such purpose as if such amount of Curative Equity were additional EBITDA as at such date, and such amount shall not be included in the calculation of EBITDA in any subsequent Covenant Compliance Period. (ce) Upon delivery Notwithstanding anything to the contrary contained herein, regardless of a certificate by Administrative Borrower whether an investment of Curative Equity is made prior to Agent as to the applicable Financial Statement Delivery Date, Loan Party Obligors’ rights under this Section 7.4 may (i) be exercised not more than three (3) times during the term of this Agreement, (ii) not be exercised more than one (1) time in any twelve (12) fiscal month period, and (iii) not be exercised if the amount of the proposed investment of Curative Equity exceeds the $2,000,000. Regardless of whether an investment of Curative Equity is made prior to the applicable Financial Statement Delivery Date, any amount of Curative Equity that is in excess of the amount sufficient to cause Loan Party Obligors to be in compliance with all of the Specified Financial Covenants as at such date shall not constitute Curative Equity (but shall be required to be used to prepay the Obligations in accordance with Section 4.2). (f) If Loan Party Obligors have (i) delivered a certification or a Compliance Certificate conforming to the requirements of Section 7.4(b), and (ii) received proceeds of such an investment of Curative Equity in immediately available funds on or before the deadline set forth in Section 7.4(a) and in an amount that such amount complies is sufficient to cause Loan Party Obligors to be in compliance with the provisions of this Section 9.3Specified Financial Covenants for the Specified Covenant Compliance Period, then any Event of Default that occurs or has occurred and is continuing from as a result of a breach of the Fixed Charge Coverage Ratio Specified Financial Covenants for the Specified Covenant Compliance Period shall be deemed cured with no further action required by the Required LendersLender. Prior to the date satisfaction of the delivery of a certificate conforming to the foregoing requirements of this SectionSection 7.4(f), any Event of Default that occurs or has occurred as a result of a breach of the Fixed Charge Coverage Ratio Specified Financial Covenants shall be deemed to be continuing and, as a result, the Lenders (including the Swing Lender and the Issuing Banks) shall have no obligation to make additional Loans or otherwise extend additional credit hereunder. In the event Holdings and Borrowers Loan Party Obligors do not cure all financial covenant violations as provided in this Section 9.37.4, the existing Event of Default shall continue unless waived in writing by the Required Lenders Lender in accordance herewith. (dg) Notwithstanding anything to To the contrary contained in the foregoing or this Agreement, (i) Holdings and Borrowers’ rights under this Section 9.3 may (A) be exercised not more than five (5) times during the term of this Agreement, (B) not be exercised unless in each four fiscal quarter period, there shall be a period of two fiscal quarters in which no extent that Curative Equity is contributed received and included in the calculation of the Specified Financial Covenants as deemed EBITDA for any fiscal quarter pursuant heretoto this Section 7.4, (ii) the such Curative Equity contributed in any month shall be no greater than the amount required to cause Borrowers deemed to be in pro forma EBITDA for purposes of determining compliance with the Fixed Charge Coverage Ratio Specified Financial Covenants for the applicable period, and (iii) the subsequent periods that include such fiscal quarter. Curative Equity shall be disregarded for purposes of determining Consolidated Adjusted EBITDA for any pricing, financial covenant based conditions or any baskets with respect to the covenants contained in this Agreement and Agreement. In addition, notwithstanding any mandatory prepayment of Obligations pursuant to Section 4.2 (which, for avoidance of doubt, as of the Closing Date, there are none), any Obligations so prepaid shall be no deemed to remain outstanding for purposes of determining pro forma reduction in Indebtedness with the proceeds of any Curative Equity for determining or actual compliance with the Fixed Charge Coverage Ratio Specified Financial Covenants or for determining any pricing, financial covenant based conditions or baskets with respect to the covenants contained in this Agreement, in each case in the quarter in which Specified Covenant Compliance Period or subsequent periods that include such Curative Equity is usedfiscal quarter.

Appears in 1 contract

Samples: Loan and Security Agreement (Janel Corp)

Curative Equity. (a) At the election of Administrative Borrower upon written notice to Agent and subject Subject to the limitations set forth in clause (df) below, Holdings and Borrowers may cure (and shall be deemed to have cured) an Event of Default arising out of a breach of the Fixed Charge Coverage Ratio financial covenant set forth in Article 7 Section 6.15 (the “Specified Financial Covenant”) if they the Borrowers receive the cash proceeds of an investment of Curative Equity within 10 Business Days days after the date that is the earlier to occur of (i) the date on which the Fixed Charge Coverage Ratio Compliance Certificate is first delivered to the Administrative Agent in respect of the period with respect to which any such breach occurred and (ii) the date on which the Compliance Certificate is required to be tested delivered to Administrative Agent pursuant to Section 5.02 in respect of the terms hereofperiod with respect to which any such breach occurred; provided, that each Borrower’s right to so cure an Event of Default shall be contingent on their timely delivery of such Compliance Certificate as required under Section 5.02. (b) Borrowers shall promptly notify the Administrative Agent of its receipt of any proceeds of Curative Equity (and any shall immediately apply the same to the payment of the Obligations as provided in Section 2.15(g)). (c) Any investment of Curative Equity shall be in immediately available fundsfunds and, subject to the limitations set forth in clause (f) below, shall be in an amount that is sufficient to cause Parents and their Subsidiaries to be in compliance with the Specified Financial Covenant as of the last day of the most recently ended fiscal month for which a Compliance Certificate is delivered to Agent pursuant to Section 5.02 in respect of the period with respect to which any such breach occurred, calculated for such purpose as if such amount of Curative Equity were additional Consolidated EBITDA of Parents and their Subsidiaries as of such date. (cd) Upon delivery In respect of the period end on which Curative Equity is used, Borrowers shall deliver a certificate by Administrative Borrower to Agent as Compliance Certificate (or an updated Compliance Certificate at the time of an investment of Curative Equity conforming to the amount requirements of this Section 7.04 occurring after the date on which a Compliance Certificate is due pursuant to Section 5.02, an “Updated Compliance Certificate”) which shall (i) include evidence of their receipt of Curative Equity proceeds, and (ii) set forth a calculation of the financial results and balance sheet of Parents and their Subsidiaries as at such month end (including for such purposes the proceeds of such Curative Equity (broken out separately) as deemed Consolidated EBITDA as if received on such date), which shall confirm that on a pro forma basis after taking into account the receipt of the Curative Equity proceeds by Borrower, Parents and that such amount complies their Subsidiaries would have been in compliance with the provisions Specified Financial Covenant as of such date. (e) Upon delivery of a Compliance Certificate pursuant to Section 5.02 (or an Updated Compliance Certificate) conforming to the requirements of this Section 9.37.04, then any Event of Default that occurred and is continuing from as a result of a breach of the Fixed Charge Coverage Ratio Specified Financial Covenant shall be deemed cured with no further action required by the Required Lenders. Prior to the date of the delivery of a certificate Compliance Certificate pursuant to Section 5.02 (or an Updated Compliance Certificate) conforming to the requirements of this SectionSection 7.04, any Event of Default that has occurred as a result of a breach of the Fixed Charge Coverage Ratio Specified Financial Covenant shall be deemed to be continuing and, as a result, the Lenders (including the Swing Lender and the Issuing BanksBank) shall have no obligation to make additional Loans loans or otherwise extend additional credit hereunder. In the event Holdings and Borrowers do a Borrower does not cure all financial covenant violations as provided in this Section 9.37.04, the existing Event Event(s) of Default shall continue unless waived in writing by the Required Lenders in accordance herewith. (df) Notwithstanding anything to the contrary contained in the foregoing or this Agreementforegoing, (i) Holdings and Borrowers’ rights under this Section 9.3 7.04 may (Ai) be exercised not more than five (5) 4 times during the term of this Agreement, Agreement and (Bii) not be exercised unless in each four fiscal quarter twice within any 365 day period, there shall be a period . Any amount of two fiscal quarters in which no Curative Equity that is contributed pursuant hereto, (ii) the Curative Equity contributed in any month shall be no greater than excess of the amount required sufficient to cause Borrowers Parents and their Subsidiaries to be in pro forma compliance with the Fixed Charge Coverage Ratio for the applicable period, and (iii) the Specified Financial Covenant as at such date shall not constitute Curative Equity. Curative Equity shall be disregarded for purposes of determining Consolidated Adjusted EBITDA for any pricing, financial covenant ratio-based conditions conditioning or any baskets with respect to the covenants contained in this Agreement, there shall not have been a breach of any covenant under this Agreement by reason of having no longer included such Curative Equity in any basket during the relevant period and there shall be no pro forma reduction in Indebtedness with the proceeds of any Curative Equity for purposes of determining compliance with the Fixed Charge Coverage Ratio Specified Financial Covenant or for determining any pricing, financial covenant ratio-based conditions conditioning or any baskets with respect to the covenants contained in this Agreement, in each case in the quarter period in which such Curative Equity is used. To the extent that Curative Equity is received and included in the calculation of the Specified Financial Covenant as deemed Consolidated EBITDA for any period pursuant to this Section 7.04, such Curative Equity shall be deemed to be Consolidated EBITDA for purposes of determining compliance with the Specified Financial Covenant for subsequent periods that include such period.

Appears in 1 contract

Samples: Credit Agreement (Advance Holdings, LLC)

Curative Equity. (a) At the election of Administrative Borrower upon written notice to Agent and subject Subject to the limitations set forth in clause (df) below, Holdings and Borrowers the Loan Parties may cure (and shall be deemed to have cured) an Event of Default arising out of a breach of the Fixed Charge Coverage Ratio financial covenant covenants set forth in Article 7 Section 7(c) and/or Section 7(d) (the “Specified Financial Covenants”) if they receive it receives the cash proceeds of an investment of Curative Equity within 10 15 Business Days (the “Cure Period”) after the date that is the earlier to occur of (i) the date on which the Fixed Charge Coverage Ratio Compliance Certificate is first delivered to Agent in respect of the fiscal quarter or month with respect to which any such breach occurred and (ii) the date on which the Compliance Certificate is required to be tested delivered to Agent pursuant to Section 5.1 in respect of the terms hereoffiscal quarter with respect to which any such breach occurred; provided that the Loan Parties’ right to so cure an Event of Default shall be contingent on its timely delivery of such Compliance Certificate as required under Section 5.1 and delivery to Agent of irrevocable written notice of their election to effect a cure under this Section 9.3 (the “Cure Notice”) on the date that is the earlier to occur of (i) the date on which the Compliance Certificate is delivered to Agent in respect of the fiscal quarter or month with respect to which any such breach occurred and (ii) the date on which the Compliance Certificate is required to be delivered to Agent pursuant to Section 5.1 in respect of the fiscal quarter with respect to which any such breach occurred. (b) Borrowers Borrower shall promptly notify Agent of its receipt of any proceeds of Curative Equity (and any shall immediately apply the same to the payment of the Obligations in the manner specified in Section 2.12(d)(vii)). (c) Any investment of Curative Equity shall be in immediately available fundsfunds and shall be in an amount that equals the amount necessary to cause the Loan Parties to be in compliance with the applicable Specified Financial Covenant as at the last day of the most recently ended fiscal quarter, calculated for such purpose as if such amount of Curative Equity were additional EBITDA of Parent and its Subsidiaries on a consolidated basis as at such date. (cd) Upon delivery In the Compliance Certificate delivered pursuant to Section 5.1 in respect of the fiscal quarter end on which Curative Equity is received by Borrower shall (i) include evidence of its receipt of Curative Equity proceeds, and (ii) set forth a certificate by Administrative Borrower to Agent calculation of the financial results and balance sheet of Parent and its Subsidiaries on a consolidated basis as to the amount of at such fiscal quarter end (including for such purposes the proceeds of such Curative Equity and (broken out separately) as deemed EBITDA as if received on such date), which shall confirm that such amount complies with on a pro forma basis after taking into account the provisions receipt of this Section 9.3, then any Event of Default that occurred and is continuing from a breach of the Fixed Charge Coverage Ratio shall be deemed cured with no further action required by the Required Lenders. Prior to the date of the delivery of a certificate conforming to the requirements of this Section, any Event of Default that has occurred as a result of a breach of the Fixed Charge Coverage Ratio shall be deemed to be continuing and, as a result, the Lenders (including the Swing Lender and the Issuing Banks) shall have no obligation to make additional Loans or otherwise extend additional credit hereunder. In the event Holdings and Borrowers do not cure all financial covenant violations as provided in this Section 9.3, the existing Event of Default shall continue unless waived in writing by the Required Lenders in accordance herewith. (d) Notwithstanding anything to the contrary contained in the foregoing or this Agreement, (i) Holdings and Borrowers’ rights under this Section 9.3 may (A) be exercised not more than five (5) times during the term of this Agreement, (B) not be exercised unless in each four fiscal quarter period, there shall be a period of two fiscal quarters in which no Curative Equity is contributed pursuant hereto, (ii) the Curative Equity contributed proceeds, the Loan Parties would have been in any month shall be no greater than the amount required to cause Borrowers to be in pro forma compliance with the Fixed Charge Coverage Ratio for the applicable period, and (iii) the Curative Equity shall be disregarded for purposes Specified Financial Covenant as of determining Consolidated Adjusted EBITDA for any pricing, financial covenant based conditions or any baskets with respect to the covenants contained in this Agreement and there shall be no pro forma reduction in Indebtedness with the proceeds of any Curative Equity for determining compliance with the Fixed Charge Coverage Ratio or for determining any pricing, financial covenant based conditions or baskets with respect to the covenants contained in this Agreement, in each case in the quarter in which such Curative Equity is useddate.

Appears in 1 contract

Samples: Credit Agreement (LiveVox Holdings, Inc.)

