Cure Right. (a) Notwithstanding anything to the contrary contained in Section 10.1, in the event that the Loan Parties fail to comply with the covenant contained in Section 9.3 (the “Financial Performance Covenant”) with respect to any fiscal quarter, after the end of such fiscal quarter until the expiration of 15 Business Days subsequent to the date on which financial statements with respect to the fiscal quarter for which Financial Performance Covenant is being measured are required to be delivered pursuant to Section 9.1.1(a) or (b), any Specified Holder shall have the right to make a Specified Equity Contribution to Holdings (collectively, the “Cure Right”), and upon the receipt by the Administrative Borrower from Holdings (which shall contribute such amount in cash as common equity of the Administrative Borrower) (the “Cure Amount”) pursuant to the exercise by a Specified Holder of such Cure Right (and so long as such Cure Amount is actually received by the Administrative Borrower no later than 15 Business Days after the date on which financial statements with respect to the fiscal quarter for which the Financial Performance Covenant is being measured are required to be delivered pursuant to Section 9.1.1(a) or (b)) and notice from the Administrative Borrower to Agent as to the fiscal quarter with respect to which such Cure Amount is made, then the Financial Performance Covenant shall be recalculated giving effect to the following pro forma adjustments (but without regard to any pro forma or actual reduction in Indebtedness in such fiscal quarter made with all or any portion of such Cure Amount or any portion of the Cure Amount on the balance sheet of the Administrative Borrower and its Restricted Subsidiaries (including for purposes of determining the amount of Consolidated Total Debt), provided that, to the extent any portion of the Cure Amount is actually used to repay Indebtedness, such repayment and the effects thereof shall be regarded for all purposes of this Agreement in any quarter following the quarter in which such Cure Right was exercised): (i) Consolidated EBITDA shall be increased, solely for the purpose of measuring the Financial Performance Covenant and determining the existence of an Event of Default set forth in Section 10.1 resulting from a breach of the Financial Performance Covenant and not for any other purpose under this Agreement, by an amount equal to the Cure Amount for such fiscal quarter and any four fiscal quarter period that contains such fiscal quarter; and (ii) if, after giving effect to the foregoing recalculations, the Loan Parties shall then be in compliance with the requirements of the Financial Performance Covenant, the Loan Parties shall be deemed to have satisfied the requirements of the Financial Performance 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 any applicable breach or default of the Financial Performance Covenant that had occurred shall be deemed cured for purposes of this Agreement. (a) Notwithstanding anything herein to the contrary, (i) in each four consecutive fiscal quarter period there shall be at least two fiscal quarters in which the Cure Right is not exercised, (ii) the Cure Amount shall be no greater than 100% of the amount required for purposes of complying with the Financial Performance Covenant, (iii) the Cure Right shall not be exercised more than five times during the term of this Agreement and (iv) no Specified Equity Contribution nor the proceeds thereof may be relied on for purposes of calculating any financial ratios (other than as applicable to the Financial Performance Covenant for purposes of increasing Consolidated EBITDA as provided in clause (a) above) or any available basket or thresholds under this Agreement and shall not result in any adjustment to any amounts or calculations other than the amount of the Consolidated EBITDA to the extent provided in clause (a) above. Neither Agent nor any Lender shall exercise the right to accelerate the Loans or terminate the Revolver Commitments and none of Agent, any Lender or any other Secured Party shall exercise any right to foreclose on or take possession of the Collateral or exercise any other remedy pursuant to Section 10.1, the other Loan Documents or Applicable Law prior to the 15th Business Day after the date on which financial statements with respect to the fiscal quarter for which the Financial Performance Covenant is being measured are required to be delivered pursuant to Section 9.1.1(a) or (b) solely on the basis of an Event of Default having occurred and being continuing due to a breach of the Financial Performance Covenant (except to the extent that the Administrative Borrower has confirmed in writing that it does not intend to provide a Specified Equity Contribution). For the avoidance of doubt, from the time that the Loan Parties fail to comply with the Financial Performance Covenant until the time of the exercise of the Cure Right and the receipt by the Administrative Borrower of the Cure Amount, the Borrowers shall not be able to borrow any Loans hereunder or request the issuance, extension or renewal of any Letter of Credit hereunder.
Appears in 1 contract
Cure Right. (a) Notwithstanding anything to the contrary contained in Section 10.1, in In the event that the Loan Parties Borrowers fail to comply with the requirements of any financial covenant contained set forth in Section 9.3 (the “Financial Performance Covenant”) with respect to any fiscal quarter7.03, after the end of such fiscal quarter until the expiration of 15 Business Days subsequent to the date on which financial statements with respect to the fiscal quarter for which Financial Performance Covenant is being measured are required to be delivered pursuant to Section 9.1.1(afifth (5th) or (b), any Specified Holder shall have the right to make a Specified Equity Contribution to Holdings (collectively, the “Cure Right”), and upon the receipt by the Administrative Borrower from Holdings (which shall contribute such amount in cash as common equity of the Administrative Borrower) (the “Cure Amount”) pursuant to the exercise by a Specified Holder of such Cure Right (and so long as such Cure Amount is actually received by the Administrative Borrower no later than 15 Business Days day after the date on which financial statements with respect to the fiscal quarter for which the Financial Performance Covenant is being measured are required to be delivered pursuant to Section 9.1.1(a) or (b)) and notice from the Administrative Borrower to Agent as to the fiscal quarter with respect to which such the applicable Fiscal Quarter hereunder, the Parent shall have the right to issue Permitted Cure Amount is made, then the Financial Performance Covenant shall be recalculated giving effect Equity for cash or otherwise receive cash contributions to the following pro forma adjustments capital of the Parent, and, in each case, to contribute any such cash to the capital of the Parent, and apply the amount of the proceeds thereof to increase Consolidated EBITDA with respect to such applicable Fiscal Quarter (but without regard the "Cure Right"); provided that (a) such proceeds are actually received by the Parent no later than 5 days after the date on which financial statements are required to any pro forma or actual reduction in Indebtedness in be delivered with respect to such fiscal quarter made with all or any portion hereunder, (b) such proceeds do not exceed the aggregate amount necessary to cure (by addition to Consolidated EBITDA) such Event of Default under Section 7.03 for such Cure Amount or any portion period, (c) such proceeds do not exceed 15% of Consolidated EBITDA of the Cure Amount on the balance sheet of the Administrative Borrower Parent and its Restricted Subsidiaries for the immediately preceding four (including 4) Fiscal Quarter period, (d) the Cure Right shall not be exercised more than four (4) times during the term of this Agreement, (e) in each period of four Fiscal Quarters, there shall be at least 2 consecutive Fiscal Quarters during which the Cure Right is not exercised, (f) the aggregate amount of all Cure Right proceeds during the term of this Agreement shall not exceed $3,000,000, (g) all Cure Right contributions shall be disregarded for purposes of determining the amount of Consolidated Total Debt)any financial ratio-based conditions, provided that, pricing or any baskets with respect to the extent any portion of the Cure Amount is actually used to repay Indebtednesscovenants contained herein, such repayment and the effects thereof (h) there shall be regarded for all purposes no pro forma reduction in Indebtedness with the proceeds of this Agreement in any quarter following the quarter in which such Cure Right was exercised):
for determining compliance with the financial covenants for such twelve month period (either through repayment or netting) and (i) Consolidated EBITDA such proceeds shall be increased, solely for immediately applied to prepay the purpose of measuring the Financial Performance Covenant Term Loan and determining the existence of an Event of Default set forth in Section 10.1 resulting from a breach of the Financial Performance Covenant and not for any other purpose under this Agreement, by an amount equal applied to the Cure Amount for such fiscal quarter inverse order of maturity and any four fiscal quarter period that contains such fiscal quarter; and
(ii) ifthe Borrowers shall pay the Applicable Prepayment Premium. If, after giving effect to the foregoing recalculationspro forma adjustment (but not, for the avoidance of doubt, giving pro forma adjustment to any repayment of Indebtedness in connection therewith), the Loan Parties shall then be Borrowers are in compliance with the requirements of the Financial Performance Covenantfinancial covenants set forth in Section 7.03, the Loan Parties Borrowers shall be deemed to have satisfied the requirements of the Financial Performance Covenant such Section as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at on such date, and any the applicable breach or default of the Financial Performance Covenant such Section 7.03 that had occurred shall be deemed cured for purposes of this Agreement.