Curative Equity. (a) At the election of Administrative Borrower upon written notice to Agent and subject Subject to the limitations set forth in clause clauses (d) and (e) below, Holdings and Borrowers may cure (and shall be deemed to have cured) an Event of Default arising out of a breach of the Fixed Charge Coverage Ratio financial covenant set forth in Article Section 7 (the “Specified Financial Covenant”) if they receive the cash proceeds of an investment of Curative Equity within 10 on or before the date that is ten Business Days after the date that is the earlier to occur of (i) the date on which the Fixed Charge Coverage Ratio Compliance Certificate is first delivered to Agent in respect of the fiscal quarter with respect to which any such breach occurred (the “Specified Fiscal Quarter”), and (ii) the date on which the Compliance Certificate is required to be tested delivered to Agent pursuant to Section 5.1 in respect of the terms hereofSpecified Fiscal Quarter (such earlier date, the “Financial Statement Delivery Date”); provided, that Borrowers’ right to so cure an Event of Default shall be contingent on their timely delivery of such Compliance Certificate and financial statements for the Specified Fiscal Quarter as required under Section 5.1. (b) In connection with a cure of an Event of Default under this Section 9.3, on or before the Financial Statement Delivery Date for the Specified Fiscal Quarter, Borrowers shall deliver to Agent a certification of an Authorized Person which contains, or Borrowers shall include in the Compliance Certificate for the Specified Fiscal Quarter: (i) an indication that Borrowers will receive proceeds of Curative Equity for the Specified Fiscal Quarter and a statement setting forth the anticipated amount of such proceeds, (ii) a calculation of the financial results or prospective financial results of Borrowers for the Specified Fiscal Quarter (including for such purposes the proceeds of the Curative Equity (broken out separately) as deemed EBITDA as if received on such date), which shall confirm that on a pro forma basis after taking into account the receipt of the Curative Equity proceeds, Borrowers would have been or will be in compliance with the Specified Financial Covenant for the Specified Fiscal Quarter, (iii) [reserved], and (iv) a certification that any amount of the cash proceeds of the equity investment in excess of the amount that is sufficient to cause Borrowers to be in compliance with the Specified Financial Covenant for the Specified Fiscal Quarter shall not be included in the calculation of EBITDA for any fiscal quarter. (c) Borrowers shall promptly notify Agent of its receipt of any proceeds of Curative Equity and any Equity. (d) Any investment of Curative Equity shall be in immediately available fundsfunds and shall be in an amount that is sufficient to cause Borrowers to be in compliance with the Specified Financial Covenant for the Specified Fiscal Quarter, calculated for such purpose as if such amount of Curative Equity were additional EBITDA of Parent as at such date. (ce) Upon delivery of a certificate by Administrative Borrower to Agent as Notwithstanding anything to the contrary contained herein, regardless of whether an investment of Curative Equity is made prior to the applicable Financial Statement Delivery Date, Borrowers’ rights under this Section 9.3 may (i) be exercised not more than four times during the term of this Agreement and (ii) not be exercised more than two times in any four fiscal quarter period. Regardless of whether an investment of Curative Equity is made prior to the applicable Financial Statement Delivery Date, any amount of Curative Equity that is in excess of the amount sufficient to cause Borrowers to be in compliance with all of the Specified Financial Covenants as at such date shall not constitute Curative Equity. (f) If Borrowers have (i) delivered a certification or a Compliance Certificate conforming to the requirements of Section 9.3(b), and (ii) received proceeds of such an investment of Curative Equity in immediately available funds on or before the deadline set forth in Section 9.3(a) and in an amount that such amount complies is sufficient to cause Borrowers to be in compliance with the provisions of this Section 9.3Specified Financial Covenant for the Specified Fiscal Quarter, then any Event of Default that occurs or has occurred and is continuing from as a result of a breach of the Fixed Charge Coverage Ratio Specified Financial Covenant for the Specified Fiscal Quarter shall be deemed cured with no further action required by the Required Lenders. Prior to the date satisfaction of the delivery of a certificate conforming to the foregoing requirements of this SectionSection 9.3(f), any Event of Default that occurs or has occurred as a result of a breach of the Fixed Charge Coverage Ratio Specified Financial Covenant shall be deemed to be continuing and, as a result, the Lenders (including the Swing Lender and the Issuing BanksBank) shall have no obligation to make additional Loans loans or otherwise extend additional credit hereunder. In the event Holdings and Borrowers do not cure all financial covenant violations as provided in this Section 9.3, the existing Event Event(s) of Default shall continue unless waived in writing by the Required Lenders in accordance herewith. (dg) Notwithstanding anything to To the contrary contained in the foregoing or this Agreement, (i) Holdings and Borrowers’ rights under this Section 9.3 may (A) be exercised not more than five (5) times during the term of this Agreement, (B) not be exercised unless in each four fiscal quarter period, there shall be a period of two fiscal quarters in which no extent that Curative Equity is contributed received and included in the calculation of the Specified Financial Covenant as deemed EBITDA for any fiscal quarter pursuant heretoto this Section 9.3, (ii) the such Curative Equity contributed in any month shall be no greater than the amount required to cause Borrowers deemed to be in pro forma EBITDA for purposes of determining compliance with the Fixed Charge Coverage Ratio Specified Financial Covenant for the applicable period, and (iii) the subsequent periods that include such fiscal quarter. Curative Equity shall be disregarded for purposes of determining Consolidated Adjusted EBITDA for any pricing, financial covenant based conditions or any baskets with respect to the covenants contained in this Agreement and there Agreement. In addition, any Indebtedness so prepaid shall be no deemed to remain outstanding for purposes of determining pro forma reduction in Indebtedness with the proceeds of any Curative Equity for determining or actual compliance with the Fixed Charge Coverage Ratio Specified 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 in the quarter in which Specified Fiscal Quarter or subsequent periods that include such Curative Equity is usedSpecified Fiscal Quarter.

Appears in 1 contract

Samples: Credit Agreement (AerSale Corp)

Curative Equity. (a) At the election of Administrative Borrower upon written notice to Agent and subject Subject to the limitations set forth in clause (df) below, Holdings and Borrowers Borrower may cure (and shall be deemed to have cured) an Event of Default arising out of a breach of the Fixed Charge Coverage Ratio financial covenant set forth in Article 7 Section 6.08(c) (the “Specified Financial Covenant”) if they receive Borrower receives the cash proceeds of an investment of Curative Equity within 10 Business Days after the date on which such breach occurred. Upon the Fixed Charge Coverage Ratio is first required to be tested receipt of Curative Equity pursuant to this Section 8.02 and inclusion of such Curative Equity in the terms hereofcalculation of Consolidated Liquidity pursuant to this Section 8.02, then no Event of Default solely with respect to determining compliance with the Specified Financial Covenant shall be deemed to have occurred. For the avoidance of doubt, no Event of Default arising out of a breach of any of the financial covenants set forth in Section 6.08(a), (b) or (d) may be cured pursuant to this Section 8.02. (b) Borrowers Borrower shall promptly notify Administrative Agent of its receipt of any proceeds of Curative Equity and any Equity. (c) Any investment of Curative Equity shall be in immediately available fundsfunds and, subject to the limitations set forth in clause (f) below, shall be in an amount equal to the amount required to cause Borrower to be in compliance the Specified Financial Covenant as at such date. (cd) Upon delivery Contemporaneously with the receipt and application of Curative Equity, Borrower shall tender an updated Compliance Certificate that shall (i) include evidence of its receipt of Curative Equity proceeds and (ii) set forth a certificate by Administrative Borrower to Agent as to calculation of the amount of Consolidated Liquidity (including for such purposes the proceeds of such Curative Equity and (broken out separately)), which shall confirm that such amount complies on a pro forma basis after taking into account the receipt of the Curative Equity proceeds, Borrower would have been in compliance with the provisions Specified Financial Covenant as of such date. (e) Upon delivery of an updated Compliance Certificate conforming to the requirements of this Section 9.38.02, then any Event of Default that occurred and is continuing from as a result of a breach of any of the Fixed Charge Coverage Ratio Specified Financial Covenant shall be deemed cured with no further action required by the Required LendersLenders or any other Person. Prior to the date of the delivery of a certificate an updated Compliance Certificate conforming to the requirements of this Section, any Event of Default that has occurred as a result of a breach of the Fixed Charge Coverage Ratio Specified Financial Covenant shall be deemed to be continuing and, as a result, the Lenders (including the Swing Lender and the Issuing Banks) shall have no obligation to make additional Loans or otherwise extend additional credit hereundercontinuing. In the event Holdings and Borrowers do Borrower does not cure all financial covenant violations the Specified Financial Covenant as provided in this Section 9.38.02, the existing Event Event(s) of Default shall continue unless waived in writing by the Required Lenders in accordance herewith. (df) Notwithstanding anything to the contrary contained in the foregoing or this Agreementforegoing, (i) Holdings and Borrowers’ Borrower’s rights under this Section 9.3 8.02 may (Ai) be exercised not more than five (5) four times during the term of this Agreement, (Bii) not be exercised unless in each more than twice during any four fiscal quarter period, there shall be a period of two fiscal quarters in which no Curative Equity is contributed pursuant hereto, (ii) the Curative Equity contributed in any month shall be no greater than the amount required to cause Borrowers to be in pro forma compliance with the Fixed Charge Coverage Ratio for the applicable consecutive Fiscal Quarter period, and (iii) may not be exercised more than once during any Fiscal Quarter. The amount of Curative Equity received during any Fiscal Quarter shall not exceed $5,000,000. All proceeds of Curative Equity shall be held in a deposit account subject to a Control Agreement until the last day of the Fiscal Quarter during which such Curative Equity was received (any such Fiscal Quarter, a “Cure Quarter”). Any amount of Curative Equity that is in excess of the amount sufficient to cause Borrower to be in compliance with the Specified Financial Covenant as at such date shall not constitute Curative Equity. Curative Equity shall be disregarded for purposes of determining Consolidated Adjusted EBITDA for any pricing, financial covenant covenant-based conditions or condition, any baskets with respect to the covenants contained in this Agreement Agreement, or for any other purposes under this Agreement, and there shall be no pro forma or other reduction in Indebtedness (via cash netting or otherwise) with the proceeds of any Curative Equity for purposes of determining compliance with the Fixed Charge Coverage Ratio Specified Financial Covenant or for determining any pricingfinancial covenant-based conditions, financial covenant based conditions or baskets with respect to the covenants contained in this Agreement, in each case in the quarter in which such Curative Equity is used.

Appears in 1 contract

Samples: Credit Agreement (Franchise Group, Inc.)

Curative Equity. (a) At Notwithstanding anything to the election of Administrative Borrower upon written notice to Agent and contrary contained in Section 6.01, but subject to the limitations set forth in clause clauses (d) and (e) below, Holdings and Borrowers the Borrower may cure (and shall be deemed to have cured) an Event of Default arising out of a breach of the Fixed Charge Coverage Ratio financial covenant set forth in Article 7 FCCR Financial Covenant if they receive the Borrower receives the cash proceeds of an investment of Curative Equity within 10 on or before the date that is ten (10) Business Days after the date that is the earlier to occur of (i) the date on which the Fixed Charge Coverage Ratio compliance certificate is first delivered to the Administrative Agent in respect of the Fiscal Quarter with respect to which any such breach occurred (the “Specified Fiscal Quarter”), and (ii) the date on which the Compliance Certificatecompliance certificate is required to be tested delivered to the Administrative Agent pursuant to Section 5.03(m) in respect of the terms hereofSpecified Fiscal Quarter (such earlier date, the “Financial Statement Delivery Date”); provided, that the Borrower’s right to so cure an Event of Default shall be contingent on its timely delivery of such compliance certificate and financial statements for the Specified Fiscal Quarter as required under Section 5.03(m). (b) Borrowers In connection with a cure of an Event of Default under this Section 6.03, on or before the Financial Statement Delivery Date for the Specified Fiscal Quarter, the Borrower shall deliver to the Administrative Agent a certification of a Responsible Officer which contains, or the Borrower shall include in the compliance certificate for the Specified Fiscal Quarter: (i) an indication that the Borrower will receive proceeds of Curative Equity for the Specified Fiscal Quarter and a statement setting forth the anticipated amount of such proceeds, (ii) a calculation of the financial results or prospective financial results of the Borrower for the Specified Fiscal Quarter (including for such purposes the proceeds of the Curative Equity (broken out separately) as deemed EBITDA as if received on such date), which shall confirm that on a pro forma basis after taking into account the receipt of the Curative Equity proceeds, the Borrower would have been or will be in compliance with the FCCR Financial Covenant for the Specified Fiscal Quarter, (iii) a certification that the full amount of the cash proceeds of the equity investment made by Holdings or other then existing shareholders of Holdings in connection with such cure of the Event of Default shall be used to prepay the Obligations in accordance with Section 2.06(b)(iv), regardless of whether the amount of such cash proceeds is in excess of the amount that is sufficient to cause the Borrower to be in compliance with the FCCR Financial Covenant for the Specified Fiscal Quarter, and (iv) a certification that any amount of the cash proceeds of the equity investment in excess of the amount that is sufficient to cause the Borrower to be in compliance with the FCCR Financial Covenant for the Specified Fiscal Quarter shall not be included in the calculation of EBITDA for any Fiscal Quarter. (c) The Borrower shall promptly notify the Administrative Agent of its receipt of any proceeds of Curative Equity (and any shall immediately apply the full amount of the cash proceeds of the equity investment made by Holdings or other than existing shareholders of Holdings to the payment of the Obligations in the manner specified in Section 2.06(b)(iv)). (d) Any investment of Curative Equity shall be in immediately available fundsfunds and shall be in an amount that is sufficient to cause the Borrower to be in compliance with the FCCR Financial Covenant for the Specified Fiscal Quarter, calculated for such purpose as if such amount of Curative Equity were additional EBITDA of the Borrower as at such date. (ce) Upon delivery Notwithstanding anything to the contrary contained herein, regardless of a certificate by Administrative whether an investment of Curative Equity is made prior to the applicable Financial Statement Delivery Date, the Borrower’s rights under this Section 6.03 may (i) be exercised not more than five (5) times during the term of this Agreement, and (ii) not be exercised more than two (2) times in any four (4) Fiscal Quarter period. Regardless of whether an investment of Curative Equity is made prior to the applicable Financial Statement Delivery Date, any amount of Curative Equity that is in excess of the amount sufficient to cause the Borrower to Agent be in compliance with the Specified Financial Covenant as at such date shall not constitute Curative Equity (but shall be required to be used to prepay the Obligations in accordance with Section 2.06(b)(iv)). (f) If the Borrower has (i) delivered a certification or a compliance certificate conforming to the amount requirements of the Section 6.03(b), and (ii) received proceeds of such an investment of Curative Equity in immediately available funds on or before the deadline set forth in Section 6.03(a) and in an amount that such amount complies is sufficient to cause the Borrower to be in compliance with the provisions of this Section 9.3FCCR Financial Covenant for the Specified Fiscal Quarter, then any Event of Default that occurs or has occurred and is continuing from as a result of a breach of the Fixed Charge Coverage Ratio FCCR Financial Covenant for the Specified Fiscal Quarter shall be deemed cured with no further action required by the Required Lenders. Prior to the date satisfaction of the delivery of a certificate conforming to the foregoing requirements of this SectionSection 6.03(f), any Event of Default that occurs or has occurred as a result of a breach of the Fixed Charge Coverage Ratio FCCR Financial Covenant shall be deemed to be continuing and, as a result, the Lenders (including the Swing Lender Line Bank and the Issuing BanksBank) shall have no obligation to make additional Loans Advances or otherwise extend additional credit hereunder. In the event Holdings and Borrowers do the Borrower does not cure all financial covenant violations as provided in this Section 9.36.03, the existing Event Event(s) of Default shall continue unless waived in writing by the Required Lenders in accordance herewith. (dg) Notwithstanding anything to To the contrary contained in the foregoing or this Agreement, (i) Holdings and Borrowers’ rights under this Section 9.3 may (A) be exercised not more than five (5) times during the term of this Agreement, (B) not be exercised unless in each four fiscal quarter period, there shall be a period of two fiscal quarters in which no extent that Curative Equity is contributed received and included in the calculation of the FCCR Financial Covenant as deemed EBITDA for any Fiscal Quarter pursuant heretoto this Section 6.03, (ii) the such Curative Equity contributed in any month shall be no greater than the amount required to cause Borrowers deemed to be in pro forma EBITDA for purposes of determining compliance with the Fixed Charge Coverage Ratio FCCR Financial Covenant for the applicable period, and (iii) the subsequent periods that include such Fiscal Quarter. Curative Equity shall be disregarded for purposes of determining Consolidated Adjusted EBITDA for any pricing, financial covenant based conditions or any baskets with respect to the covenants contained in this Agreement and there Agreement. In addition, notwithstanding any mandatory prepayment of Obligations pursuant to Section 2.06(b)(iv), any Obligations so prepaid shall be no deemed to remain outstanding for purposes of determining pro forma reduction in Indebtedness with the proceeds of any Curative Equity for determining or actual compliance with the Fixed Charge Coverage Ratio FCCR 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 in the quarter in which Specified Fiscal Quarter or subsequent periods that include such Curative Equity is usedSpecified Fiscal Quarter.

Appears in 1 contract

Samples: Asset Based Loan Credit Agreement (Express, Inc.)

Curative Equity. (a) At the election of Administrative Borrower upon written notice to Agent and subject Subject to the limitations set forth in clause (d) below, Holdings and Borrowers may any holder of Equity Interests of any Borrower or any direct or indirect parent of the Borrower Agent shall have the right to cure (and shall be deemed to have cured) an Event of Default arising out of a breach of any of the Fixed Charge Coverage Ratio financial covenant covenants set forth in Article 7 Sections 10.3.1 and 10.3.2 (the “Specified Financial Covenants”) if they Borrowers receive the cash proceeds of an investment of Curative Equity within 10 ten (10) Business Days after the date on which the Fixed Charge Coverage Ratio is first financial statements referred to in Sections 10.1.2(a) and (c) are required to be tested pursuant to the terms hereofdelivered in respect of such fiscal period for which such financial covenant is being measured in accordance with Section 10.1.2. (b) Borrowers Borrower Agent shall promptly notify Agent of its receipt of any proceeds of Curative Equity (and any investment shall immediately apply the same to the payment of Curative Equity shall be in immediately available fundsfirst to Term Loans Loan One and Term Loan Two (on a pro rata basis to all remaining installments based upon the respective amounts thereof), second to the Capital Expenditure Loans (on a pro rata basis to all remaining installments based upon the respective amounts thereof), third to the Revolver Loans (without reduction of the Revolver Commitment), then fourth to Cash Collateralize outstanding Letters of Credit, and then finally to other Obligations). (c) Upon delivery of a certificate by Administrative Borrower Agent to Agent as to the amount of the proceeds of such Curative Equity and that such amount complies has been applied to the Obligations in accordance with the provisions of this Section 9.3clause (b) above, then such Curative Equity shall be treated on a dollar-for-dollar basis as EBITDA or Net Worth, as applicable, of the Borrowers for such Fiscal Quarter any Event of Default that has occurred and is continuing from a breach of any of the Fixed Charge Coverage Ratio shall be deemed cured Specified Financial Covenants and for the three subsequent Fiscal Quarters with no further action required by the Required Lenders. Prior to the date of the delivery of a certificate conforming to the requirements of this Section, any Event of Default that has occurred as a result of a breach of any of the Fixed Charge Coverage Ratio Specified Financial Covenants shall be deemed to be continuing and, as a result, the Lenders (including the Swing Lender and the Issuing Banks) shall have no obligation to make additional Loans loans or otherwise extend additional credit hereunder. In the event Holdings and Borrowers do Borrower Agent does not cure all financial covenant violations as provided in this Section 9.310.3.3, the existing Event Event(s) of Default shall continue unless waived in writing by the Required Lenders in accordance herewith. (d) Notwithstanding anything to the contrary contained in the foregoing or this Agreement, (i) Holdings and Borrowers’ rights under this Section 9.3 10.3.3 may (A) be exercised not more than five (5) times during the term of this Agreement, ; (Bii) not be exercised unless in each trailing four fiscal quarter period, Fiscal Quarter Period there shall be a period at least two Fiscal Quarters in respect of two fiscal quarters in which no Curative Equity is contributed pursuant heretomade, (iiiii) the amount of any Curative Equity contributed in any month shall be no greater than not exceed the amount required to cause Borrowers to be in pro forma compliance with such financial covenants and the Fixed Charge Coverage Ratio for the applicable period, and (iii) the amount of all such Curative Equity shall not exceed $30,000,000 in the aggregate during the term of this Agreement, (iv) any Curative Equity will be disregarded for purposes of determining Consolidated Adjusted the availability of any baskets, pricing or other items governed by reference to EBITDA for any pricing, financial covenant based conditions or any baskets with respect to the covenants contained in this Agreement the loan documentation, and there shall be (v) no pro forma reduction in Indebtedness indebtedness with the proceeds of any Curative Equity shall be considered for determining purposes of recalculating compliance with the Fixed Charge Coverage Ratio or financial covenants for determining any pricing, financial covenant based conditions or baskets with respect to the covenants contained in this Agreement, in each case in the initial quarter in which during such Curative Equity is usedperiod.

Appears in 1 contract

Samples: First Lien Loan and Security Agreement (Duckhorn Portfolio, Inc.)

Curative Equity. (a) At the election of Administrative Borrower upon written notice to Agent and subject Subject to the limitations set forth in clause (df) below, Holdings and Borrowers Borrower may cure (and shall be deemed to have cured) an Event of Default arising out of a breach of any of the Fixed Charge Coverage Ratio financial covenant covenants set forth in Article 7 clause (a) or (b) of ‎Section 6.08 (the “Specified Financial Covenants”) if they receive Borrower receives the cash proceeds of an investment of Curative Equity from Parent within 10 ten (10) Business Days after the date that is the earlier to occur of (i) the date on which the Fixed Charge Coverage Ratio Compliance Certificate is first delivered to Administrative Agent in respect of the fiscal quarter with respect to which any such breach occurred, and (ii) the date on which the Compliance Certificate is required to be tested delivered to Administrative Agent pursuant to ‎Section 5.01(d) in respect of the terms hereoffiscal quarter with respect to which any such breach occurred; provided, that Borrower’s right to so cure an Event of Default shall be contingent on their timely delivery of such Compliance Certificate as required under ‎Section 5.01(d). Upon the receipt of Curative Equity pursuant to this ‎Section 8.02 and inclusion of such Curative Equity in the calculation of the Specified Financial Covenants as deemed Consolidated EBITDA for any fiscal quarter pursuant to this ‎Section 8.02, then no Event of Default solely with respect to determining compliance with the Specified Financial Covenants for such fiscal quarter shall be deemed to have occurred. For the avoidance of doubt, no Event of Default arising out of a breach of any of the financial covenants set forth in clause (c) of ‎Section 6.08 may be cured pursuant to this ‎Section 8.02. (b) Borrowers Borrower shall promptly notify Administrative Agent of its receipt of any proceeds of Curative Equity and any Equity. (c) Any investment of Curative Equity shall be in immediately available fundsfunds and, subject to the limitations set forth in clause (f) below, shall be in an amount equal to, and shall not exceed, the amount required to cause Borrower to be in compliance with all of the Specified Financial Covenants as at the last day of the most recently ended fiscal quarter, calculated for such purpose as if such amount of Curative Equity were additional Consolidated EBITDA of Borrower (and there shall be no pro forma reduction in Consolidated Total Debt with the proceeds of any Curative Equity for determining compliance with the Leverage Ratio financial covenant) as at such date. (cd) Upon delivery Contemporaneously with the receipt and application of Curative Equity, Borrower shall submit an updated Compliance Certificate that shall (i) include evidence of its receipt of Curative Equity proceeds and (ii) set forth a certificate by Administrative calculation of the financial results and balance sheet of Borrower to Agent as to the amount of at such fiscal quarter end (including for such purposes the proceeds of such Curative Equity and (broken out separately) as deemed Consolidated EBITDA as if received on such date), which shall confirm that such amount complies on a pro forma basis after taking into account the receipt of the Curative Equity proceeds, Borrower would have been in compliance with the provisions Specified Financial Covenants as of such date. (e) Upon delivery of an updated Compliance Certificate conforming to the requirements of this Section 9.3‎Section 8.02, then any Event of Default that occurred and is continuing from as a result of a breach of any of the Fixed Charge Coverage Ratio Specified Financial Covenants shall be deemed cured with no further action required by the Required Lenders. Prior to the date of the delivery of a certificate an updated Compliance Certificate conforming to the requirements of this Section, any Event of Default that has occurred as a result of a breach of any of the Fixed Charge Coverage Ratio Specified Financial Covenants shall be deemed to be continuing and, as a result, the Lenders (including the Swing Lender and the Issuing Banks) shall have no obligation to make additional Loans or otherwise extend additional credit hereundercontinuing. In the event Holdings and Borrowers do Borrower does not cure all financial covenant violations as provided in this Section 9.3‎Section 8.02, the existing Event Event(s) of Default shall continue unless waived in writing by the Required Lenders in accordance herewith. (df) Notwithstanding anything to the contrary contained in the foregoing or this Agreementforegoing, (i) Holdings and Borrowers’ Borrower’s rights under this Section 9.3 ‎Section 8.02 may (Ai) be exercised not more than five (5) four times during the term of this Agreement, (Bii) not be exercised unless in each four fiscal two consecutive quarter period, there shall be a period of two fiscal quarters in which no Curative Equity is contributed pursuant hereto, (ii) the Curative Equity contributed in any month shall be no greater than the amount required to cause Borrowers to be in pro forma compliance with the Fixed Charge Coverage Ratio for the applicable periodperiods, and (iii) not be exercised more than twice during any four consecutive quarter period. Any amount of Curative Equity that is in excess of the amount sufficient to cause Borrower to be in compliance with all of the Specified Financial Covenants as at such date shall not constitute Curative Equity. Curative Equity shall be disregarded for purposes of determining Consolidated Adjusted EBITDA for any pricing, financial covenant covenant-based conditions condition, or any baskets with respect to the covenants contained in this Agreement Agreement, and there shall be no pro forma or other reduction in Indebtedness (via cash netting or otherwise) with the proceeds of any Curative Equity for purposes of determining compliance with the Fixed Charge Coverage Ratio Specified Financial Covenants or for determining any pricing, financial covenant covenant-based conditions conditions, or baskets with respect to the covenants contained in this Agreement, in each case in the quarter in which such Curative Equity is used. (g) To the extent that Curative Equity is received and included in the calculation of the Specified Financial Covenants as deemed Consolidated EBITDA for any fiscal quarter pursuant to this ‎Section 8.02, such Curative Equity shall be deemed to be Consolidated EBITDA for purposes of determining compliance with the Specified Financial Covenants for subsequent periods that include such fiscal quarter.

Appears in 1 contract

Samples: Credit Agreement (Orbital Energy Group, Inc.)

Curative Equity. (a) At the election of Administrative Borrower upon written notice to Agent and subject Subject to the limitations set forth in clause clauses (d) and (e) below, Holdings and Borrowers Loan Party Obligors may cure (and shall be deemed to have cured) an Event of Default pursuant to Section 7.1(c)(i) arising out of a breach of the Fixed Charge Coverage Ratio financial covenant covenants set forth in Article 7 Schedule F (the “Specified Financial Covenants”) if they receive the cash proceeds of an investment of Curative Equity within 10 on or before the date that is ten (10) Business Days after the date that is the earlier to occur of (i) the date on which the Fixed Charge Coverage Ratio Compliance Certificate is first delivered to Lender in respect of the Covenant Compliance Period with respect to which any such breach occurred (the “Specified Covenant Compliance Period”), and (ii) the date on which the Compliance Certificate is required to be tested delivered to Lender pursuant to Section 5.15(c) in respect of the terms hereofSpecified Covenant Compliance Period (such earlier date, the “Financial Statement Delivery Date”); provided, that Loan Party Obligors’ right to so cure an Event of Default shall be contingent on their timely delivery of such Compliance Certificate and financial statements for the Specified Covenant Compliance Period as required under Section 5.15. (b) Borrowers In connection with a cure of an Event of Default under this 7.4, on or before the Financial Statement Delivery Date for the Specified Covenant Compliance Period, Loan Party Obligors shall deliver to Lender a certification of the principal financial officer of Administrative Borrower which contains, or Loan Party Obligors shall include in the Compliance Certificate for the Specified Covenant Compliance Period: (i) an indication that Loan Party Obligors will receive proceeds of Curative Equity for the Specified Covenant Compliance Period and a statement setting forth the anticipated amount of such proceeds, (ii) a calculation of the financial results or prospective financial results of Loan Party Obligors for the Specified Covenant Compliance Period (including for such purposes the proceeds of the Curative Equity (broken out separately) as deemed EBITDA as if received on such date), which shall confirm that on a pro forma basis after taking into account the receipt of the Curative Equity proceeds, Loan Party Obligors would have been or will be in compliance with the Specified Financial Covenants for the Specified Covenant Compliance Period, and (iii) a certification that any amount of the cash proceeds of the Curative Equity in excess of the amount that is sufficient to cause Loan Party Obligors to be in compliance with the Specified Financial Covenants for the Specified Covenant Compliance Period shall not be included in the calculation of EBITDA for any fiscal quarter. (c) Loan Party Obligors shall promptly notify Agent Lender of its receipt of any proceeds of Curative Equity (and any investment of Curative Equity shall be in immediately available funds. (c) Upon delivery of a certificate by Administrative Borrower to Agent as to apply the full amount of the cash proceeds of such Curative Equity and that such amount complies with the provisions of this Section 9.3, then any Event of Default that occurred and is continuing from a breach equity investment made by Parent to the payment of the Fixed Charge Coverage Ratio shall be deemed cured with no further action required by the Required Lenders. Prior to the date of the delivery of a certificate conforming to the requirements of this Section, any Event of Default that has occurred as a result of a breach of the Fixed Charge Coverage Ratio shall be deemed to be continuing and, as a result, the Lenders (including the Swing Lender and the Issuing Banks) shall have no obligation to make additional Loans or otherwise extend additional credit hereunder. In the event Holdings and Borrowers do not cure all financial covenant violations as provided in this Section 9.3, the existing Event of Default shall continue unless waived in writing by the Required Lenders in accordance herewith. (d) Notwithstanding anything to the contrary contained Obligations in the foregoing or this Agreement, (i) Holdings and Borrowers’ rights under this manner specified in Section 9.3 may (A) be exercised not more than five (5) times during the term of this Agreement, (B) not be exercised unless in each four fiscal quarter period, there shall be a period of two fiscal quarters in which no Curative Equity is contributed pursuant hereto, (ii) the Curative Equity contributed in any month shall be no greater than the amount required to cause Borrowers to be in pro forma compliance with the Fixed Charge Coverage Ratio for the applicable period, and (iii) the Curative Equity shall be disregarded for purposes of determining Consolidated Adjusted EBITDA for any pricing, financial covenant based conditions or any baskets with respect to the covenants contained in this Agreement and there shall be no pro forma reduction in Indebtedness with the proceeds of any Curative Equity for determining compliance with the Fixed Charge Coverage Ratio or for determining any pricing, financial covenant based conditions or baskets with respect to the covenants contained in this Agreement, in each case in the quarter in which such Curative Equity is used4.2).

Appears in 1 contract

Samples: Loan and Security Agreement (Janel Corp)

Curative Equity. (a) At the election of Administrative Borrower upon written notice to Agent and subject 10.6.1. Subject to the limitations set forth in clause (de) below, Holdings and Borrowers Borrower may cure (and shall be deemed to have cured) an Event of Default arising out of a breach of any of the Fixed Charge Coverage Ratio financial covenant covenants set forth in Article 7 Sections 9.3.1 and 9.3.2 (the “Specified Financial Covenants”) if they receive it receives the cash proceeds of an investment of Curative Equity within 10 Business Days after the applicable date on which the Fixed Charge Coverage Ratio is Specified Financial Covenants are first required to be tested pursuant to the terms hereof. (b) Borrowers 10.6.2. Borrower shall promptly notify Agent Lender of its receipt of any proceeds of Curative Equity (and any shall immediately apply the same to the payment of the Obligations in the manner specified in Section 5.3). 10.6.3. Any investment of Curative Equity shall be in immediately available fundsfunds and, subject to the limitations set forth in Section 10.6.5 below, shall be in an amount that is sufficient to cause Borrower to be in compliance with the applicable Specified Financial Covenant after giving effect to such Curative Equity. (c) 10.6.4. Upon delivery of a certificate by Administrative Borrower to Agent Lender as to the amount of the proceeds of such Curative Equity and that such amount complies (i) has been applied in accordance with Section 10.6.2 above, and (ii) is in an amount equal to or greater than the provisions of this amount required by Section 9.310.6.3 above, then any Event of Default that occurred and is continuing from a breach of any of the Fixed Charge Coverage Ratio Specified Financial Covenants shall be deemed cured with no further action required by the Required LendersLender. Prior to the date of the delivery of a certificate conforming to the requirements of this Section, any Event of Default that has occurred as a result of a breach of any of the Fixed Charge Coverage Ratio Specified Financial Covenants shall be deemed to be continuing and, as a result, the Lenders (including the Swing Lender and the Issuing Banks) shall have no obligation to make additional Loans or otherwise extend additional credit hereunder. In the event Holdings and Borrowers do Borrower does not cure all financial covenant violations as provided in this Section 9.310.6, the existing Event Event(s) of Default shall continue unless waived in writing by the Required Lenders in accordance herewithLender. (d) 10.6.5. Notwithstanding anything to the contrary contained in the foregoing or this Agreement, (i) Holdings and Borrowers’ rights under this Section 9.3 may (A) be exercised not more than five (5) times during the term of this Agreement, (B) not be exercised unless in each four fiscal quarter period, there shall be a period of two fiscal quarters in which no Curative Equity is contributed pursuant hereto, (ii) the Curative Equity contributed in any month fiscal quarter shall be no greater than the amount required to cause Borrowers Borrower to be in pro forma compliance with the Fixed Charge Coverage Ratio for Specified Financial Covenants as at the applicable periodend of such fiscal quarter, and (iiiii) the Curative Equity shall be disregarded for purposes of determining Consolidated Adjusted EBITDA for any pricing, other financial covenant based conditions or any baskets with respect to the covenants contained in this Agreement and there shall be no pro forma reduction in Indebtedness Debt with the proceeds of any Curative Equity for determining compliance with the Fixed Charge Coverage Ratio Specified Financial Covenants or for determining any pricing, other financial covenant based conditions or baskets with respect to the covenants contained in this Agreement, in each case in the quarter in which such Curative Equity is used.

Appears in 1 contract

Samples: Loan and Security Agreement (Revolution Lighting Technologies, Inc.)