(a) Notwithstanding anything herein to the contrary, (i) in each four consecutive fiscal quarter period there shall be at least two fiscal quarters in which the Cure Right is . The parties hereby acknowledge that this Section may not exercised, (ii) the Cure Amount shall be no greater than 100% of the amount required for purposes of complying with the Financial Performance Covenant, (iii) the Cure Right shall not be exercised more than five times during the term of this Agreement and (iv) no Specified Equity Contribution nor the proceeds thereof may be relied on for purposes of calculating any financial ratios (other than as applicable to the Financial Performance Covenant for purposes of increasing Consolidated EBITDA as provided in clause (a) above) or any available basket or thresholds under this Agreement Section 7.03 and shall not result in any adjustment to any amounts or calculations other than the amount of the Consolidated EBITDA referred to in the extent provided in clause (a) above. Neither Agent nor any Lender shall exercise the right to accelerate the Loans or terminate the Revolver Commitments and none of Agent, any Lender or any other Secured Party shall exercise any right to foreclose on or take possession of the Collateral or exercise any other remedy pursuant to Section 10.1, the other Loan Documents or Applicable Law prior to the 15th Business Day after the date on which financial statements with respect to the fiscal quarter for which the Financial Performance Covenant is being measured are required to be delivered pursuant to Section 9.1.1(a) or (b) solely on the basis of an Event of Default having occurred and being continuing due to a breach of the Financial Performance Covenant (except to the extent that the Administrative Borrower has confirmed in writing that it does not intend to provide a Specified Equity Contribution). For the avoidance of doubt, from the time that the Loan Parties fail to comply with the Financial Performance Covenant until the time of the exercise of the Cure Right and the receipt by the Administrative Borrower of the Cure Amount, the Borrowers shall not be able to borrow any Loans hereunder or request the issuance, extension or renewal of any Letter of Credit hereunderimmediately preceding sentence.
Appears in 1 contract
Cure Right. (a) Notwithstanding anything to the contrary contained in Section 10.19 or this Section 10, in the event that the Loan Parties fail Borrower fails to comply with any of the covenant contained covenants set forth in Section 9.3 Sections 8.1 or 8.2 (together, the “Financial Performance CovenantCondition Covenants”) with respect to any fiscal quarter, after as of the end of such fiscal quarter any quarter, until the expiration of 15 Business Days the tenth day subsequent to the date on which financial statements with respect to the fiscal Compliance Certificate for the last month of such quarter for which Financial Performance Covenant is being measured are required to be delivered pursuant to Section 9.1.1(a) or (b7.1(d), any Specified Holder Borrower shall have the right to make a Specified Equity Contribution issue equity units (the “Cure Securities”) for cash (the amount thereof, the “Cure Amount”), so long as such cash is immediately contributed to Holdings the capital of Borrower as common equity (collectively, the “Cure Right”); provided, (i) no more than two Cure Rights may be exercised during any period of four consecutive quarters (provided, further, that no such two Cure Rights may be exercised in respect of any two consecutive quarters); (ii) no Cure Amount shall exceed the lesser of (x) $700,000 or (y) the amount necessary to cause compliance with the applicable Financial Condition Covenants for the measurement period then ended and upon (iii) such Cure Rights may not be exercised more than three (3) times during the term of this Agreement.
(b) Upon the receipt by the Administrative Borrower from Holdings (which shall contribute such amount in cash as common equity of the Administrative Borrower) cash proceeds of any Cure Securities referred to in Section 10.5(a), EBITDA for the quarter as to which such Cure Right is exercised (the “Cure AmountRight Quarter”) pursuant shall be deemed to have been increased by the exercise by a Specified Holder of Cure Amount in calculating the Financial Condition Covenants for such Cure Right (Quarter and so long as such Cure Amount is actually received by the Administrative Borrower no later than 15 Business Days after the date on which financial statements with respect to the fiscal quarter for which the Financial Performance Covenant is being measured are required to be delivered pursuant to Section 9.1.1(a) or (b)) and notice from the Administrative Borrower to Agent as to the fiscal quarter with respect to which such Cure Amount is made, then the Financial Performance Covenant shall be recalculated giving effect to the following pro forma adjustments (but without regard to any pro forma or actual reduction in Indebtedness in such fiscal quarter made with all or any portion of such Cure Amount or any portion of the Cure Amount on the balance sheet of the Administrative Borrower and its Restricted Subsidiaries (including for purposes of determining the amount of Consolidated Total Debt), provided that, to the extent any portion of the Cure Amount is actually used to repay Indebtedness, such repayment and the effects thereof shall be regarded for all purposes of this Agreement in any quarter following the quarter in which subsequent period that includes such Cure Right was exercised):
(i) Consolidated EBITDA Quarter; provided, that no increase in EB1TDA on account of the exercise of any Cure Right shall be increased, solely for the purpose of measuring the Financial Performance Covenant and determining the existence of an Event of Default set forth in Section 10.1 resulting from a breach of the Financial Performance Covenant and not applicable for any other purpose under this AgreementAgreement or any other Loan Document, by an including determining the availability or amount equal to of any covenant basket, carve-out or compliance on a pro forma basis with any of the Cure Amount for such fiscal quarter and any four fiscal quarter period that contains such fiscal quarter; andFinancial Condition Covenants or determining Excess Cash Flow.
(iic) if, If after giving effect to the foregoing recalculationsrecalculations set forth in this Section 10.5, the Loan Parties Borrower shall then be in compliance with the requirements of the all Financial Performance CovenantCondition Covenants, the Loan Parties Borrower shall be deemed to have satisfied the requirements of the Financial Performance Covenant such covenants 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 Event of Default with respect to any applicable breach or default of the Financial Performance Covenant such covenant that had occurred shall be deemed cured for all purposes of this Agreement.