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Curative Equity. (ai) At the election of Administrative Borrower upon written notice to Agent and subject Subject to the limitations set forth in clause (dvi) below, Holdings and Borrowers may cure (and shall be deemed to have cured) an Event of a potential Default arising out of a breach of any of the Fixed Charge Coverage Ratio financial covenant covenants set forth in Article 7 if they receive Sections 7.03(a), (b) or (c) (the cash proceeds “Specified Financial Covenants”) (as the case may be) by way of an investment of Curative Equity within 10 Business Days after prior to the date on which the Fixed Charge Coverage Ratio compliance certificate is first required delivered to be tested the Collateral Agent pursuant to Section 7.01(a)(iv) in respect of the terms hereoffiscal quarter with respect to which any such breach occurred; provided that Holdings’ right to inject such proceeds and have the effects set forth in this Section shall be contingent on the timely delivery of such compliance certificate as required under Section 7.01(a)(iv). Neither a Default nor an Event of Default shall be deemed to have occurred as a result of a breach of the Specified Financial Covenant(s) until the period for injecting Curative Equity has elapsed unless, in any such case, Holdings would not be permitted to inject Curative Equity as a result of the limitations set forth in clause (vi) below. (bii) Borrowers The Borrower shall promptly notify the Collateral Agent of its receipt of any proceeds of Curative Equity (and shall immediately apply the same in accordance with Section 2.05(c)(viii)). (iii) Subject to the limitations set forth in clause (vi) below, any investment injection of Curative Equity shall be in immediately available fundsan amount that is sufficient to cause the Parent and its Subsidiaries to be in compliance with all of the Specified Financial Covenants as at the last day of the most recently ended fiscal quarter, calculated for such purpose as if such amount were additional Consolidated EBITDA of the Parent as at such date and had been included in the financial calculations of the Parent on such date. (civ) Upon delivery In the compliance certificate delivered pursuant to Section 7.01(a)(iv) in respect of the fiscal quarter end on which Curative Equity is used to cure any breach of the Specified Financial Covenants, the Parent shall (i) include evidence of the Borrower’s receipt of Curative Equity proceeds, and (ii) set forth a certificate by Administrative Borrower to Agent calculation of the financial results and balance sheet of the Parent and its Subsidiaries as to the amount of at such fiscal quarter end (including for such purposes the proceeds of such Curative Equity as deemed Consolidated EBITDA as if received on such date), which shall confirm that on a pro forma basis taking into account the application of Curative Equity proceeds, the Parent and that its Subsidiaries would have been in compliance with Sections 7.03(a), (b) and (c) (as at such amount complies with date). (v) Upon the provisions Collateral Agent’s acceptance of a compliance certificate pursuant to Section 7.01(a)(iv) conforming to the requirements of this Section 9.3Section, then any Default or Event of Default that would have occurred and is continuing from by virtue of a breach of any of the Fixed Charge Coverage Ratio Specified Financial Covenants shall be deemed cured with no further action required by the Required Lenders. Prior to the date of the delivery of a certificate conforming to the requirements of this Section, any Event of Default that has occurred as a result of a breach of the Fixed Charge Coverage Ratio shall be deemed to be continuing and, as a result, the Lenders (including the Swing Lender and the Issuing Banks) shall have no obligation to make additional Loans or otherwise extend additional credit hereunder. In the event Holdings and Borrowers do not cure all financial covenant violations as provided in this Section 9.3, the existing Event of Default shall continue unless waived in writing by the Required Lenders in accordance herewith. (dvi) Notwithstanding anything to the contrary contained in the foregoing or this Agreementforegoing, (i) Holdings and BorrowersHoldings’ rights under this Section 9.3 7.03(e) may (A) be exercised on not more than five (5) times 2 occasions during the term of this Agreement, (B) not be exercised unless in each four fiscal quarter period, there shall be a period of two fiscal quarters in which no Curative Equity is contributed pursuant heretoany Fiscal Year, (ii) the maximum amount of Curative Equity contributed in any month shall be no greater than the amount required to cause Borrowers permitted to be in pro forma compliance with the Fixed Charge Coverage Ratio for the applicable periodcontributed under this Section 7.03(e) shall not exceed $5,000,000 on any single occasion, and (iii) the sum of Availability plus Qualified Cash immediately after giving effect to the receipt of Curative Equity on any occasion under this Section 7.03(e) shall not be less than $7,500,000. (vii) To the extent that Curative Equity is received and included in the calculation of the Specified Financial Covenants as deemed Consolidated EBITDA for any fiscal quarter pursuant to this Section 7.03(e), such Curative Equity shall be disregarded deemed to be Consolidated EBITDA for purposes of determining Consolidated Adjusted EBITDA for any pricing, financial covenant based conditions or any baskets with respect to the covenants contained in this Agreement and there shall be no pro forma reduction in Indebtedness with the proceeds of any Curative Equity for determining compliance with the Fixed Charge Coverage Ratio or Specified Financial Covenants for determining any pricing, financial covenant based conditions or baskets with respect to the covenants contained in this Agreement, in each case in the quarter in which subsequent periods that include such Curative Equity is usedfiscal quarter.

Appears in 1 contract

Samples: Financing Agreement (Spheris Inc.)

Curative Equity. (a) At Notwithstanding anything to the election of Administrative Borrower upon written notice to Agent and contrary contained in Section 6.01, but subject to the limitations set forth in clause clauses (d) and (e) below, Holdings and Borrowers the Borrower may cure (and shall be deemed to have cured) an Event of Default arising out of a breach of the Fixed Charge Coverage Ratio financial covenant set forth in Article 7 FCCR Financial Covenant if they receive the Borrower receives the cash proceeds of an investment of Curative Equity within 10 on or before the date that is ten (10) Business Days after the date that is the earlier to occur of (i) the date on which the Fixed Charge Coverage Ratio compliance certificate is first delivered to the Administrative Agent in respect of the Fiscal Quarter with respect to which any such breach occurred (the “Specified Fiscal Quarter”), and (ii) the date on which the compliance certificate is required to be tested delivered to the Administrative Agent pursuant to Section 5.03(m) in respect of the terms hereofSpecified Fiscal Quarter (such earlier date, the “Financial Statement Delivery Date”); provided, that the Borrower’s right to so cure an Event of Default shall be contingent on its timely delivery of such compliance certificate and financial statements for the Specified Fiscal Quarter as required under Section 5.03(m). (b) Borrowers In connection with a cure of an Event of Default under this Section 6.03, on or before the Financial Statement Delivery Date for the Specified Fiscal Quarter, the Borrower shall deliver to the Administrative Agent a certification of a Responsible Officer which contains, or the Borrower shall include in the compliance certificate for the Specified Fiscal Quarter: (i) an indication that the Borrower will receive proceeds of Curative Equity for the Specified Fiscal Quarter and a statement setting forth the anticipated amount of such proceeds, (ii) a calculation of the financial results or prospective financial results of the Borrower for the Specified Fiscal Quarter (including for such purposes the proceeds of the Curative Equity (broken out separately) as deemed EBITDA as if received on such date), which shall confirm that on a pro forma basis after taking into account the receipt of the Curative Equity proceeds, the Borrower would have been or will be in compliance with the FCCR Financial Covenant for the Specified Fiscal Quarter, (iii) a certification that the full amount of the cash proceeds of the equity investment made by Holdings or other then existing shareholders of Holdings in connection with such cure of the Event of Default shall be used to prepay the Obligations in accordance with Section 2.06(b)(iv), regardless of whether the amount of such cash proceeds is in excess of the amount that is sufficient to cause the Borrower to be in compliance with the FCCR Financial Covenant for the Specified Fiscal Quarter, and (iv) a certification that any amount of the cash proceeds of the equity investment in excess of the amount that is sufficient to cause the Borrower to be in compliance with the FCCR Financial Covenant for the Specified Fiscal Quarter shall not be included in the calculation of EBITDA for any Fiscal Quarter. (c) The Borrower shall promptly notify the Administrative Agent of its receipt of any proceeds of Curative Equity (and any shall immediately apply the full amount of the cash proceeds of the equity investment made by Holdings or other than existing shareholders of Holdings to the payment of the Obligations in the manner specified in Section 2.06(b)(iv)). (d) Any investment of Curative Equity shall be in immediately available fundsfunds and shall be in an amount that is sufficient to cause the Borrower to be in compliance with the FCCR Financial Covenant for the Specified Fiscal Quarter, calculated for such purpose as if such amount of Curative Equity were additional EBITDA of the Borrower as at such date. (ce) Upon delivery Notwithstanding anything to the contrary contained herein, regardless of a certificate by Administrative whether an investment of Curative Equity is made prior to the applicable Financial Statement Delivery Date, the Borrower’s rights under this Section 6.03 may (i) be exercised not more than five (5) times during the term of this Agreement, and (ii) not be exercised more than two (2) times in any four (4) Fiscal Quarter period. Regardless of whether an investment of Curative Equity is made prior to the applicable Financial Statement Delivery Date, any amount of Curative Equity that is in excess of the amount sufficient to cause the Borrower to Agent be in compliance with the Specified Financial Covenant as at such date shall not constitute Curative Equity (but shall be required to be used to prepay the Obligations in accordance with Section 2.06(b)(iv)). (f) If the Borrower has (i) delivered a certification or a compliance certificate conforming to the amount requirements of the Section 6.03(b), and (ii) received proceeds of such an investment of Curative Equity in immediately available funds on or before the deadline set forth in Section 6.03(a) and in an amount that such amount complies is sufficient to cause the Borrower to be in compliance with the provisions of this Section 9.3FCCR Financial Covenant for the Specified Fiscal Quarter, then any Event of Default that occurs or has occurred and is continuing from as a result of a breach of the Fixed Charge Coverage Ratio FCCR Financial Covenant for the Specified Fiscal Quarter shall be deemed cured with no further action required by the Required Lenders. Prior to the date satisfaction of the delivery of a certificate conforming to the foregoing requirements of this SectionSection 6.03(f), any Event of Default that occurs or has occurred as a result of a breach of the Fixed Charge Coverage Ratio FCCR Financial Covenant shall be deemed to be continuing and, as a result, the Lenders (including the Swing Lender Line Bank and the Issuing BanksBank) shall have no obligation to make additional Loans Advances or otherwise extend additional credit hereunder. In the event Holdings and Borrowers do the Borrower does not cure all financial covenant violations as provided in this Section 9.36.03, the existing Event Event(s) of Default shall continue unless waived in writing by the Required Lenders in accordance herewith. (dg) Notwithstanding anything to To the contrary contained in the foregoing or this Agreement, (i) Holdings and Borrowers’ rights under this Section 9.3 may (A) be exercised not more than five (5) times during the term of this Agreement, (B) not be exercised unless in each four fiscal quarter period, there shall be a period of two fiscal quarters in which no extent that Curative Equity is contributed received and included in the calculation of the FCCR Financial Covenant as deemed EBITDA for any Fiscal Quarter pursuant heretoto this Section 6.03, (ii) the such Curative Equity contributed in any month shall be no greater than the amount required to cause Borrowers deemed to be in pro forma EBITDA for purposes of determining compliance with the Fixed Charge Coverage Ratio FCCR Financial Covenant for the applicable period, and (iii) the subsequent periods that include such Fiscal Quarter. Curative Equity shall be disregarded for purposes of determining Consolidated Adjusted EBITDA for any pricing, financial covenant based conditions or any baskets with respect to the covenants contained in this Agreement and there Agreement. In addition, notwithstanding any mandatory prepayment of Obligations pursuant to Section 2.06(b)(iv), any Obligations so prepaid shall be no deemed to remain outstanding for purposes of determining pro forma reduction in Indebtedness with the proceeds of any Curative Equity for determining or actual compliance with the Fixed Charge Coverage Ratio FCCR 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 in the quarter in which Specified Fiscal Quarter or subsequent periods that include such Curative Equity is usedSpecified Fiscal Quarter.

Appears in 1 contract

Samples: Asset Based Loan Credit Agreement (Express, Inc.)

Curative Equity. (a) At the election of Administrative Borrower upon written notice to Agent and subject Subject to the limitations set forth in clause (df) below, Holdings and Borrowers may cure (and shall be deemed to have cured) an Event of Default arising out of a breach of any of the Fixed Charge Coverage Ratio financial covenant set forth in Article 7 Specified Financial Covenants if they receive the cash proceeds of an investment of Curative Equity within 10 Business Days after the date on which the Fixed Charge Coverage Ratio Compliance Certificate is first required to be tested delivered to Agent pursuant to Section 5.1 in respect of the terms hereoffiscal quarter with respect to which any such breach occurred; (the Curative Equity received by Borrowers to comply with the Recurring Revenue Financial Covenant, the “Recurring Revenue Equity Contribution” and the Curative Equity received by Borrowers to comply with the EBITDA Financial Covenant or the Total Leverage Financial Covenant, the “EBITDA Equity Contribution”). (b) Borrowers shall promptly notify Agent of its their receipt of any proceeds of Curative Equity and any Equity. (c) Any investment of Curative Equity shall be in immediately available fundsfunds and, subject to the limitations set forth in clause (f) below, shall be in an amount that is sufficient to cause Borrowers to be in compliance with the applicable Specified Financial Covenant as at the last day of the most recently ended fiscal quarter, calculated for such purpose as if such amount of the EBITDA Equity Contribution were additional Consolidated EBITDA or such amount of the Recurring Revenue Equity Contribution were additional Recurring Revenue (as applicable) of Borrowers as at such date. (cd) In the Compliance Certificate delivered pursuant to Section 5.1 in respect of the fiscal quarter end for which Curative Equity is used, the Borrowers shall set forth a calculation of the EBITDA Equity Contribution as deemed Consolidated EBITDA or the Recurring Revenue Equity Contribution as deemed Recurring Revenue (as applicable), which shall confirm that on a pro forma basis after taking into account the receipt of the Curative Equity proceeds, Borrowers would have been in compliance with the applicable Specified Financial Covenant as of such date. (e) Upon delivery of a certificate by Administrative Borrower Compliance Certificate pursuant to Agent as Section 5.1 conforming to the amount of the proceeds of such Curative Equity and that such amount complies with the provisions requirements of this Section 9.3, then any Event of Default that occurred and is continuing from a breach receipt by Borrower of the Fixed Charge Coverage Ratio Curative Equity Proceeds, the Borrowers shall be deemed to have satisfied the applicable Specified Financial 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 the applicable Specified Financial Covenant that had occurred shall be deemed cured for the purposes of this Agreement with no further action required by the Required Lenders. Prior to the date of the delivery of a certificate Compliance Certificate pursuant to Section 5.1 conforming to the requirements of this Section, any Event of Default that has occurred as a result of a breach Section and receipt by Borrowers of the Fixed Charge Coverage Ratio shall be deemed to be continuing and, as a resultCurative Equity Proceeds, the Lenders (including the Swing Lender and the Issuing BanksBank) shall have no obligation to make additional Loans or otherwise extend additional credit hereunder. In the event Holdings and Borrowers do not cure all financial covenant violations any applicable Specified Financial Covenant defaults as provided in this Section 9.3, the existing Event Event(s) of Default shall continue unless waived in writing by the Required Lenders in accordance herewith. (df) Notwithstanding anything to the contrary contained in the foregoing or this Agreementforegoing, (i) Holdings and Borrowers’ rights under this Section 9.3 may (Ai) be exercised not more than five (5A) 5 times during the term of this Agreement, Agreement with respect to the EBITDA Equity Contribution and (B) not 2 times during the term of this Agreement with respect to the Recurring Revenue Equity Contribution, and (ii) only be exercised unless to the extent that in each four fiscal quarter period, there shall be a period of at least two fiscal quarters in respect of which no Curative Equity is contributed pursuant hereto, (ii) the made. Any amount of Curative Equity contributed that is in any month shall be no greater than excess of the amount required sufficient to cause Borrowers to be in pro forma compliance with the Fixed Charge Coverage Ratio applicable Specified Financial Covenant as at such date shall not constitute Curative Equity and the aggregate amount of the Recurring Revenue Equity Contributions made during the term of this Agreement shall be no more than 10% of the TTM Recurring Revenue for any trailing twelve month in which the applicable period, and (iii) the Recurring Revenue Equity Contribution is made. Curative Equity shall be disregarded for purposes of determining Consolidated Adjusted EBITDA or Recurring Revenue for any pricing, financial covenant based conditions or any baskets with respect to the covenants contained in this Agreement and there shall be no pro forma reduction in Indebtedness with the proceeds of any Curative Equity for purposes of determining compliance with the Fixed Charge Coverage Ratio Specified 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 in the quarter in which such Curative Equity is used. (g) To the extent that Curative Equity is received and included in the calculation of the Specified Financial Covenant as deemed Consolidated EBITDA or deemed Recurring Revenue (as applicable) for any fiscal quarter pursuant to this Section 9.3, such Curative Equity shall be deemed to be Consolidated EBITDA or Recurring Revenue (as applicable) for purposes of determining compliance with the Specified Financial Covenant for subsequent periods that include such fiscal quarter. In addition, notwithstanding any mandatory prepayment of Obligations pursuant to Section 2.4(e)(vi), any Indebtedness so prepaid shall be deemed to remain outstanding for purposes of determining pro forma or actual compliance with the Specified 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 in such fiscal quarter and any subsequent periods that include such fiscal quarter.