(a) Notwithstanding anything herein to the contrary, (i) in each four consecutive fiscal quarter period there shall be at least two fiscal quarters in which the Cure Right is not exercised, (ii) the Cure Amount shall be no greater than 100% of the amount required for purposes of complying with the Financial Performance Covenant, (iii) the Cure Right shall not be exercised more than five times during the term of this Agreement and (iv) no Specified Equity Contribution nor the proceeds thereof may be relied on for purposes of calculating any financial ratios (other than as applicable to the Financial Performance Covenant for purposes of increasing Consolidated EBITDA as provided in clause (a) above) or any available basket or thresholds under this Agreement and shall not result in any adjustment to any amounts or calculations other than the amount of the Consolidated EBITDA to the extent provided in clause (a) above. Neither Agent nor any Lender shall exercise the right to accelerate the Loans or terminate the Revolver Commitments and none of Agent, any Lender or any other Secured Party shall exercise any right to foreclose on or take possession of the Collateral or exercise any other remedy pursuant to Section 10.1, the other Loan Documents or Applicable Law prior to the 15th Business Day after the date on which financial statements with respect to the fiscal quarter for which the Financial Performance Covenant is being measured are required to be delivered pursuant to Section 9.1.1(a) or (b) solely on the basis of an Event of Default having occurred and being continuing due to a breach of the Financial Performance Covenant (except to the extent that the Administrative Borrower has confirmed in writing that it does not intend to provide a Specified Equity Contribution). For the avoidance of doubt, from the time that the Loan Parties fail to comply with the Financial Performance Covenant until the time of the exercise of the Cure Right and the receipt by the Administrative Borrower of the Cure Amount, the Borrowers shall not be able to borrow any Loans hereunder or request the issuance, extension or renewal of any Letter of Credit hereunderDocuments.
Appears in 1 contract
Sources: Loan and Security Agreement (Petros Pharmaceuticals, Inc.)
Cure Right. (a) Notwithstanding anything to the contrary contained in Section 10.1herein, in the event that the Loan Parties fail to comply (x) with the covenant contained in requirements of Section 9.3 6.5(a) for any fiscal quarter (the “Financial Performance CovenantApplicable Fiscal Quarter”), then until the tenth (10th) Business Day (the “FCCR Cure Notice Deadline”) with respect to any fiscal quarter, after the end earlier of such fiscal quarter until (a) delivery of the expiration of 15 Business Days subsequent to Compliance Certificate for the date on which financial statements with respect to the fiscal quarter for which Financial Performance Covenant is being measured are required to be delivered pursuant to Section 9.1.1(a) Applicable Fiscal Quarter, or (b) the due date for delivery of the Compliance Certificate for the Applicable Fiscal Quarter as required by Section 9.7 or 9.8 hereof, or (y) with the requirements of Section 6.5(b) on any date of determination (the “Applicable Liquidity Shortfall Date”), then until the third (3rd) Business Day (the “Liquidity Cure Notice Deadline”) after the Liquidity Shortfall Date, any Specified Holder holder of Equity Interests of AmeriGas or any of its direct or indirect Parents shall have the right to make a Specified Equity Contribution contribution to Holdings its equity in the form of common equity for cash and contribute the cash proceeds therefrom to AmeriGas and/or AmeriGas shall have the right to issue, obtain or recognize a contribution to its equity in the form of common equity for cash (collectively, the “Cure Right”), and upon the receipt by the Administrative Borrower from Holdings (which shall contribute AmeriGas of such amount in cash as common equity of the Administrative Borrower) proceeds (the “Cure Amount”) ), pursuant to the exercise by a Specified Holder of such Cure Right (and so long Right, the calculation of Fixed Charge Coverage Ratio as such Cure Amount is actually received by used in the Administrative Borrower no later than 15 Business Days after the date on which financial statements with respect to the fiscal quarter for which the Financial Performance Covenant is being measured are required to be delivered pursuant to covenant set forth in Section 9.1.1(a6.5(a) or (b)) and notice from the Administrative Borrower to Agent calculation of Liquidity shall, as to the fiscal quarter with respect to which such Cure Amount is madeapplicable, then the Financial Performance Covenant shall be recalculated giving effect to the following pro forma adjustments (but without regard to any pro forma or actual reduction in Indebtedness in such fiscal quarter made with all or any portion so long as the cash proceeds of the exercise of such Cure Amount Right are received by AmeriGas no later than five (5) Business Days after the FCCR Cure Notice Deadline or any portion of Liquidity Cure Notice Deadline (as applicable, the “Anticipated Cure Amount on the balance sheet of the Administrative Borrower Deadline”) and its Restricted Subsidiaries (including remitted to Agent for purposes of determining the amount of Consolidated Total Debt), provided that, application to the extent Obligations in accordance with the terms hereof (without any portion of corresponding reduction to the Cure Amount is actually used Revolving Commitments or Maximum Revolving Advance Amount): (a) With respect to repay Indebtednessa failure to comply with Section 6.5(a) for the Applicable Fiscal Quarter, such repayment and the effects thereof shall be regarded for all purposes of this Agreement in any quarter following the quarter in which such Cure Right was exercised):
(i) Consolidated EBITDA shall be increased, solely for the purpose of measuring the Financial Performance Covenant and determining the existence of an Event of Default Fixed Charge Coverage Ratio set forth in Section 10.1 resulting from a breach of 6.5(a) for the Financial Performance Covenant Applicable Fiscal Quarter (and the applicable subsequent periods which include the Applicable Fiscal Quarter) and not for any other purpose under this AgreementAgreement (including but not limited to determining the availability or amount of any covenant baskets or carve-outs), by an amount equal to the Cure Amount; provided that the receipt by AmeriGas of the Cure Amount for such fiscal quarter and any four fiscal quarter period that contains such fiscal quarter; and
(ii) if, after giving effect pursuant to the foregoing recalculations, the Loan Parties shall then be in compliance with the requirements of the Financial Performance Covenant, the Loan Parties Cure Right shall be deemed to have satisfied the requirements of the Financial Performance Covenant as of the relevant date of determination with the same no other effect as though there had been no failure to comply therewith at such date, and any applicable breach or default of the Financial Performance Covenant that had occurred shall be deemed cured for purposes of this Agreement.