Appears in 1 contract

Samples: Credit Agreement (Paycor Hcm, Inc.)

Curative Equity. (a) At the election of Administrative Borrower upon written notice to Agent and subject Subject to the limitations set forth in clause (de) below, Holdings and Borrowers may cure (and shall be deemed to have cured) an Event of Default arising out of a breach of any of the Fixed Charge Coverage Ratio financial covenant covenants set forth in Article clause (a) of Section 7 (the “Specified Financial Covenant”) if they receive the cash proceeds of an investment of Curative Equity within 10 Business Days after the date on which the Fixed Charge Coverage Ratio Specified Financial Covenant is first required to be tested pursuant to the terms hereof. (b) Borrowers shall promptly notify Agent of its receipt of any proceeds of Curative Equity (and any shall immediately apply the same to the payment of the Obligations in the manner specified in Section 2.4(e)(vii)). (c) Any investment of Curative Equity shall be in immediately available fundsfunds and, subject to the limitations set forth in clause (e) below, shall be in an amount that is sufficient to (i) cause Borrowers’ Availability to be in excess of $15,000,000; and (ii) cause Borrowers to be in compliance with the Specified Financial Covenant as at the end of such fiscal quarter. (cd) Upon delivery of a certificate by Administrative Borrower Borrowers to Agent as to the amount of the proceeds of such Curative Equity and that such amount complies (i) has been applied in accordance with clause (b) above, and (ii) is in an amount equal to or greater than the provisions of this Section 9.3amount required by clause (c) above, then any Event of Default that occurred and is continuing from a breach of the Fixed Charge Coverage Ratio Specified Financial Covenant solely for that one 12 month period ended as of the end of the fiscal quarter for which such Curative Equity was invested (and not any future 12 month periods) such shall be deemed cured with no further action required by the Required Lenders. Prior to the date of the delivery of a certificate conforming to the requirements of this Section, any Event of Default that has occurred as a result of a breach of the Fixed Charge Coverage Ratio Specified Financial Covenant shall be deemed to be continuing and, as a result, the Lenders (including the Swing Lender and the Issuing BanksBank) shall have no obligation to make additional Loans loans or otherwise extend additional credit hereunder. In the event Holdings and Borrowers do not cure all financial covenant violations as provided in this Section 9.3, the existing Event Event(s) of Default shall continue unless waived in writing by the Required Lenders in accordance herewith. (de) Notwithstanding anything to the contrary contained in the foregoing or this Agreement, (i) Holdings and Borrowers’ rights under this Section 9.3 may (A) be exercised not more than five (5) 3 times during the term of this Agreement, (B) not be exercised unless in each four fiscal quarter twice within any 180 day period, there shall (C) not be a period exercised if the amount of two fiscal quarters in which no the proposed investment of Curative Equity, together with the amount of all prior investments of Curative Equity, exceeds $30,000,000, (D) not be exercised if the amount of the proposed investment of Curative Equity is contributed pursuant heretoexceeds $10,000,000, (ii) the Curative Equity contributed in any month fiscal quarter shall be no greater than in an amount equal to the amount required to cause Borrowers to be in pro forma compliance with the Fixed Charge Coverage Ratio for Specified Financial Covenant as at the applicable periodend of such fiscal quarter, and (iii) the Curative Equity shall be disregarded for purposes of determining Consolidated Adjusted EBITDA for any pricing, financial covenant based conditions or any baskets with respect to the covenants contained in this Agreement and there shall be no pro forma reduction in Indebtedness with the proceeds of any Curative Equity for determining compliance with the Fixed Charge Coverage Ratio Specified 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 in the quarter in which such Curative Equity is used.

Appears in 1 contract

Samples: Credit Agreement (Erickson Air-Crane Inc.)

Curative Equity. (a) At the election of Administrative Borrower upon written notice to Agent and subject Subject to the limitations set forth in clause (d) below, Holdings and Borrowers may any holder of Equity Interests of any Borrower or any direct or indirect parent of the Borrower Agent shall have the right to cure (and shall be deemed to have cured) an Event of Default arising out of a breach of the Fixed Charge Coverage Ratio financial covenant set forth in Article 7 any Financial Covenant (any such breach a “Financial Covenant Default”) if they Borrowers receive the cash proceeds of an investment of Curative Equity within 10 Business Days after the date on which the Fixed Charge Coverage Ratio is first fifteen (15) BN 78147568v17 (a) Error! Reference source not found. are required to be tested pursuant to delivered in respect of the terms hereofTest Period for which such financial covenant is being measured in accordance with Section 10.1.2 (the “Cure Expiration Date”). (b) Borrowers Borrower Agent shall promptly notify Agent of its receipt of any proceeds of Curative Equity (and shall immediately apply the same to the payment of first to the Term Loan, the Capital Expenditure Loans, the Equipment Loan and the DDTLs (on a pro rata basis), second to the Revolver Loans (without reduction of the Revolver Commitment), and third to Cash Collateralize outstanding Letters of Credit, and finally to other Obligations) by any investment Borrower; provided that failure to notify the Agent thereof shall not affect the validity of any Curative Equity shall be in immediately available fundsreceived by any Borrower or Holdings on or before the Cure Expiration Date; provided, further, that Agent may exercise remedies under Section 11.2 after the Cure Expiration Date if Agent has not received notice of the Curative Equity until the Agent is so notified. (c) Upon delivery of a certificate by Administrative Borrower to Agent as to the amount of the proceeds of such The Curative Equity shall be treated on a dollar-for-dollar basis as Adjusted EBITDA or Liquidity, as applicable, of Holdings and that such amount complies with the provisions of this Section 9.3, then any Borrowers for the applicable Fiscal Quarter in which the applicable Event of Default that has occurred (and is continuing from a breach of the Fixed Charge Coverage Ratio shall be deemed cured for any subsequent Test Period which includes such Fiscal Quarter) with no further action required by any party to this Agreement. Neither the Required Lenders. Prior Agent nor any Lender may take any action to foreclose on, or take possession of, the Collateral, accelerate any Obligations, terminate any Commitments or otherwise exercise any rights or remedies under Section 11.2 (or under any other Loan Document) or under any Applicable Laws on the basis of any actual or purported Financial Covenant Default until the date on which the Cure Expiration Date has occurred without the Curative Equity having been received by any Borrower or Holdings; provided that, during such time, no Lender shall be required to make any Loan hereunder and no L/C Issuer shall be required to issue any Letter of Credit hereunder. Upon receipt by any Borrower or Holdings of the delivery Curative Equity, each applicable Financial Covenant shall be deemed to be satisfied and complied with as of a certificate conforming the end of the relevant Fiscal Quarter with the same effect as though there had been no failure to the requirements of this Section, comply with such Financial Covenant and any Event of Financial Covenant Default that has would have occurred as a result of a breach the failure to satisfy such Financial Covenant shall be deemed not to have occurred for purposes of the Fixed Charge Coverage Ratio Loan Documents. In the event no Borrower or Holdings receives the Curative Equity on or before the Cure Expiration Date, an applicable Financial Covenant Default shall be deemed to be continuing and, as a result, the Lenders (including the Swing Lender have occurred and the Issuing Banks) shall have no obligation to make additional Loans or otherwise extend additional credit hereunder. In the event Holdings and Borrowers do not cure all financial covenant violations as provided in this Section 9.3, the existing Event of Default shall will continue unless waived in writing by the Required Lenders in accordance herewith. (d) Notwithstanding anything to the contrary contained in the foregoing or this Agreement, (i) Holdings Holdings’ and Borrowers’ rights under this Section 9.3 may (A) be exercised not more than five (5) times during the term of this Agreement, (B) not be exercised unless in each four fiscal quarter period, there shall be a period of two fiscal quarters in which no Curative Equity is contributed pursuant hereto, (ii) the Curative Equity contributed in any month shall be no greater than the amount required to cause Borrowers to be in pro forma compliance with the Fixed Charge Coverage Ratio for the applicable period, and (iii) the Curative Equity shall be disregarded for purposes of determining Consolidated Adjusted EBITDA for any pricing, financial covenant based conditions or any baskets with respect to the covenants contained in this Agreement and there shall be no pro forma reduction in Indebtedness with the proceeds of any Curative Equity for determining compliance with the Fixed Charge Coverage Ratio or for determining any pricing, financial covenant based conditions or baskets with respect to the covenants contained in this Agreement, in each case in the quarter in which such Curative Equity is used.BN 78147568v17

Appears in 1 contract

Samples: Loan and Security Agreement (Vintage Wine Estates, Inc.)

Curative Equity. (a) At the election of Administrative Borrower upon written notice to Agent and subject Subject to the limitations set forth in clause (de) below, Holdings and Borrowers may cure (and shall be deemed to have cured) an Event of Default arising out of a breach of any of the Fixed Charge Coverage Ratio financial covenant set forth in Article Section 7 (the “Specified Financial Covenant”) if they receive the cash proceeds of an investment of Curative Equity within 10 Business Days after the date on which the Fixed Charge Coverage Ratio Specified Financial Covenant is first required to be tested pursuant to the terms hereof. (b) Borrowers shall promptly notify Agent of its receipt of any proceeds of Curative Equity (and any shall immediately apply the same to the payment of the Obligations in the manner specified in Section 2.4(e)(iii)). (c) Any investment of Curative Equity shall be in immediately available funds. (cd) Upon delivery of a certificate by Administrative Borrower Borrowers to Agent as to the amount of the proceeds of such Curative Equity and that such amount complies (i) has been applied in accordance with clause (b) above, and (ii) is in an amount equal to or greater than the provisions of this Section 9.3amount required by clause (c) above, then any Event of Default that occurred and is continuing from a breach of any of the Fixed Charge Coverage Ratio Specified Financial Covenant shall be deemed cured with no further action required by the Required Lenders. Prior to the date of the delivery of a certificate conforming to the requirements of this Section, any Event of Default that has occurred as a result of a breach of any of the Fixed Charge Coverage Ratio Specified Financial Covenant shall be deemed to be continuing and, as a result, the Lenders (including the Swing Lender and the Issuing BanksBank) shall have no obligation to make additional Loans loans or otherwise extend additional credit hereunder. In the event Holdings and Borrowers do not cure all financial covenant violations as provided in this Section 9.3, the existing Event Event(s) of Default shall continue unless waived in writing by the Required Lenders in accordance herewith. (de) Notwithstanding anything to the contrary contained in the foregoing or this Agreement, (i) Holdings and Borrowers’ rights under this Section 9.3 may (A) not be exercised on or prior to the fiscal quarter ended June 25, 2016, (B) be exercised not more than five three (53) times during the term of this Agreement, (BC) not be exercised unless in each four fiscal quarter twice within any 180 day period, there shall (D) not be a period exercised if the amount of two fiscal quarters in which no the proposed investment of Curative Equity, together with the amount of all prior investments of Curative Equity, exceeds $10,000,000, (E) not be exercised if the amount of the proposed investment of Curative Equity is contributed pursuant heretoexceeds $2,000,000, (ii) the Curative Equity contributed in any month fiscal quarter shall be no greater than the amount required to cause Borrowers to be in pro forma compliance with the Fixed Charge Coverage Ratio for Specified Financial Covenant as at the applicable periodend of such fiscal quarter, and (iii) the Curative Equity shall be disregarded for all purposes under the Loan Documents other than curing the breach of the Specified Financial Covenant for such fiscal quarter, including for purposes of determining Consolidated Adjusted EBITDA for any pricing, financial covenant based conditions or any baskets with respect to the covenants contained in this Agreement and there shall be no pro forma reduction in Indebtedness with the proceeds of any Curative Equity for determining compliance with the Fixed Charge Coverage Ratio any of the financial covenants set forth in Section 7 or for any other purpose under the Loan Documents, including determining any pricing, financial covenant based conditions or baskets with respect to the covenants contained in this Agreement, in each case in the quarter in which such Curative Equity is used, but shall be added to EBITDA solely for purposes of calculating compliance with the Specified Financial Covenant.

Appears in 1 contract

Samples: Credit Agreement (Inventure Foods, Inc.)

Curative Equity. (a) At the election of Administrative Borrower upon written notice to Agent and subject Subject to the limitations set forth in clause clauses (d) and (e) below, Holdings and Borrowers may cure (and shall be deemed to have cured) an Event of Default arising out of a breach of the Fixed Charge Coverage Ratio financial covenant set forth in Article Section 7 (the "Specified Financial Covenant") if they receive the cash proceeds of an investment of Curative Equity within 10 Business Days on or before the date that is ten days after the date that is the earlier to occur of (i) the date on which the Fixed Charge Coverage Ratio Compliance Certificate is first delivered to Agent in respect of the fiscal month with respect to which any such breach occurred (the "Specified Fiscal Month"), and (ii) the date on which the Compliance Certificate is required to be tested delivered to Agent pursuant to Section 5.1 in respect of the terms hereofSpecified Fiscal Month (such earlier date, the "Financial Statement Delivery Date"); provided, that Borrowers' right to so cure an LEGAL_US_W # 82509300.31 Event of Default shall be contingent on their timely delivery of such Compliance Certificate and financial statements for the Specified Fiscal Month as required under Section 5.1. (b) In connection with a cure of an Event of Default under this Section 9.3, on or before the Financial Statement Delivery Date for the Specified Fiscal Month, Borrowers shall deliver to Agent a certification of an Authorized Person which contains, or Borrowers shall include in the Compliance Certificate for the Specified Fiscal Month: (i) an indication that Borrowers will receive proceeds of Curative Equity for the Specified Fiscal Month and a statement setting forth the anticipated amount of such proceeds, (ii) a calculation of the financial results or prospective financial results of Borrowers for the Specified Fiscal Month (including for such purposes the proceeds of the Curative Equity (broken out separately) as deemed EBITDA as if received on such date), which shall confirm that on a pro forma basis after taking into account the receipt of the Curative Equity proceeds, Borrowers would have been or will be in compliance with the Specified Financial Covenant for the Specified Financial Month, (iii) a certification that the full amount of the cash proceeds of the equity investment in Qualified Equity Interest made by Sponsor or other then existing shareholders of Parent in connection with such cure of the Event of Default shall be used to prepay the Obligations in accordance with Section 2.4(e)(ii), regardless of whether the amount of such cash proceeds is in excess of the amount that is sufficient to cause Borrowers to be in compliance with the Specified Financial Covenant for the Specified Fiscal Month, and (iv) a certification that any amount of the cash proceeds of the equity investment in excess of the amount that is sufficient to cause Borrowers to be in compliance with the Specified Financial Covenant for the Specified Fiscal Month shall not be included in the calculation of EBITDA for any fiscal month. (c) Borrowers shall promptly notify Agent of its receipt of any proceeds of Curative Equity (and any shall immediately apply the full amount of the cash proceeds of the equity investment made by the than existing shareholders of Parent to the payment of the Obligations in the manner specified in Section 2.4(e)(ii)). (d) Any investment of Curative Equity shall be in immediately available fundsfunds and shall be in an amount that is sufficient to but not greater than the amount necessary to cause Borrowers to be in compliance with the Specified Financial Covenant for the Specified Fiscal Month, calculated for such purpose as if such amount of Curative Equity were additional EBITDA of Borrowers, on a Consolidated basis, as at such date. (ce) Upon delivery of a certificate by Administrative Borrower to Agent as Notwithstanding anything to the amount contrary contained herein, regardless of whether an investment of Curative Equity is made prior to the applicable Financial Statement Delivery Date, Borrowers' rights under this Section 9.3 may (i) be exercised not more than 5 times during the term of this Agreement, and (ii) not be exercised more than 3 times during any 12 consecutive fiscal months. (f) If Borrowers have (i) delivered a certification or a Compliance Certificate conforming to the requirements of Section 9.3(b), and (ii) received proceeds of such an investment of Curative Equity in immediately available funds on or before the deadline set forth in Section 9.3(a) and in an amount that such amount complies is sufficient to cause Borrowers to be in compliance with the provisions of this Section 9.3Specified Financial Covenant for the Specified Fiscal Month, then any Event of Default that occurs or has occurred and is continuing from as a result of a breach of the Fixed Charge Coverage Ratio Specified Financial Covenant for the Specified Fiscal Month shall be deemed cured with no further action required by the Required Lenders. Prior to the date satisfaction of the delivery of a certificate conforming to the foregoing requirements of this SectionSection 9.3(f), any Event of Default that occurs or has occurred as a result of a breach of the Fixed Charge Coverage Ratio Specified Financial Covenant shall be deemed to be continuing and, as a result, the Lenders (including the Swing Lender and the Issuing BanksBank) shall have no obligation to make additional Loans loans or otherwise extend additional credit hereunder. In the event Holdings and Borrowers do not cure all LEGAL_US_W # 82509300.31 financial covenant violations as provided in this Section 9.3, the existing Event Event(s) of Default shall continue unless waived in writing by the Required Lenders in accordance herewith. (d) Notwithstanding anything to the contrary contained in the foregoing or this Agreement, (i) Holdings and Borrowers’ rights under this Section 9.3 may (A) be exercised not more than five (5) times during the term of this Agreement, (B) not be exercised unless in each four fiscal quarter period, there shall be a period of two fiscal quarters in which no Curative Equity is contributed pursuant hereto, (ii) the Curative Equity contributed in any month shall be no greater than the amount required to cause Borrowers to be in pro forma compliance with the Fixed Charge Coverage Ratio for the applicable period, and (iii) the Curative Equity shall be disregarded for purposes of determining Consolidated Adjusted EBITDA for any pricing, financial covenant based conditions or any baskets with respect to the covenants contained in this Agreement and there shall be no pro forma reduction in Indebtedness with the proceeds of any Curative Equity for determining compliance with the Fixed Charge Coverage Ratio or for determining any pricing, financial covenant based conditions or baskets with respect to the covenants contained in this Agreement, in each case in the quarter in which such Curative Equity is used.

Appears in 1 contract

Samples: Credit Agreement (Liberty Energy Inc.)

Curative Equity. (a) At the election of Administrative Borrower upon written notice to Agent and subject Subject to the limitations set forth in clause clauses (d) and (e) below, Holdings and Borrowers may cure (and shall be deemed to have cured) an Event of Default arising out of a breach of the Fixed Charge Coverage Ratio financial covenant set forth in Article Section 7 (the “Specified Financial Covenant”) if they receive the cash proceeds of an investment of Curative Equity within 10 Business Days on or before the date that is ten days after the date that is the earlier to occur of (i) the date on which the Fixed Charge Coverage Ratio Compliance Certificate is first delivered to Agent and Lenders in respect of the calendar month with respect to which any such breach occurred (the “Specified Month”), and (ii) the date on which the Compliance Certificate is required to be tested delivered to Agent and Lenders pursuant to Section 5.1 in respect of the terms hereof. Specified Month (bsuch earlier date, the “Financial Statement Delivery Date”); provided, that Borrowers’ right to so cure an Event of Default shall be contingent on their timely delivery of such Compliance Certificate and financial statements for the Specified Month as required under Section 5.1. (de) In connection with a cure of an Event of Default under this Section 9.3, on or before the Financial Statement Delivery Date for the Specified Month, Borrowers shall promptly notify deliver to Agent a certification of its receipt of any an Authorized Person which contains, or Borrowers shall include in the Compliance Certificate for the Specified Month: (i) an indication that Borrowers will receive proceeds of Curative Equity for the Specified Month and any investment a statement setting forth the anticipated amount of such proceeds, (ii) a calculation of the financial results or prospective financial results of Parent Guarantor for the Specified Month (including for such purposes the proceeds of the Curative Equity (broken out separately) as deemed EBITDA as if received on such date), which shall confirm that on a pro forma basis after taking into account the receipt of the Curative Equity proceeds, Loan Parties would have been or will be in immediately available funds. compliance with the Specified Financial Covenant for the Specified Month, (ciii) Upon delivery of a certificate by Administrative Borrower to Agent as to certification that the full amount of the cash proceeds of the equity investment in Qualified Equity Interest made by Sponsor or other then existing shareholders of Parent Guarantor in connection with such Curative Equity and that such amount complies with the provisions of this Section 9.3, then any Event of Default that occurred and is continuing from a breach cure of the Fixed Charge Coverage Ratio shall be deemed cured with no further action required by the Required Lenders. Prior to the date of the delivery of a certificate conforming to the requirements of this Section, any Event of Default that has occurred as a result of a breach of the Fixed Charge Coverage Ratio shall be deemed to be continuing and, as a result, the Lenders (including the Swing Lender and the Issuing Banks) shall have no obligation to make additional Loans or otherwise extend additional credit hereunder. In the event Holdings and Borrowers do not cure all financial covenant violations as provided in this Section 9.3, the existing Event of Default shall continue unless waived in writing by be used to prepay the Required Lenders Obligations in accordance herewith. (d) Notwithstanding anything to the contrary contained in the foregoing or this Agreementwith Section 2.2(d)(v), (i) Holdings and Borrowers’ rights under this Section 9.3 may (A) be exercised not more than five (5) times during the term regardless of this Agreement, (B) not be exercised unless in each four fiscal quarter period, there shall be a period of two fiscal quarters in which no Curative Equity is contributed pursuant hereto, (ii) the Curative Equity contributed in any month shall be no greater than whether the amount required of such cash proceeds is in excess of the amount that is sufficient to cause Borrowers Loan Parties to be in pro forma compliance with the Fixed Charge Coverage Ratio Specified Financial Covenant for the applicable periodSpecified Month, and (iiiiv) a certification that any amount of the Curative Equity cash proceeds of the equity investment in excess of the amount that is sufficient to cause Loan Parties to be in compliance with the Specified Financial Covenant for the Specified Month shall not be disregarded for purposes included in the calculation of determining Consolidated Adjusted EBITDA for any pricing, financial covenant based conditions or any baskets with respect to the covenants contained in this Agreement and there shall be no pro forma reduction in Indebtedness with the proceeds of any Curative Equity for determining compliance with the Fixed Charge Coverage Ratio or for determining any pricing, financial covenant based conditions or baskets with respect to the covenants contained in this Agreement, in each case in the quarter in which such Curative Equity is usedfiscal month.

Appears in 1 contract

Samples: Credit Agreement (Liberty Energy Inc.)

Curative Equity. (a) At the election of Administrative Borrower upon written notice to Agent and subject Subject to the limitations set forth in clause clauses (d) and (e) below, Holdings and Borrowers may cure (and shall be deemed to have cured) an Event of Default arising out of a breach of the Fixed Charge Coverage Ratio financial covenant set forth in Article Section 7 (the “Specified Financial Covenant”) if they receive the cash proceeds of an investment of Curative Equity within 10 Business Days on or before the date that is ten days after the date that is the earlier to occur of (i) the date on which the Fixed Charge Coverage Ratio Compliance Certificate is first delivered to Agent and Lenders in respect of the calendar month with respect to which any such breach occurred (the “Specified Month”), and (ii) the date on which the Compliance Certificate is required to be tested delivered to Agent and Lenders pursuant to Section 5.1 in respect of the terms hereofSpecified Month (such earlier date, the “Financial Statement Delivery Date”); provided, that Borrowers’ right to so cure an Event of Default shall be contingent on their timely delivery of such Compliance Certificate and financial statements for the Specified Month as required under Section 5.1. (b) In connection with a cure of an Event of Default under this Section 9.3, on or before the Financial Statement Delivery Date for the Specified Month, Borrowers shall deliver to Agent a certification of an Authorized Person which contains, or Borrowers shall include in the Compliance Certificate for the Specified Month: (i) an indication that Borrowers will receive proceeds of Curative Equity for the Specified Month and a statement setting forth the anticipated amount of such proceeds, (ii) a calculation of the financial results or prospective financial results of Parent Guarantor for the Specified Month (including for such purposes the proceeds of the Curative Equity (broken out separately) as deemed EBITDA as if received on such date), which shall confirm that on a pro forma basis after taking into account the receipt of the Curative Equity proceeds, Loan Parties would have been or will be in compliance with the Specified Financial Covenant for the Specified Month, (iii) a certification that the full amount of the cash proceeds of the equity investment in Qualified Equity Interest made by Sponsor or other then existing shareholders of Parent Guarantor in connection with such cure of the Event of Default shall be used to prepay the Obligations in accordance with Section 2.2(d)(v), regardless of whether the amount of such cash proceeds is in excess of the amount that is sufficient to cause Loan Parties to be in compliance with the Specified Financial Covenant for the Specified Month, and (iv) a certification that any amount of the cash proceeds of the equity investment in excess of the amount that is sufficient to cause Loan Parties to be in compliance with the Specified Financial Covenant for the Specified Month shall not be included in the calculation of EBITDA for any fiscal month. (c) Borrowers shall promptly notify Agent of its receipt of any proceeds of Curative Equity (and any shall immediately apply the full amount of the cash proceeds of the equity investment made by the than existing shareholders of Liberty to the payment of the Obligations in the manner specified in Section 2.2(d)(v)). (d) Any investment of Curative Equity shall be in immediately available fundsfunds and shall be in an amount that is sufficient to but not greater than the amount necessary to cause Loan Parties to be in compliance with the Specified Financial Covenant for the Specified Month, calculated for such purpose as if such amount of Curative Equity were additional EBITDA of Borrowers, on a Consolidated basis, as at such date. (ce) Upon delivery of a certificate by Administrative Borrower to Agent as Notwithstanding anything to the amount contrary contained herein, regardless of whether an investment of Curative Equity is made prior to the applicable Financial Statement Delivery Date, Borrowers’ rights under this Section 9.3 may (i) be exercised not more than 5 times during the term of this Agreement, and (ii) not be exercised more than 3 times during any 12 consecutive fiscal months. (f) If Borrowers have (i) delivered a certification or a Compliance Certificate conforming to the requirements of Section 9.3(b), and (ii) received proceeds of such an investment of Curative Equity in immediately available funds on or before the deadline set forth in Section 9.3(a) and in an amount that such amount complies is sufficient to cause Loan Parties to be in compliance with the provisions of this Section 9.3Specified Financial Covenant for the Specified Month, then any Event of Default that occurs or has occurred and is continuing from as a result of a breach of the Fixed Charge Coverage Ratio Specified Financial Covenant for the Specified Month shall be deemed cured with no further action required by the Required Lenders. Prior to the date satisfaction of the delivery of a certificate conforming to the foregoing requirements of this SectionSection 9.3(f), any Event of Default that occurs or has occurred as a result of a breach of the Fixed Charge Coverage Ratio Specified Financial Covenant shall be deemed to be continuing and, as a result, the Lenders (including the Swing Lender and the Issuing Banks) shall have no obligation to make additional Loans or otherwise extend additional credit hereundercontinuing. In the event Holdings and Borrowers do not cure all financial covenant violations as provided in this Section 9.3, the existing Event Event(s) of Default shall continue unless waived in writing by the Required Lenders in accordance herewith. (dg) Notwithstanding anything to To the contrary contained in the foregoing or this Agreement, (i) Holdings and Borrowers’ rights under this Section 9.3 may (A) be exercised not more than five (5) times during the term of this Agreement, (B) not be exercised unless in each four fiscal quarter period, there shall be a period of two fiscal quarters in which no extent that Curative Equity is contributed received and included in the calculation of the Specified Financial Covenant as deemed EBITDA for any fiscal month pursuant heretoto this Section 9.3, (ii) the such Curative Equity contributed in any month shall be no greater than the amount required to cause Borrowers deemed to be in pro forma EBITDA for purposes of determining compliance with the Fixed Charge Coverage Ratio Specified Financial Covenant for the applicable period, and (iii) the subsequent periods that include such fiscal month. Curative Equity shall be disregarded for purposes of determining Consolidated Adjusted EBITDA for any pricing, financial covenant based conditions or any baskets with respect to the covenants contained in this Agreement and there Agreement. In addition, notwithstanding any mandatory prepayment of Obligations pursuant to Section 2.2(d)(v), any Indebtedness so prepaid shall be no deemed to remain outstanding for purposes of determining pro forma reduction in Indebtedness with the proceeds of any Curative Equity for determining or actual compliance with the Fixed Charge Coverage Ratio Specified 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 in the quarter in which Specified Month or subsequent periods that include such Curative Equity is usedfiscal month.

Appears in 1 contract

Samples: Credit Agreement (Liberty Oilfield Services Inc.)

Curative Equity. (a) At the election of Administrative Borrower upon written notice to Agent and subject to the limitations set forth in clause (d) below, Holdings and Borrowers may cure (and shall be deemed to have cured) an Event of Default arising out of a breach of the Fixed Charge Coverage Ratio financial covenant set forth in Article 7 if they receive the cash proceeds of an investment of Curative Equity within 10 Business Days after the date on which the Fixed Charge Coverage Ratio is first required to be tested pursuant to the terms hereof. (b) Borrowers shall promptly notify Agent of its receipt of any proceeds of Curative Equity and any investment of Curative Equity shall be in immediately available funds. (c) Upon delivery of a certificate by Administrative Borrower to Agent as to the amount of the proceeds of such Curative Equity and that such amount complies with the provisions of this Section 9.3, then any Event of Default that occurred and is continuing from a breach of the Fixed Charge Coverage Ratio shall be deemed cured with no further action required by the Required Lenders. Prior to the date of the delivery of a certificate conforming to the requirements of this Section, any Event of Default that has occurred as a result of a breach of the Fixed Charge Coverage Ratio shall be deemed to be continuing and, as a result, the Lenders (including the Swing Lender and the Issuing BanksBank) shall have no obligation to make additional Loans or otherwise extend additional credit hereunder. In the event Holdings and Borrowers do not cure all financial covenant violations as provided in this Section 9.3, the existing Event of Default shall continue unless waived in writing by the Required Lenders in accordance herewith. (d) Notwithstanding anything to the contrary contained in the foregoing or this Agreement, (i) Holdings and Borrowers’ rights under this Section 9.3 may (A) be exercised not more than five (5) times during the term of this Agreement, (B) not be exercised unless in each four fiscal quarter period, there shall be a period of two fiscal quarters in which no Curative Equity is contributed pursuant hereto, (ii) the Curative Equity contributed in any month shall be no greater than the amount required to cause Borrowers to be in pro forma compliance with the Fixed Charge Coverage Ratio for the applicable period, and (iii) the Curative Equity shall be disregarded for purposes of determining Consolidated Adjusted EBITDA for any pricing, financial covenant based conditions or any baskets with respect to the covenants contained in this Agreement and there shall be no pro forma reduction in Indebtedness with the proceeds of any Curative Equity for determining compliance with the Fixed Charge Coverage Ratio or for determining any pricing, financial covenant based conditions or baskets with respect to the covenants contained in this Agreement, in each case in the quarter in which such Curative Equity is used.

Appears in 1 contract

Samples: Credit Agreement (Concrete Pumping Holdings, Inc.)