(a) Notwithstanding anything herein to the contrary, (i) in each four consecutive fiscal quarter period there shall be at least two fiscal quarters in which the Cure Right is not exercised, (ii) the Cure Amount shall be no greater than 100% of the amount required for purposes of complying with the Financial Performance Covenant, (iii) the Cure Right shall not be exercised more than five times during the term of this Agreement and (iv) no Specified Equity Contribution nor the proceeds thereof may be relied on for purposes of calculating any financial ratios (other than as applicable to the Financial Performance Covenant for purposes of increasing Consolidated EBITDA as provided in clause (a) above) or any available basket or thresholds whatsoever under this Agreement and shall not result in any adjustment to any amounts or calculations other than the amount of the Consolidated EBITDA to the extent provided in clause (a) above. Neither Agent nor any Lender shall exercise the right to accelerate the Loans or terminate the Revolver Commitments and none of Agent, any Lender or any other Secured Party shall exercise any right to foreclose on or take possession of the Collateral or exercise any other remedy pursuant to Section 10.1, the other Loan Documents or Applicable Law prior to the 15th Business Day after the date on which financial statements with respect to the fiscal quarter for which the Financial Performance Covenant is being measured are required to be delivered pursuant to Section 9.1.1(a) or (b) solely on the basis of an Event of Default having occurred and being continuing due to a breach of the Financial Performance Covenant (except to the extent that the Administrative Borrower has confirmed in writing that it does not intend to provide a Specified Equity Contribution). For the avoidance of doubt, from the time that the Loan Parties fail to comply with the Financial Performance Covenant until the time of the exercise of the Cure Right and the receipt by the Administrative Borrower of the Cure Amount, the Borrowers shall not be able to borrow any Loans hereunder or request the issuance, extension or renewal of any Letter of Credit hereunder.120 074658.00041/136182926v.3 074658.00041/152601366v.3 074658.00041/136182926v.6 074658.00041/136182926v.7 074658.00041/136182926v.10 074658.00041/150851455v.1 074658.00041/150851455v.4
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Ugi Corp /Pa/)
Cure Right. (a) Notwithstanding anything to the contrary contained in Section 10.1this Agreement, in the event that the Loan Parties Borrowers fail to comply with Section 6.2 as of the covenant contained in Section 9.3 (the “Financial Performance Covenant”) with respect to end of any fiscal quarter, after the end of such fiscal quarter until the expiration of 15 the fifteenth (15th) Business Days Day subsequent to the date on which financial statements with respect to the Compliance Certificate for such fiscal quarter for which Financial Performance Covenant is being measured are required to be delivered pursuant to Section 9.1.1(a) or 4.1 (bthe “Cure Period”), any Specified Holder Accuray shall have the right to make a Specified issue equity interests (other than Disqualified Equity Contribution to Holdings Interests) for cash (collectivelythe amount thereof, the “Cure Amount” and the exercise of such right, the “Cure Right”); provided, (i) no more than four (4) Cure Rights may be exercised after the Closing Date; (ii) no more than two Cure Rights may be exercised during any consecutive four fiscal quarters; (iii) no Cure Amount shall exceed the amount necessary to cause compliance with Section 6.2 for the period then ended; and upon (iv) no Cure Amount shall exceed $5,000,000; provided further, that (x) Borrower Representative shall give Agent written notice of their intention to exercise the Cure Right prior to the eleventh (11th) Business Day subsequent to the date the Compliance Certificate for such fiscal quarter is required to be delivered (such Business Day, the “Cure Notice Deadline”) and (y) so long as Borrower Representative has given irrevocable written notice to Agent of its commitment to exercise the Cure Right prior to the Cure Notice Deadline, during the remainder of the Cure Period thereafter, neither Agent nor Lenders shall exercise remedies in connection with such failure to comply with Section 6.2 as of the end of such fiscal quarter; provided, further, that Borrowers shall not be permitted to request any Revolving Loans during the Cure Period unless and until the Cure Amount has been received by Accuray.
(b) Upon the receipt by the Administrative Borrower from Holdings (which shall contribute such amount in cash as common equity Accuray of the Administrative Borrower) cash proceeds of any equity issuance referred to in Section 10.11(a), EBITDA for the fiscal quarter as to which such Cure Right is exercised (the “Cure AmountRight Fiscal Quarter”) pursuant shall be deemed to have been increased by the exercise by a Specified Holder of Cure Amount in determining compliance with Section 6.2 for such Cure Right (Fiscal Quarter and so long as such Cure Amount is actually received by the Administrative Borrower no later than 15 Business Days after the date on which financial statements with respect to the fiscal quarter for which the Financial Performance Covenant is being measured are required to be delivered pursuant to Section 9.1.1(a) or (b)) and notice from the Administrative Borrower to Agent as to the fiscal quarter with respect to which such Cure Amount is made, then the Financial Performance Covenant shall be recalculated giving effect to the following pro forma adjustments (but without regard to any pro forma or actual reduction in Indebtedness in such fiscal quarter made with all or any portion of such Cure Amount or any portion of the Cure Amount on the balance sheet of the Administrative Borrower and its Restricted Subsidiaries (including for purposes of determining the amount of Consolidated Total Debt), provided that, to the extent any portion of the Cure Amount is actually used to repay Indebtedness, such repayment and the effects thereof shall be regarded for all purposes of this Agreement in any quarter following the quarter in which subsequent period that includes such Cure Right was exercised):
(i) Consolidated Fiscal Quarter; provided that no increase in EBITDA on account of the exercise of any Cure Right shall be increased, solely for the purpose of measuring the Financial Performance Covenant and determining the existence of an Event of Default set forth in Section 10.1 resulting from a breach of the Financial Performance Covenant and not applicable for any other purpose under this Agreement, by an amount equal to the Cure Amount for such fiscal quarter and Agreement or any four fiscal quarter period that contains such fiscal quarter; andother Financing Documents.
(iic) if, If after giving effect to the foregoing recalculations, the Loan Parties recalculations set forth in Section 10.11(b) Borrowers shall then be in compliance with the requirements of the Financial Performance CovenantSection 6.2, the Loan Parties Borrowers shall be deemed to have satisfied the requirements of the Financial Performance Covenant such covenant as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, and any applicable breach or default Event of the Financial Performance Covenant Default with respect to any such covenant that had occurred shall be deemed cured for all purposes of this Agreement.
(a) Notwithstanding anything herein to the contrary, (i) in each four consecutive fiscal quarter period there shall be at least two fiscal quarters in which the Cure Right is not exercised, (ii) the Cure Amount shall be no greater than 100% of the amount required for purposes of complying with the Financial Performance Covenant, (iii) the Cure Right shall not be exercised more than five times during the term of this Agreement and (iv) no Specified Equity Contribution nor the proceeds thereof may be relied on for purposes of calculating any financial ratios (other than as applicable to the Financial Performance Covenant for purposes of increasing Consolidated EBITDA as provided in clause (a) above) or any available basket or thresholds under this Agreement and shall not result in any adjustment to any amounts or calculations other than the amount of the Consolidated EBITDA to the extent provided in clause (a) above. Neither Agent nor any Lender shall exercise the right to accelerate the Loans or terminate the Revolver Commitments and none of Agent, any Lender or any other Secured Party shall exercise any right to foreclose on or take possession of the Collateral or exercise any other remedy pursuant to Section 10.1, the other Loan Documents or Applicable Law prior to the 15th Business Day after the date on which financial statements with respect to the fiscal quarter for which the Financial Performance Covenant is being measured are required to be delivered pursuant to Section 9.1.1(a) or (b) solely on the basis of an Event of Default having occurred and being continuing due to a breach of the Financial Performance Covenant (except to the extent that the Administrative Borrower has confirmed in writing that it does not intend to provide a Specified Equity Contribution). For the avoidance of doubt, from the time that the Loan Parties fail to comply with the Financial Performance Covenant until the time of the exercise of the Cure Right and the receipt by the Administrative Borrower of the Cure Amount, the Borrowers shall not be able to borrow any Loans hereunder or request the issuance, extension or renewal of any Letter of Credit hereunderFinancing Documents.
Appears in 1 contract
Cure Right. (a) Notwithstanding anything to the contrary contained in Section 10.1, in In the event that the Loan Parties fail to comply with the requirements of any financial covenant contained set forth in Section 9.3 (7.03(a), during the “Financial Performance Covenant”) with respect to any fiscal quarter, after the end of such fiscal quarter until the expiration of 15 Business Days subsequent to period from the date on which financial statements with respect to the fiscal quarter for which Financial Performance Covenant is being measured are required to be delivered pursuant with respect to Section 9.1.1(athe applicable fiscal quarter hereunder until the expiration of the 10th Business Day after the date on which financial statements are required to be delivered with respect to the applicable fiscal quarter of the Parent and its Subsidiaries hereunder, the direct or indirect equity holders of Parent (and/or additional direct or indirect equity holders of Parent) shall, directly or indirectly, purchase Permitted Cure Equity for cash or make cash contributions to the capital of the Parent, and, in each case, to contribute any such cash to the capital of the Borrowers, and apply the amount of the proceeds thereof to increase Consolidated EBITDA with respect to such applicable quarter (b), any Specified Holder shall have the right to make a Specified Equity Contribution to Holdings (collectively, the “Cure Right”), and upon the receipt by the Administrative Borrower from Holdings ; provided that (which shall contribute a) such amount in cash as common equity of the Administrative Borrower) (the “Cure Amount”) pursuant to the exercise by a Specified Holder of such Cure Right (and so long as such Cure Amount is proceeds are actually received by the Administrative Borrower Borrowers no later than 15 10 Business Days after the date on which financial statements with respect to the fiscal quarter for which the Financial Performance Covenant is being measured are required to be delivered pursuant to Section 9.1.1(a) or (b)) and notice from the Administrative Borrower to Agent as to the fiscal quarter with respect to which such fiscal quarter hereunder, (b) such proceeds do not exceed the aggregate amount necessary to cure (by addition to Consolidated EBITDA) such Event of Default under Section 7.03(a) for such period, (c) the Cure Amount is madeRight shall not be exercised more than three (3) times during the term of this Agreement, then (d) the Financial Performance Covenant Cure Right shall not be exercised in any two consecutive fiscal quarter period of the Parent and its Subsidiaries, (e) there shall be recalculated giving effect to the following no pro forma adjustments (but without regard to any pro forma or actual reduction in Indebtedness in such fiscal quarter made with all or any portion of such Cure Amount or any portion the proceeds of the Cure Amount on the balance sheet of the Administrative Borrower and its Restricted Subsidiaries (including Right for purposes of determining compliance with the amount of Consolidated Total Debt)financial covenant in Section 7.03 or for determining any pricing, provided that, financial covenant based conditions or baskets with respect to the extent any portion of covenants contained in this Agreement, in each case in the Cure Amount is actually used to repay Indebtedness, such repayment and the effects thereof shall be regarded for all purposes of this Agreement in any quarter following the fiscal quarter in which such the Cure Right was exercised):
(i) Consolidated EBITDA shall be increased, solely for the purpose of measuring the Financial Performance Covenant and determining the existence of an Event of Default set forth in Section 10.1 resulting from a breach of the Financial Performance Covenant and not for any other purpose under this Agreement, by an amount equal to the Cure Amount for such fiscal quarter and any four fiscal quarter period is used or subsequent periods that contains include such fiscal quarter; and
, and (iif) ifsuch proceeds shall be applied to prepay the Loans in accordance with Section 2.05(c)(vi). If, after giving effect to the foregoing recalculationspro forma adjustment (but not, for the avoidance of doubt, giving pro forma adjustment to any repayment of Indebtedness in connection therewith), the Loan Parties shall then be are in compliance with the requirements of the Financial Performance Covenantfinancial covenant set forth in Section 7.03(a), the Loan Parties shall be deemed to have satisfied the requirements of the Financial Performance Covenant such Section as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at on such date, and any the applicable breach or default of the Financial Performance Covenant such Section 7.03(a) that had occurred shall be deemed cured for purposes of this Agreement.
(a) Notwithstanding anything herein to the contrary, (i) in each four consecutive fiscal quarter period there shall be at least two fiscal quarters in which the Cure Right is . The parties hereby acknowledge that this Section may not exercised, (ii) the Cure Amount shall be no greater than 100% of the amount required for purposes of complying with the Financial Performance Covenant, (iii) the Cure Right shall not be exercised more than five times during the term of this Agreement and (iv) no Specified Equity Contribution nor the proceeds thereof may be relied on for purposes of calculating any financial ratios (other than as applicable to the Financial Performance Covenant for purposes of increasing Consolidated EBITDA as provided in clause (aSection 7.03(a) above) or any available basket or thresholds under this Agreement and shall not result in any adjustment to any amounts or calculations other than the amount of the Consolidated EBITDA referred to in the extent provided in clause (a) aboveimmediately preceding sentence. Neither Agent nor any Lender shall exercise the right to accelerate the Loans or terminate the Revolver Commitments and none of Agent, any Lender or any other Secured Party shall exercise any right to foreclose on or take possession of the Collateral or exercise any other remedy pursuant to Section 10.1, the other Loan Documents or Applicable Law prior to the 15th Business Day after the date on which financial statements with respect to the fiscal quarter for which the Financial Performance Covenant is being measured are required to be delivered pursuant to Section 9.1.1(a) or (b) solely on the basis of an Event of Default having occurred and being continuing due to a breach of the Financial Performance Covenant (except to the extent that the Administrative Borrower has confirmed in writing that it does not intend to provide a Specified Equity Contribution). For the avoidance of doubt, from the time that the Loan Parties fail to comply with the Financial Performance Covenant until the time of the exercise of the Cure Right and the receipt by the Administrative Borrower of the Cure Amount, the Borrowers shall not be able to borrow any Loans hereunder or request the issuance, extension or renewal of any Letter of Credit hereunder.128498985v11
Appears in 1 contract
Cure Right. (a) Notwithstanding anything to the contrary contained in Section 10.111, in the event that the Loan Parties fail Borrower fails to comply with the covenant covenants contained in Section 9.3 10.02(a) through (f) (such covenants for such applicable periods being the “Specified Financial Performance CovenantCovenants”) with respect to any fiscal quarter, after the end of such fiscal quarter until the expiration of 15 Business Days subsequent to the date on which financial statements with respect to the fiscal quarter for which Financial Performance Covenant is being measured are required to be delivered pursuant to Section 9.1.1(a) or (b), any Specified Holder Borrower shall have the right within 90 (ninety) days of the end of the respective calendar year:
(i) to make issue additional shares of Equity Interests in exchange for cash (the “Equity Cure Right”), provided that such cash shall not be subject to a Specified Lien in favor of the lenders of Permitted Priority Debt,
(ii) to use existing cash in excess of the Liquidity required pursuant to Section 10.01 (the “Cash Cure Right”) or borrow Permitted Cure Debt (the “Subordinated Debt Cure Right” and, collectively with the Cash Cure Right and the Equity Contribution to Holdings (collectivelyCure Right, the “Cure Right”), and upon the receipt by the Administrative Borrower from Holdings (which provided that such cash shall contribute such amount not be subject to a Lien in cash as common equity favor of the Administrative lenders of Permitted Priority Debt, in an amount equal to (x) two (2) multiplied by (y) the Minimum Required Revenue for such period less Borrower) ’s actual annual Revenue for such period (the “Cure Amount”) ). In the case of the exercise of the Equity Cure Right or the Subordinated Debt Cure Right, the cash therefrom immediately shall be contributed as equity or subordinated debt (only as permitted pursuant to Section 9.01), as applicable, to Borrower. Upon the receipt by Borrower of the Cure Amount pursuant to the exercise by a Specified Holder of such Cure Right (and so long as such in the case of the exercise of the Equity Cure Amount is actually received by Right or the Administrative Borrower no later than 15 Business Days after the date on which financial statements with respect to the fiscal quarter for which the Financial Performance Covenant is being measured are required to be delivered pursuant to Section 9.1.1(a) or (b)Subordinated Debt Cure Right) and notice from the Administrative Borrower to Agent as to the fiscal quarter with respect to which such Cure Amount is made, then the Financial Performance Covenant shall be recalculated giving effect to the following pro forma adjustments (but without regard to any pro forma or actual reduction in Indebtedness in such fiscal quarter made with all or any portion of such Cure Amount or any portion application of the Cure Amount on as provided in Section 10.03(b) below (in the balance sheet case of the Administrative exercise of any Cure Right), such Cure Amount shall be deemed to constitute Revenue of Borrower and its Restricted Subsidiaries (including for purposes of determining the amount of Consolidated Total Debt), provided that, to the extent any portion of the Cure Amount is actually used to repay Indebtedness, such repayment Specified Financial Covenants and the effects thereof Specified Financial Covenants shall be regarded recalculated for all purposes of this Agreement in any quarter following under the quarter in which such Cure Right was exercised):
(i) Consolidated EBITDA shall be increased, solely for the purpose of measuring the Financial Performance Covenant and determining the existence of an Event of Default set forth in Section 10.1 resulting from a breach of the Financial Performance Covenant and not for any other purpose under this Agreement, by an amount equal to the Cure Amount for such fiscal quarter and any four fiscal quarter period that contains such fiscal quarter; and
(ii) ifLoan Documents. If, after giving effect to the foregoing recalculationsrecalculation, the Loan Parties Borrower shall then be in compliance with the requirements of the Specified Financial Performance CovenantCovenants, the Loan Parties Borrower shall be deemed to have satisfied the requirements of the Specified Financial Performance Covenant Covenants 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 any the applicable breach or default of the Specified Financial Performance Covenant Covenants that had occurred occurred, the related Default and Event of Default, shall be deemed cured without any further action of Borrower or Lenders for all purposes under the Loan Documents. Upon the Lenders’ receipt of this Agreement.