Curative Equity. (a) At the election of Administrative Borrower upon written notice to Agent and subject Subject to the limitations set forth in clause (df) below, Holdings and Borrowers may cure (and shall be deemed to have cured) an Event of Default arising out of a breach of any of the Fixed Charge Coverage Ratio financial covenant covenants set forth in Article clause (a) or (b) of Section 7 (the “Specified Financial Covenants”) if they receive the cash proceeds of an investment of Curative Equity within 10 Business Days after the date that is the earlier to occur of (i) the date on which the Fixed Charge Coverage Ratio Compliance Certificate is first delivered to Agent in respect of the fiscal quarter with respect to which any such breach occurred and (ii) the date on which the Compliance Certificate is required to be tested delivered to Agent pursuant to Section 5.1 in respect of the terms hereoffiscal quarter with respect to which any such breach occurred; provided that Borrowers’ right to so cure an Event of Default shall be contingent on their timely delivery of such Compliance Certificate as required under Section 5.1. On or before the earlier to occur of (i) the date on which the Compliance Certificate is required to be delivered pursuant to Section 5.1 for any fiscal quarter and (ii) the date on which the Compliance Certificate is actually delivered for any fiscal quarter, the Sponsor shall issue to Agent and the Lenders a written binding commitment to make such investment of Curative Equity.”; and (b) Borrowers shall promptly notify Agent of its receipt of any proceeds of Curative Equity (and any shall immediately apply the same to the payment of the Obligations in the manner specified in Section 2.4(e)(vi)). (c) Any investment of Curative Equity shall be in immediately available fundsfunds and, subject to the limitations set forth in clause (f) below, shall be in an amount that is sufficient to cause Borrowers to be in compliance with all of the Specified Financial Covenants as at the last day of the most recently ended fiscal quarter, calculated for such purpose as if such amount of Curative Equity were additional EBITDA of Borrowers as at such date. (cd) Upon delivery In the Compliance Certificate delivered pursuant to Section 5.1 in respect of the fiscal quarter end on which Curative Equity is used to Borrowers shall (i) include evidence of their receipt of Curative Equity proceeds, and (ii) set forth a certificate by Administrative Borrower to Agent calculation of the financial results and balance sheet of Borrowers as to the amount of at such fiscal quarter end (including for such purposes the proceeds of such Curative Equity and (broken out separately) as deemed EBITDA as if received on such date), which shall confirm that such amount complies on a pro forma basis after taking into account the receipt of the Curative Equity proceeds, Borrowers would have been in compliance with the provisions Specified Financial Covenants as of such date. (e) Upon delivery of a Compliance Certificate pursuant to Section 5.1 conforming to the requirements of this Section 9.3Section, then any Event of Default that occurred and is continuing from as a result of a breach of any of the Fixed Charge Coverage Ratio Specified Financial Covenants shall be deemed cured with no further action required by the Required Lenders. Prior to the date of the delivery of a certificate Compliance Certificate pursuant to Section 5.1 conforming to the requirements of this Section, any Event of Default that has occurred as a result of a breach of any of the Fixed Charge Coverage Ratio Specified Financial Covenants shall be deemed to be continuing and, as a result, the Lenders (including the Swing Lender and the Issuing BanksBank) shall have no obligation to make additional Loans loans or otherwise extend additional credit hereunder. In the event Holdings and Borrowers do not cure all financial covenant violations as provided in this Section 9.3, the existing Event Event(s) of Default shall continue unless waived in writing by the Required Lenders in accordance herewith. (df) Notwithstanding anything to the contrary contained in the foregoing or this Agreementforegoing, (i) Holdings and Borrowers’ rights under this Section 9.3 may (Ai) be exercised not more than five (5) 4 times during the term of this Agreement, (Bii) not be exercised unless in each four with respect to consecutive fiscal quarter periodquarters, there shall and (iii) not be a period exercised if the amount of two fiscal quarters in which no the proposed investment of Curative Equity is contributed pursuant hereto, exceeds the lesser of (iiA) the 10% of EBITDA and (B) $1,500,000. Any amount of Curative Equity contributed that is in any month shall be no greater than excess of the amount required sufficient to cause Borrowers to be in pro forma compliance with all of the Fixed Charge Coverage Ratio for the applicable period, and (iii) the Specified Financial Covenants as at such date shall not constitute Curative Equity. Curative Equity shall be disregarded for purposes of determining Consolidated Adjusted EBITDA for any pricing, financial covenant based conditions or any baskets with respect to the covenants contained in this Agreement and there shall be no pro forma reduction in Indebtedness with the proceeds of any Curative Equity for purposes of determining compliance with the Fixed Charge Coverage Ratio Specified Financial Covenants or for determining any pricing, financial covenant based conditions or baskets with respect to the covenants contained in this Agreement, in each case in the quarter in which such Curative Equity is used. (g) To the extent that Curative Equity is received and included in the calculation of the Specified Financial Covenants as deemed EBITDA for any fiscal quarter pursuant to this Section 9.3, such Curative Equity shall be deemed to be EBITDA for purposes of determining compliance with the Specified Financial Covenants for subsequent periods that include such fiscal quarter.

Appears in 1 contract

Samples: Credit Agreement (Connecture Inc)

Curative Equity. (a) At the election of Administrative Borrower upon written notice to Agent and subject Subject to the limitations set forth in clause (d) below, Holdings and Borrowers may any holder of Equity Interests of any Borrower or any direct or indirect parent of the Borrower Agent shall have the right to cure (and shall be deemed to have cured) an Event of Default arising out of a breach of the Fixed Charge Coverage Ratio financial covenant set forth in Article 7 any Financial Covenant (any such breach a “Financial Covenant Default”) if they Borrowers receive the cash proceeds of an investment of Curative Equity within 10 fifteen (15) Business Days after the date on which the Fixed Charge Coverage Ratio is first financial statements referred to in Section 10.1.2(a) are required to be tested pursuant to delivered in respect of the terms hereofTest Period for which such financial covenant is being measured in accordance with Section 10.1.2 (the “Cure Expiration Date”). (b) Borrowers Borrower Agent shall promptly notify Agent of its receipt of any proceeds of Curative Equity (and shall immediately apply the same to the payment of first to the Term Loan (on a pro rata basis to all remaining installments based upon the respective amounts thereof), second to the DDTLs (on a pro rata basis to all remaining installments based upon the respective amounts thereof), third to the Revolver Loans (without reduction of the Revolver Commitment), fourth to Cash Collateralize outstanding Letters of Credit, and finally to other Obligations) by any investment Borrower; provided that failure to notify the Agent thereof shall not affect the validity of any Curative Equity shall be in immediately available fundsreceived by any Borrower on or before the Cure Expiration Date; provided, further, that Agent may exercise remedies under Section 11.2 after the Cure Expiration Date if Agent has not received notice of the Curative Equity until the Agent is so notified. (c) Upon delivery of The Curative Equity shall be treated on a certificate by Administrative Borrower to Agent dollar-for-dollar basis as to the amount EBITDA or Capitalization, as applicable, of the proceeds of such Curative Equity and that such amount complies with Borrowers for the provisions of this Section 9.3, then any applicable Fiscal Quarter in which the applicable Event of Default that has occurred (and is continuing from a breach of the Fixed Charge Coverage Ratio shall be deemed cured for any subsequent Test Period which includes such Fiscal Quarter) with no further action required by any party to this Agreement. Neither the Required Lenders. Prior Agent nor any Lender may take any action to foreclose on, or take possession of, the Collateral, accelerate any Obligations, terminate any Commitments or otherwise exercise any rights or remedies under Section 11.2 (or under any other Loan Document) or under any Applicable Laws on the basis of any actual or purported Financial Covenant Default until the date on which the Cure Expiration Date has occurred without the Curative Equity having been received by any Borrower; provided that, during such time, no Lender shall be required to make any Loan hereunder and no L/C Issuer shall be required to issue any Letter of Credit hereunder. Upon receipt by any Borrower of the delivery Curative Equity, each applicable Financial Covenant shall be deemed to be satisfied and complied with as of a certificate conforming the end of the relevant Fiscal Quarter with the same effect as though there had been no failure to the requirements of this Section, comply with such Financial Covenant and any Event of Financial Covenant Default that has would have occurred as a result of a breach the failure to satisfy such Financial Covenant shall be deemed not to have occurred for purposes of the Fixed Charge Coverage Ratio Loan Documents. In the event no Borrower receives the Curative Equity on or before the Cure Expiration Date, an applicable Financial Covenant Default shall be deemed to be continuing and, as a result, the Lenders (including the Swing Lender have occurred and the Issuing Banks) shall have no obligation to make additional Loans or otherwise extend additional credit hereunder. In the event Holdings and Borrowers do not cure all financial covenant violations as provided in this Section 9.3, the existing Event of Default shall will continue unless waived in writing by the Required Lenders in accordance herewith. (d) Notwithstanding anything to the contrary contained in the foregoing or this Agreement, (i) Holdings and Borrowers’ rights under this Section 9.3 10.3.3 may (A) be exercised not more than five (5) times during the term of this Agreement, ; (Bii) not be exercised unless in each trailing four fiscal quarter period, Fiscal Quarter period there shall be a period at least two Fiscal Quarters in respect of two fiscal quarters in which no Curative Equity is contributed pursuant heretomade, (iiiii) the amount of any Curative Equity contributed in any month shall be no greater than not exceed the amount required to cause Borrowers to be in pro forma compliance with the Fixed Charge Coverage Ratio for the applicable periodFinancial Covenants, and (iiiiv) the any Curative Equity shall will be disregarded for purposes of determining Consolidated Adjusted the availability of any baskets, pricing or other items governed by reference to EBITDA for any pricing, financial covenant based conditions or any baskets with respect to the covenants contained in this Agreement the loan documentation, and there shall be (v) no pro forma reduction in Indebtedness indebtedness with the proceeds of any Curative Equity shall be considered for determining purposes of recalculating compliance with the Fixed Charge Coverage Ratio or Financial Covenants for determining any pricingthe initial quarter during such period. For the avoidance of doubt, financial covenant based conditions or baskets with respect Curative Equity which is applied to the covenants contained calculation of both Financial Covenants set forth in Section 10.3.1 and 10.3.2 shall be considered a single instance of the exercise of the cure right set forth in this Agreement, in each case in the quarter in which such Curative Equity is usedSection 10.3.3.

Appears in 1 contract

Samples: First Lien Loan and Security Agreement (Duckhorn Portfolio, Inc.)

Curative Equity. (a) At the election of Administrative Borrower upon written notice to Agent and subject Subject to the limitations set forth in clause (de) below, Holdings and Borrowers may cure (and shall be deemed to have cured) an Event of Default arising out of a breach of any of the Fixed Charge Coverage Ratio financial covenant covenants set forth in Article clause (a) of Section 7 (the “Specified Financial Covenant”) if they receive the cash proceeds of an investment of Curative Equity within 10 Business Days after the date on which the Fixed Charge Coverage Ratio Specified Financial Covenant is first required to be tested pursuant to the terms hereof. (b) Borrowers shall promptly notify Agent of its receipt of any proceeds of Curative Equity (and any shall immediately apply the same to the payment of the Obligations in the manner specified in Section 2.4(e)(vii)). (c) Any investment of Curative Equity shall be in immediately available fundsfunds and, subject to the limitations set forth in clause (e) below, shall be in an amount that is sufficient, after giving effect to the payment of the Obligations as specified in Section 2.4(e)(vii), to cause Borrowers’ Excess Availability to be equal to the Excess Availability threshold set forth in the definition of “Financial Covenant Period”. (cd) Upon delivery of a certificate by Administrative Borrower Borrowers to Agent as to the amount of the proceeds of such Curative Equity and that such amount complies (i) has been applied in accordance with clause (b) above, and (ii) is in an amount equal to the provisions of this Section 9.3amount required by clause (c) above, then (A) the Borrowers shall be deemed to have had sufficient Excess Availability to avoid testing the Specified Financial Covenant as of the end of the fiscal quarter for which such Curative Equity was invested (but not any future 12 month periods), and (B) any Event of Default that occurred and is continuing from a breach of the Fixed Charge Coverage Ratio Specified Financial Covenant solely for that one 12 month period ended as of the end of the fiscal quarter for which such Curative Equity was invested (and not any future 12 month periods) such shall be deemed cured with no further action required by the Required Lenders. Prior to the date of the delivery of a certificate conforming to the requirements of this Section, any Event of Default that has occurred as a result of a breach of the Fixed Charge Coverage Ratio any Specified Financial Covenant shall be deemed to be continuing and, as a result, the Lenders (including the Swing Lender and the Issuing BanksBank) shall have no obligation to make additional Loans loans or otherwise extend additional credit hereunder. In the event Holdings and Borrowers do not cure all financial covenant violations as provided in this Section 9.3, the existing Event Event(s) of Default shall continue unless waived in writing by the Required Lenders in accordance herewith. (de) Notwithstanding anything to the contrary contained in the foregoing or this Agreement, (i) Holdings and Borrowers’ rights under this Section 9.3 may (A) be exercised not more than five (5) 3 times during the term of this Agreement, (B) not be exercised unless in each four fiscal quarter twice within any 180 day period, there shall (C) not be a period exercised if the amount of two fiscal quarters in which no the proposed investment of Curative Equity, together with the amount of all prior investments of Curative Equity, exceeds $30,000,000, (D) not be exercised if the amount of the proposed investment of Curative Equity is contributed pursuant heretoexceeds $10,000,000, (ii) the Curative Equity contributed in any month fiscal quarter shall be no greater than the amount required to cause Borrowers Borrowers’ Excess Availability to be equal to the Excess Availability threshold set forth in pro forma compliance with the Fixed Charge Coverage Ratio for the applicable perioddefinition of “Financial Covenant Period”, and (iii) the Curative Equity shall be disregarded for purposes of determining Consolidated Adjusted EBITDA for the Specified Financial Covenant, and for any pricing, financial covenant based conditions or any baskets with respect to the covenants contained in this Agreement and there shall be no pro forma reduction in Indebtedness with the proceeds of any Curative Equity for determining compliance with the Fixed Charge Coverage Ratio or for determining any pricing, financial covenant based conditions or baskets with respect to the covenants contained in this Agreement, in each case in the quarter in which such Curative Equity is used.” (g) Schedule 5.2 to the Credit Agreement is hereby amended and restated in its entirety in the form of Schedule 5.2 attached hereto. (h) Section 1(a) of the Guaranty and Security Agreement is hereby amended and modified by amending and restating the definition of “Triggering Event” in its entirety as follows:

Appears in 1 contract

Samples: Credit Agreement (Erickson Inc.)

Curative Equity. (a) At the election of Administrative Borrower upon written notice to Agent and subject Subject to the limitations set forth in clause (de) below, Holdings and Borrowers may cure (and shall be deemed to have cured) an Event of Default arising out of a breach of any of the Fixed Charge Coverage Ratio financial covenant covenants set forth in Article clause (b) of Section 7 (the “Specified Financial Covenant”) if they receive it receives the cash proceeds of an investment of Curative Equity within 10 Business Days thirty (30) days after the date on which the Fixed Charge Coverage Ratio Specified Financial Covenant is first required to be tested pursuant to the terms hereof. (b) Borrowers Parent shall promptly notify Agent of its receipt of any proceeds of Curative Equity (and any shall immediately apply the same to the payment of the Obligations in the manner specified in Section 2.4(f)). (c) Any investment of Curative Equity shall be in immediately available fundsfunds and, subject to the limitations set forth in clause (e) below, shall be in an amount that is sufficient to cause Borrowers to be in compliance with the Specified Financial Covenant for the applicable period with respect to which such Event of Default has occurred. (cd) Upon delivery of a certificate by Administrative Borrower Parent to Agent as to the amount of the proceeds of such Curative Equity and that such amount complies (i) has been applied in accordance with clause (b) above, and (ii) is in an amount equal to or greater than the provisions of this Section 9.3amount required by clause (c) above, then any Event of Default that occurred and is continuing from a breach of the Fixed Charge Coverage Ratio Specified Financial Covenant shall be deemed cured with no further action required by the Required Lenders. Prior to the date of the delivery of a certificate conforming to the requirements of this Section, any Event of Default that has occurred as a result of a breach of the Fixed Charge Coverage Ratio Specified Financial Covenant shall be deemed to be continuing and, as a result, the Lenders (including the Swing Lender and the Issuing BanksLender) shall have no obligation to make additional Loans loans or otherwise extend additional credit hereunder, but may not otherwise exercise any other remedies hereunder during such period in respect of such breach of a Specified Financial Covenant. In the event Holdings and Borrowers do Borrower does not cure all financial covenant violations as provided in this Section 9.3, the existing Event Event(s) of Default shall continue unless waived in writing by the Required Lenders in accordance herewith. (de) Notwithstanding anything to the contrary contained in the foregoing or this Agreementforegoing, (i) Holdings and Borrowers’ rights under this Section 9.3 may (A) be exercised not more than five (5) times during the term of this Agreement, (B) not be exercised unless in each four fiscal quarter periodif the amount of the proposed investment of Curative Equity, there shall be a period together with the amount of two fiscal quarters in which no all prior investments of Curative Equity is contributed pursuant heretoduring the twelve (12) months then ended, (ii) the Curative Equity contributed in any month shall be no greater than the amount required to cause Borrowers to be in pro forma compliance with the Fixed Charge Coverage Ratio for the applicable period, and (iii) the Curative Equity shall be disregarded for purposes of determining Consolidated Adjusted EBITDA for any pricing, financial covenant based conditions or any baskets with respect to the covenants contained in this Agreement and there shall be no pro forma reduction in Indebtedness with the proceeds of any Curative Equity for determining compliance with the Fixed Charge Coverage Ratio or for determining any pricing, financial covenant based conditions or baskets with respect to the covenants contained in this Agreement, in each case in the quarter in which such Curative Equity is usedexceeds $10,000,000.