a notice from Borrower that it intends to exercise the Equity Cure Right with respect to Section 10.02(a) or (ab) Notwithstanding anything herein (the “Notice of Intent to Cure”), then, so long as no other Event of Default then exists and solely with respect to Borrower’s exercise of the Equity Cure Right and Subordinated Debt Cure Right, until the 90th day subsequent to the contrarycalendar year to which such Notice of Intent to Cure relates, (i) in each four consecutive fiscal quarter period there shall be at least two fiscal quarters in which neither the Cure Right is not exercised, (ii) the Cure Amount shall be no greater than 100% of the amount required for purposes of complying with the Financial Performance Covenant, (iii) the Cure Right shall not be exercised more than five times during the term of this Agreement and (iv) no Specified Equity Contribution nor the proceeds thereof may be relied on for purposes of calculating any financial ratios (other than as applicable to the Financial Performance Covenant for purposes of increasing Consolidated EBITDA as provided in clause (a) above) or any available basket or thresholds under this Agreement and shall not result in any adjustment to any amounts or calculations other than the amount of the Consolidated EBITDA to the extent provided in clause (a) above. Neither Control Agent nor any Lender shall exercise the right to accelerate the Loans or terminate the Revolver Commitments and none of Agent, neither the Control Agent nor any Lender or any other Secured Party shall exercise any right to foreclose on or take possession of the Collateral or exercise any other remedy pursuant to Section 10.1, the other Loan Documents or Applicable Law prior to the 15th Business Day after the date on which financial statements with respect to the fiscal quarter for which the Financial Performance Covenant is being measured are required to be delivered pursuant to Section 9.1.1(a) or (b) solely on the basis of an Event of Default having occurred and being continuing due under Section 10.02(a) or (b) in respect of such calendar year; provided that if Borrower fails to a raise the Cure Amount prior to the 90th day subsequent to the calendar year to which such Notice of Intent to Cure relates, the applicable breach of the Specified Financial Performance Covenant (except Covenants, the related Default and Event of Default, shall be deemed to the extent that the Administrative Borrower has confirmed in writing that it does not intend to provide a Specified Equity Contribution). For the avoidance of doubt, from the time that the Loan Parties fail to comply with the Financial Performance Covenant until the time have occurred as of the exercise day following the last day of the Cure Right such calendar year and the receipt by the Administrative Borrower Post-Default Rate shall be deemed to have been implemented as of the Cure Amount, the Borrowers shall not be able to borrow any Loans hereunder or request the issuance, extension or renewal of any Letter of Credit hereundersuch date.
Appears in 1 contract
Sources: Term Loan Agreement (Avinger Inc)
Cure Right. (a) Notwithstanding anything to the contrary contained in Section 10.1Sections 8.1 and 8.2, in the event that the Loan Parties fail if Parent fails to comply with the covenant contained in Section 9.3 (the “Financial Performance Covenant”) with respect to any fiscal quarter, after Condition Covenant as of the end of such fiscal quarter any Fiscal Quarter in which it is in effect, until the expiration of 15 the tenth Business Days Day subsequent to the date on which financial statements with respect to the fiscal quarter Compliance Certificate for which Financial Performance Covenant such Fiscal Quarter is being measured are required to be delivered pursuant to Section 9.1.1(a5.1(c) or (bthe “Cure Expiration Date”), Parent or the Relevant Public Company or any Specified Holder Ultimate Parent Company shall have the right to make a Specified Equity Contribution issue Permitted Cure Securities for cash (the amount thereof, the “Cure Amount”), so long as such cash is immediately contributed to Holdings the capital of Parent or the Relevant Public Company as common equity (collectively, the “Cure Right”); provided, (i) no more than five (5) Cure Rights may be exercised after the Closing Date; (ii) no more than two (2) Cure Rights may be exercised during any consecutive four Fiscal Quarters; and upon (iii) no Cure Amount shall exceed the amount necessary to cause compliance with the applicable Financial Condition Covenant for the period then ended.
(b) Upon the receipt by Parent or the Administrative Borrower from Holdings (which shall contribute such amount in cash as common equity Relevant Public Company of the Administrative Borrower) cash proceeds of any capital contribution referred to in Section 8.4(a), Consolidated Adjusted EBITDA for the Fiscal Quarter as to which such Cure Right is exercised (the “Cure AmountRight Fiscal Quarter”) pursuant shall be deemed to have been increased by the exercise by a Specified Holder of Cure Amount in determining the Financial Condition Covenant for such Cure Right (Fiscal Quarter and so long as such Cure Amount is actually received by the Administrative Borrower no later than 15 Business Days after the date on which financial statements with respect to the fiscal quarter for which the Financial Performance Covenant is being measured are required to be delivered pursuant to Section 9.1.1(a) or (b)) and notice from the Administrative Borrower to Agent as to the fiscal quarter with respect to which such Cure Amount is made, then the Financial Performance Covenant shall be recalculated giving effect to the following pro forma adjustments (but without regard to any pro forma or actual reduction in Indebtedness in such fiscal quarter made with all or any portion of such Cure Amount or any portion of the Cure Amount on the balance sheet of the Administrative Borrower and its Restricted Subsidiaries (including for purposes of determining the amount of Consolidated Total Debt), provided that, to the extent any portion of the Cure Amount is actually used to repay Indebtedness, such repayment and the effects thereof shall be regarded for all purposes of this Agreement in any quarter following the quarter in which subsequent period that includes such Cure Right was exercised):
Fiscal Quarter; provided, (i) no increase in Consolidated Adjusted EBITDA on account of the exercise of any Cure Right shall be increased, solely for the purpose of measuring the Financial Performance Covenant and determining the existence of an Event of Default set forth in Section 10.1 resulting from a breach of the Financial Performance Covenant and not applicable for any other purpose under this AgreementAgreement or any other Credit Document, by an including determining of any applicable margin or fee or the availability or amount equal to of any covenant basket, carve-out or compliance on a Pro Forma Basis with any of the Cure Amount for such fiscal quarter and any four fiscal quarter period that contains such fiscal quarterFinancial Condition Covenant; and
(ii) if, the prepayment of the Loans with the proceeds of any Cure Amount shall be disregarded in determining the Financial Condition Covenant for the applicable Cure Right Fiscal Quarter and for any subsequent period that includes such Cure Right Fiscal Quarter; and (iii) no Cure Amount shall be “netted” in the determination of Indebtedness for the calculation of any leverage ratio (including the Financial Condition Covenant) in any period that includes the Cure Right Fiscal Quarter.
(c) If immediately after giving effect to the foregoing recalculationsrecalculations set forth in Section 8.4(b), the Loan Parties Parent shall then be in compliance with the requirements of the Financial Performance Condition Covenant, the Loan Parties Parent shall be deemed to have satisfied the requirements of the Financial Performance Covenant such covenants 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 Event of Default with respect to any applicable breach or default of the Financial Performance Covenant such covenant that had occurred shall be deemed cured for all purposes of this Agreement.
(a) Notwithstanding anything herein to the contrary, (i) in each four consecutive fiscal quarter period there shall be at least two fiscal quarters in which the Cure Right is not exercised, (ii) the Cure Amount shall be no greater than 100% of the amount required for purposes of complying with the Financial Performance Covenant, (iii) the Cure Right shall not be exercised more than five times during the term of this Agreement and (iv) no Specified Equity Contribution nor the proceeds thereof may be relied on for purposes of calculating any financial ratios (other than as applicable to Credit Documents; provided, neither the Financial Performance Covenant for purposes of increasing Consolidated EBITDA as provided in clause (a) above) or any available basket or thresholds under this Agreement and shall not result in any adjustment to any amounts or calculations other than the amount of the Consolidated EBITDA to the extent provided in clause (a) above. Neither Administrative Agent nor any Lender shall may exercise the right to accelerate the Loans any rights or terminate the Revolver Commitments and none of Agent, remedies (including any Lender rights or remedies under Section 8.2 or under any other Secured Party shall exercise any right to foreclose on Credit Document or take possession of the Collateral or exercise any other remedy pursuant to Section 10.1, the other Loan Documents or Applicable Law prior to the 15th Business Day after the date on which financial statements with respect to acceleration of the fiscal quarter for which the Financial Performance Covenant is being measured are required to be delivered pursuant to Section 9.1.1(a) Loans, termination of Commitments, foreclosure or (bpossession of any Collateral or otherwise) solely on the basis of an any actual or purported Default or Event of Default having occurred and being continuing due to a breach of the Financial Performance Covenant (except to the extent that the Administrative Borrower has confirmed in writing that it does not intend to provide a Specified Equity Contribution). For the avoidance of doubt, from the time that the Loan Parties fail for failure to comply with the Financial Performance Condition Covenant until the time of the exercise of and unless the Cure Right Expiration Date has occurred without the Cure Amount having been received; provided further at any time a Financial Condition Covenant Event of Default shall have occurred and be continuing, notwithstanding the receipt delivery by the Administrative Borrower Representative of written notice stating its intention to cure such Financial Condition Covenant Event of Default, no Lender shall be required to make any extension of credit hereunder until the Cure Amount, Amount is actually received by Parent or the Borrowers shall not be able to borrow any Loans hereunder or request the issuance, extension or renewal of any Letter of Credit hereunderRelevant Public Company.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (NRC Group Holdings Corp.)
Cure Right. (a) Notwithstanding anything to the contrary contained in Section 10.1herein, in the event that the Loan Parties fail to comply (x) with the covenant contained in requirements of Section 9.3 6.5(a) for any fiscal quarter (the “Financial Performance CovenantApplicable Fiscal Quarter”), then until the tenth (10th) Business Day (the “FCCR Cure Notice Deadline”) with respect to any fiscal quarter, after the end earlier of such fiscal quarter until (a) delivery of the expiration of 15 Business Days subsequent to Compliance Certificate for the date on which financial statements with respect to the fiscal quarter for which Financial Performance Covenant is being measured are required to be delivered pursuant to Section 9.1.1(a) Applicable Fiscal Quarter, or (b) the due date for delivery of the Compliance Certificate for the Applicable Fiscal Quarter as required by Section 9.7 or 9.8 hereof, or (y) with the requirements of Section 6.5(b) on any date of determination (the “Applicable Liquidity Shortfall Date”), then until the third (3rd) Business Day (the “Liquidity Cure Notice Deadline”) after the Liquidity Shortfall Date, any Specified Holder holder of Equity Interests of AmeriGas or any of its direct or indirect Parents shall have the right to make a Specified Equity Contribution contribution to Holdings its equity in the form of common equity for cash and contribute the cash proceeds therefrom to AmeriGas and/or AmeriGas shall have the right to issue, obtain or recognize a contribution to its equity in the form of common equity for cash (collectively, the “Cure Right”), and upon the receipt by the Administrative Borrower from Holdings (which shall contribute AmeriGas of such amount in cash as common equity of the Administrative Borrower) proceeds (the “Cure Amount”) ), pursuant to the exercise by a Specified Holder of such Cure Right (and so long Right, the calculation of Fixed Charge Coverage Ratio as such Cure Amount is actually received by used in the Administrative Borrower no later than 15 Business Days after the date on which financial statements with respect to the fiscal quarter for which the Financial Performance Covenant is being measured are required to be delivered pursuant to covenant set forth in Section 9.1.1(a6.5(a) or (b)) and notice from the Administrative Borrower to Agent calculation of Liquidity shall, as to the fiscal quarter with respect to which such Cure Amount is madeapplicable, then the Financial Performance Covenant shall be recalculated giving effect to the following pro forma adjustments (but without regard to any pro forma or actual reduction in Indebtedness in such fiscal quarter made with all or any portion so long as the cash proceeds of the exercise of such Cure Amount Right are received by AmeriGas no later than five (5) Business Days after the FCCR Cure Notice Deadline or any portion of Liquidity Cure Notice Deadline (as applicable, the “Anticipated Cure Amount on the balance sheet of the Administrative Borrower Deadline”) and its Restricted Subsidiaries (including remitted to Agent for purposes of determining the amount of Consolidated Total Debt), provided that, application to the extent Obligations in accordance with the terms hereof (without any portion of corresponding reduction to the Cure Amount is actually used to repay Indebtedness, such repayment and the effects thereof shall be regarded for all purposes of this Agreement in any quarter following the quarter in which such Cure Right was exercisedRevolving Commitments or Maximum Revolving Advance Amount):
(ia) Consolidated With respect to a failure to comply with Section 6.5(a) for the Applicable Fiscal Quarter, EBITDA shall be increased, solely for the purpose of measuring the Financial Performance Covenant and determining the existence of an Event of Default Fixed Charge Coverage Ratio set forth in Section 10.1 resulting from a breach of 6.5(a) for the Financial Performance Covenant Applicable Fiscal Quarter (and the applicable subsequent periods which include the Applicable Fiscal Quarter) and not for any other purpose under this AgreementAgreement (including but not limited to determining the availability or amount of any covenant baskets or carve-outs), by an amount equal to the Cure Amount; provided that the receipt by AmeriGas of the Cure Amount pursuant to the Cure Right shall be deemed to have no other effect whatsoever under this Agreement (including but not limited to determining the availability or amount of any covenant baskets or carve-outs);
(b) With respect to a failure to comply with Section 6.5(b) for any Applicable Liquidity Shortfall Date, the Liquidity covenant shall be recalculated as of the Applicable Liquidity Shortfall Date and the outstanding Revolving Advances as of the Applicable Liquidity Shortfall Date shall, for such fiscal quarter and any four fiscal quarter period that contains such fiscal quarter; andcalculation, be decreased by an amount equal to the Cure Amount actually applied to the outstanding Revolving Advances;
(iic) ifIf, after giving effect to the foregoing recalculations, the Loan Parties shall then be in compliance with the requirements of the Financial Performance CovenantFixed Charge Coverage Ratio set forth in Section 6.5(a) or the Liquidity covenant set forth in Section 6.5(b), as applicable, the Loan Parties shall be deemed to have satisfied the requirements of the Financial Performance Covenant Section 6.5(a) or Section 6.5(b), as applicable, as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, and any the applicable breach or default of the Financial Performance Covenant financial covenant set forth in Section 6.5(a) or 6.5(b), as applicable, that had occurred shall be deemed cured for the purposes of this Agreement.