Appears in 1 contract

Samples: Credit Agreement (Nacco Industries Inc)

Curative Equity. (ai) At the election of Administrative Borrower upon written notice to Agent and subject Subject to the limitations set forth in clause (d) belowSection 6.14(c)(ii), Holdings and Borrowers Issuer may cure (and shall will be deemed to have cured) an Event of Default arising out of a breach of any of the Fixed Charge Coverage Ratio financial covenant set forth in Article 7 Section 6.14(a) or (b) (each such financial covenant, a “Specified Financial Covenant”; each such Event of Default, a “Specified Financial Covenant Default”) if they Issuer receive the cash proceeds of an investment of Curative Equity within 10 Business Days after the delivery of the Compliance Certificate (or the date on which the Fixed Charge Coverage Ratio such Compliance Certificate is first required to be tested delivered) as to which the applicable Specified Financial Covenant is required to be reported for the applicable Computation Period pursuant to the terms hereofthis Agreement. (b) Borrowers shall promptly notify Agent of its receipt of any proceeds of Curative Equity and any investment of Curative Equity shall be in immediately available funds. (cii) Upon delivery of a certificate by Issuer to Administrative Borrower to Agent certifying as to the amount of the proceeds of such any Curative Equity and that such amount complies prepayment of the Term Notes in accordance with the provisions of this Section 9.32.11((b)(iv), then any Event of each applicable Specified Financial Covenant Default that occurred and is continuing from a breach of the Fixed Charge Coverage Ratio shall will be deemed cured with no further action required by the Required LendersHolders. Prior to Before the date of the delivery of a certificate conforming to the requirements of this Sectionthat certificate, any Event of Specified Financial Covenant Default that has occurred as a result of a breach of the Fixed Charge Coverage Ratio shall and is continuing will be deemed to be continuing continuing, and, as a result, the Lenders (including the Swing Lender and the Issuing Banks) shall Holders will have no obligation to make additional Loans notes or otherwise extend additional credit hereunderunder this Agreement. In the event Holdings and Borrowers If Issuer do not cure all financial covenant violations a Specified Financial Covenant Default as provided in this Section 9.36.14(c), the existing Event of then that Specified Financial Covenant Default shall will continue unless waived in writing by the Required Lenders Holders in accordance herewithwith this Agreement. (diii) To the extent that proceeds of Curative Equity are received with respect to any Fiscal Quarter, those proceeds will be deemed to be Consolidated Adjusted EBITDA for purposes of determining compliance with the Specified Financial Covenants for that Fiscal Quarter and subsequent periods that include that Fiscal Quarter. Notwithstanding anything any provision of this Agreement to the contrary contained in the foregoing or this Agreementcontrary, (iA) Holdings and BorrowersIssuer’ rights under this Section 9.3 6.14(c) (x) may (A) be exercised not no more than five (5) times during the term of this Agreement, (By) may be exercised no more than twice in any period of four Fiscal Quarters and (z) may not be exercised unless in each four fiscal quarter period, there shall be a period consecutive Fiscal Quarters; (B) the amount of two fiscal quarters in which no proceeds of any Curative Equity is contributed pursuant hereto, (ii) the Curative Equity contributed in any month shall may not be no greater than the amount required to cause Borrowers Issuer to be in pro forma compliance with each applicable Specified Financial Covenant as at the end of the applicable Computation Period; (C) the proceeds of Curative Equity shall be immediately paid over to the Administrative Agent to be applied to pay down the Term Notes in accordance with Section 2.11((b)(iv); provided that such prepaid amounts shall be deemed to continue to be outstanding Term Notes for purposes of calculating Curative Equity and compliance with the Fixed Charge Coverage Ratio Specified Financial Covenants for the applicable period, that Fiscal Quarter and any test period that includes such Fiscal Quarter; and (iiiD) the proceeds of Curative Equity shall will be disregarded for purposes of determining Consolidated Adjusted EBITDA for any pricing, financial covenant covenant-based conditions conditions, or any baskets with respect to the covenants contained in this Agreement and there shall will be no pro forma reduction in Indebtedness with the proceeds of any Curative Equity for determining compliance with the Fixed Charge Coverage Ratio Specified Financial Covenants or for determining any pricing, financial covenant covenant-based conditions conditions, or baskets with respect to the covenants contained in this Agreement, in each case in the quarter Fiscal Quarter in which such that Curative Equity is used.

Appears in 1 contract

Samples: Note Purchase Agreement (Indivior PLC)

Curative Equity. (a) At the election of Administrative Borrower upon written notice to Agent and subject Subject to the limitations set forth in clause (de) below, Holdings and Borrowers Borrower may cure (and shall be deemed to have cured) an Event of Default arising out of a breach of the Fixed Charge Coverage Ratio financial covenant set forth in Article clause (c) of Section 7 (the “Specified Financial Covenant”) if they receive the cash proceeds of an investment of Curative Equity within 10 on or before the date that is ten Business Days after the date that is the earlier to occur of (i) the date on which the Fixed Charge Coverage Ratio Compliance Certificate is first delivered to Agent in respect of the fiscal quarter with respect to which any such breach occurred (the “Specified Financial Quarter”), and (ii) the date on which the Compliance Certificate is required to be tested delivered to Agent pursuant to Section 5.1 in respect of the terms hereofSpecified Financial Quarter (such earlier date, the “Financial Statement Delivery Date”); provided, that Borrower’s right to so cure an Event of Default shall be contingent on their timely delivery of such Compliance Certificate and financial statements for the Specified Financial Quarter as required under Section 5.1. (b) Borrowers Borrower shall promptly notify Agent of its receipt of any proceeds of Curative Equity (and any shall immediately apply the same to the payment of the Obligations in the manner specified in Section 2.4(e)(vii)). (c) Any investment of Curative Equity shall be in immediately available funds. (cd) Upon delivery of a certificate by Administrative Borrower to Agent as to the amount of the proceeds of such Curative Equity and that such amount complies has been applied in accordance with the provisions of this Section 9.3clause (b) above, then any Event of Default that occurred and is continuing from a breach of the Fixed Charge Coverage Ratio Specified Financial Covenant shall be deemed cured with no further action required by the Required Lenders. Prior to the date of the delivery of a certificate conforming to the requirements of this Section, any Event of Default that has occurred as a result of a breach of the Fixed Charge Coverage Ratio Specified Financial Covenant shall be deemed to be continuing and, as a result, the Lenders (including the Swing Lender and the Issuing Banks) shall have no obligation to make additional Loans loans or otherwise extend additional credit hereunder. In the event Holdings and Borrowers do Borrower does not cure all financial covenant violations as provided in this Section 9.39.4, the existing Event Event(s) of Default shall continue unless waived in writing by the Required Lenders in accordance herewith. (de) Notwithstanding anything to the contrary contained in the foregoing or this Agreement, (i) Holdings and Borrowers’ Borrower’s rights under this Section 9.3 9.4 may (A) be exercised not more than five (5) 4 times during the term of this Agreement, and (B) not be exercised unless in each four fiscal quarter twice or consecutively within any 180 day period, there shall be a period of two fiscal quarters in which no Curative Equity is contributed pursuant hereto, (ii) the Curative Equity contributed in any month fiscal quarter shall be no greater than the amount required to cause Borrowers Borrower to be in pro forma compliance with the Fixed Charge Coverage Ratio for Specified Financial Covenant at the applicable periodend of such fiscal quarter, and (iii) the Curative Equity shall be disregarded for purposes of determining Consolidated Adjusted EBITDA for any pricing, financial covenant based conditions or any baskets with respect to the covenants contained in this Agreement and there shall be no pro forma reduction in Indebtedness with the proceeds of any Curative Equity for determining compliance with the Fixed Charge Coverage Ratio Specified Financial Covenant or for determining any pricing, financial covenant based conditions or baskets or incurrence tests with respect to the covenants contained in this Agreement, in each case in the quarter in which such Curative Equity is usedused or subsequent periods that include such quarter.

Appears in 1 contract

Samples: Credit Agreement (Glass House Brands Inc.)

Curative Equity. (a) At the election of Administrative Borrower upon written notice to Agent and subject Subject to the limitations set forth in clause (de) below, Holdings and Borrowers Borrower may cure (and shall be deemed to have cured) an Event of Default arising out of a breach of the Fixed Charge Coverage Ratio financial covenant set forth in Article clause (c) of Section 7 (the “Specified Financial Covenant”) if they receive the cash proceeds of an investment of Curative Equity within 10 on or before the date that is ten Business Days after the date that is the earlier to occur of (i) the date on which the Fixed Charge Coverage Ratio Compliance Certificate is first delivered to Agent in respect of the fiscal quarter with respect to which any such breach occurred (the “Specified Financial Quarter”), and (ii) the date on which the Compliance Certificate is required to be tested delivered to Agent pursuant to Section 5.1 in respect of the terms hereofSpecified Financial Quarter (such earlier date, the “Financial Statement Delivery Date”); provided, that Borrower’s right to so cure an Event of Default shall be contingent on their timely delivery of such Compliance Certificate and financial statements for the Specified Fiscal Quarter as required under Section 5.1. (b) Borrowers Borrower shall promptly notify Agent of its receipt of any proceeds of Curative Equity (and any shall immediately apply the same to the payment of the Obligations in the manner specified in Section 2.4(e)(vii)). (c) Any investment of Curative Equity shall be in immediately available funds. (cd) Upon delivery of a certificate by Administrative Borrower to Agent as to the amount of the proceeds of such Curative Equity and that such amount complies has been applied in accordance with the provisions of this Section 9.3clause (b) above, then any Event of Default that occurred and is continuing from a breach of the Fixed Charge Coverage Ratio Specified Financial Covenant shall be deemed cured with no further action required by the Required Lenders. Prior to the date of the delivery of a certificate conforming to the requirements of this Section, any Event of Default that has occurred as a result of a breach of the Fixed Charge Coverage Ratio Specified Financial Covenant shall be deemed to be continuing and, as a result, the Lenders (including the Swing Lender and the Issuing BanksBank) shall have no obligation to make additional Loans loans or otherwise extend additional credit hereunder. In the event Holdings and Borrowers do Borrower does not cure all financial covenant violations as provided in this Section 9.39.4, the existing Event Event(s) of Default shall continue unless waived in writing by the Required Lenders in accordance herewith. (de) Notwithstanding anything to the contrary contained in the foregoing or this Agreement, (i) Holdings and Borrowers’ Borrower’s rights under this Section 9.3 9.4 may (A) be exercised not more than five (5) 4 times during the term of this Agreement, and (B) not be exercised unless in each four fiscal quarter twice or consecutively within any 180 day period, there shall be a period of two fiscal quarters in which no Curative Equity is contributed pursuant hereto, (ii) the Curative Equity contributed in any month fiscal quarter shall be no greater than the amount required to cause Borrowers Borrower to be in pro forma compliance with the Fixed Charge Coverage Ratio for Specified Financial Covenant at the applicable periodend of such fiscal quarter, and (iii) the Curative Equity shall be disregarded for purposes of determining Consolidated Adjusted EBITDA for any pricing, financial covenant based conditions or any baskets with respect to the covenants contained in this Agreement and there shall be no pro forma reduction in Indebtedness with the proceeds of any Curative Equity for determining compliance with the Fixed Charge Coverage Ratio Specified Financial Covenant or for determining any pricing, financial covenant based conditions or baskets or incurrence tests with respect to the covenants contained in this Agreement, in each case in the quarter in which such Curative Equity is usedused or subsequent periods that include such quarter.

Appears in 1 contract

Samples: Credit Agreement (Glass House Brands Inc.)

Curative Equity. (a) At the election of Administrative Borrower upon written notice to Agent and subject Subject to the limitations set forth in clause (df) below, Holdings and Borrowers Lead Borrower may cure (and shall be deemed to have cured) an Event of Default arising out of a breach of the Fixed Charge Coverage Ratio financial covenant set forth in Article 7 Section 6.08(a) or Section 6.08(b) (each, a “Specified Financial Covenant”) if they receive Lead Borrower receives the cash proceeds of an investment of Curative Equity within 10 Business Days after the date on which such breach occurred. Upon the Fixed Charge Coverage Ratio is first required to be tested receipt of Curative Equity pursuant to this Section 8.02 and inclusion of such Curative Equity in the terms hereofcalculation of Consolidated EBITDA pursuant to this Section 8.02, then no Event of Default solely with respect to determining compliance with the Specified Financial Covenant shall be deemed to have occurred. (b) Borrowers Lead Borrower shall promptly notify each Agent of its receipt of any proceeds of Curative Equity and any Equity. (c) Any investment of Curative Equity shall be in immediately available fundsfunds and, subject to the limitations set forth in clause (f) below, shall be in an amount equal to the amount required to cause Borrowers to be in compliance the Specified Financial Covenant as at such date. (cd) Upon delivery Contemporaneously with the receipt and application of Curative Equity, Lead Borrower shall tender an updated Compliance Certificate that shall (i) include evidence of its receipt of Curative Equity proceeds and (ii) set forth a certificate by Administrative Borrower to Agent as to calculation of the amount of Consolidated EBITDA (including for such purposes the proceeds of such Curative EBITDA (broken out separately)), which shall confirm that on a pro forma basis after taking into account the receipt of the Curative Equity and that such amount complies proceeds, Borrowers would have been in compliance with the provisions Specified Financial Covenants as of such date. (e) Upon delivery of an updated Compliance Certificate conforming to the requirements of this Section 9.38.02, then any Event of Default that occurred and is continuing from as a result of a breach of the Fixed Charge Coverage Ratio any of any Specified Financial Covenant shall be deemed cured with no further action required by the Required LendersLenders or any other Person. Prior to the date of the delivery of a certificate an updated Compliance Certificate conforming to the requirements of this Section, any Event of Default that has occurred as a result of a breach of the Fixed Charge Coverage Ratio Specified Financial Covenant shall be deemed to be continuing and, as a result, the Lenders (including the Swing Lender and the Issuing Banks) shall have no obligation to make additional Loans or otherwise extend additional credit hereundercontinuing. In the event Holdings and Borrowers do Lead Borrower does not cure all financial covenant violations the Specified Financial Covenants as provided in this Section 9.38.02, the existing Event Event(s) of Default shall continue unless waived in writing by the Required Lenders in accordance herewith. (df) Notwithstanding anything to the contrary contained in the foregoing or this Agreementforegoing, (i) Holdings and Borrowers’ Lead Borrower’s rights under this Section 9.3 8.02 may (Ai) be exercised not more than five (5) four times during the term of this Agreement, (Bii) not be exercised unless in each more than twice during any four fiscal quarter consecutive Fiscal Quarter period, there (iii) may not be exercised in consecutive Fiscal Quarters and (iv) may not be exercised more than once during any Fiscal Quarter. All proceeds of Curative Equity shall be held in a period deposit account subject to a Control Agreement until the last day of two fiscal quarters in the Fiscal Quarter during which no such Curative Equity is contributed pursuant heretowas received (any such Fiscal Quarter, (ii) the a “Cure Quarter”). Any amount of Curative Equity contributed that is in any month shall be no greater than excess of the amount required sufficient to cause Borrowers Borrower to be in pro forma compliance with the Fixed Charge Coverage Ratio for the applicable period, and (iii) the Specified Financial Covenant as at such date shall not constitute Curative Equity. Curative Equity shall be disregarded for purposes of determining Consolidated Adjusted EBITDA for any pricing, financial covenant covenant-based conditions or condition, any baskets with respect to the covenants contained in this Agreement Agreement, or for any other purposes under this Agreement, and there shall be no pro forma or other reduction in Indebtedness (via cash netting or otherwise) with the proceeds of any Curative Equity for purposes of determining compliance with the Fixed Charge Coverage Ratio Specified Financial Covenant or for determining any pricingfinancial covenant-based conditions, financial covenant based conditions or baskets with respect to the covenants contained in this Agreement, in each case in the quarter in which such Curative Equity is used.

Appears in 1 contract

Samples: Subordination Agreement (Franchise Group, Inc.)

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