(a) Notwithstanding anything herein to the contrary, (i) in each four consecutive fiscal quarter period there shall be at least two fiscal quarters in which the Cure Right is not exercised, (ii) the Cure Amount shall be no greater than 100% of the amount required for purposes of complying with the Financial Performance Covenant, (iii) the Cure Right shall not be exercised more than five times during the term of this Agreement and (iv) no Specified Equity Contribution nor the proceeds thereof may be relied on for purposes of calculating any financial ratios (other than as applicable to the Financial Performance Covenant for purposes of increasing Consolidated EBITDA as provided in clause (a) above) or any available basket or thresholds under this Agreement and shall not result in any adjustment to any amounts or calculations other than the amount of the Consolidated EBITDA to the extent provided in clause (a) above. Neither Agent nor any Lender shall exercise the right to accelerate the Loans or terminate the Revolver Commitments and none of Agent, any Lender or any other Secured Party shall exercise any right to foreclose on or take possession of the Collateral or exercise any other remedy pursuant to Section 10.1, the other Loan Documents or Applicable Law prior to the 15th Business Day after the date on which financial statements with respect to the fiscal quarter for which the Financial Performance Covenant is being measured are required to be delivered pursuant to Section 9.1.1(a) or (b) solely on the basis of an Event of Default having occurred and being continuing due to a breach of the Financial Performance Covenant (except to the extent that the Administrative Borrower has confirmed in writing that it does not intend to provide a Specified Equity Contribution). For the avoidance of doubt, from the time that the Loan Parties fail to comply with the Financial Performance Covenant until the time of the exercise of the Cure Right and the receipt by the Administrative Borrower of the Cure Amount, the Borrowers shall not be able to borrow any Loans hereunder or request the issuance, extension or renewal of any Letter of Credit hereunder.; and
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Ugi Corp /Pa/)
Cure Right. (a) Notwithstanding anything to the contrary contained in Section 10.1, in In the event that the Loan Parties Borrowers fail to comply with the covenant contained requirements of the financial covenants set forth in Section 9.3 (the “Financial Performance Covenant”7.03(a) with respect to any fiscal quarterand Section 7.03(c), after the end of such fiscal quarter until the expiration of 15 the 10th Business Days subsequent to Day after the date on which financial statements with respect to the fiscal quarter for which Financial Performance Covenant is being measured are required to be delivered pursuant with respect to Section 9.1.1(a) or (b)the applicable fiscal month hereunder, any Specified Holder the Administrative Borrower shall have the right to make a Specified issue Permitted Cure Equity Contribution for cash or otherwise receive cash contributions to Holdings the capital of the Administrative Borrower, and, in each case, to contribute any such cash to the capital of the Borrowers, and apply the amount of the proceeds thereof to increase Consolidated Revenue or comply with the Liquidity Differential, as applicable with respect to such applicable quarter (collectively, the “Cure Right”), and upon the receipt by the Administrative Borrower from Holdings ; provided that (which shall contribute a) such amount in cash as common equity of the Administrative Borrower) (the “Cure Amount”) pursuant to the exercise by a Specified Holder of such Cure Right (and so long as such Cure Amount is proceeds are actually received by the Administrative Borrower Borrowers no later than 15 10 Business Days after the date on which financial statements with respect to the fiscal quarter for which the Financial Performance Covenant is being measured are required to be delivered pursuant to Section 9.1.1(a) or (b)) and notice from the Administrative Borrower to Agent as to the fiscal quarter with respect to which such fiscal month hereunder, (b) such proceeds do not exceed the aggregate amount necessary to cure (by addition to Consolidated Revenue) such Event of Default under Section 7.03(a) for such period, (c) the Cure Amount is madeRight shall not be exercised more than 5 times during the term of the Loans, then the Financial Performance Covenant (d) in each period of four Fiscal Quarters, there shall be recalculated giving effect to no consecutive Fiscal Quarters during which the following Cure Right is exercised, (e) there shall be no pro forma adjustments (but without regard to any pro forma or actual reduction in Indebtedness in such fiscal quarter made with all or any portion of such Cure Amount or any portion the proceeds of the Cure Amount on the balance sheet of the Administrative Borrower and its Restricted Subsidiaries (including Right for purposes of determining compliance with the amount of Consolidated Total Debt)financial covenant in Section 7.03(a) or for determining any pricing, provided that, financial covenant based conditions or baskets with respect to the extent any portion of the Cure Amount is actually used to repay Indebtedness, such repayment and the effects thereof shall be regarded for all purposes of this Agreement covenants contained in any quarter following the quarter in which such Cure Right was exercised):
(i) Consolidated EBITDA shall be increased, solely for the purpose of measuring the Financial Performance Covenant and determining the existence of an Event of Default set forth in Section 10.1 resulting from a breach of the Financial Performance Covenant and not for any other purpose under this Agreement, by an amount equal to in each case in the Fiscal Quarter in which the Cure Amount for Right is used or subsequent periods that include such fiscal quarter Fiscal Quarter, and any four fiscal quarter period that contains (f) such fiscal quarter; and
(ii) ifproceeds shall be applied to prepay the Loans in accordance with Section 2.05(c)(iii). If, after giving effect to the foregoing recalculationspro forma adjustment (but not, for the avoidance of doubt, giving pro forma adjustment to any repayment of Indebtedness in connection therewith), the Loan Parties shall then be Borrowers are in compliance with the requirements of the Financial Performance Covenantfinancial covenant set forth in Section 7.03(a), the Loan Parties Borrowers shall be deemed to have satisfied the requirements of the Financial Performance Covenant such Section as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at on such date, and any the applicable breach or default of the Financial Performance Covenant such Section 7.03(a) that had occurred shall be deemed cured for purposes of this Agreement.
(a) Notwithstanding anything herein to the contrary, (i) in each four consecutive fiscal quarter period there shall be at least two fiscal quarters in which the Cure Right is . The parties hereby acknowledge that this Section may not exercised, (ii) the Cure Amount shall be no greater than 100% of the amount required for purposes of complying with the Financial Performance Covenant, (iii) the Cure Right shall not be exercised more than five times during the term of this Agreement and (iv) no Specified Equity Contribution nor the proceeds thereof may be relied on for purposes of calculating any financial ratios (other than as applicable to the Financial Performance Covenant for purposes of increasing Consolidated EBITDA as provided in clause (aSection 7.03(a) above) or any available basket or thresholds under this Agreement and shall not result in any adjustment to any amounts or calculations other than the amount of the Consolidated EBITDA Revenue referred to in the extent provided in clause (a) above. Neither Agent nor any Lender shall exercise the right to accelerate the Loans or terminate the Revolver Commitments and none of Agent, any Lender or any other Secured Party shall exercise any right to foreclose on or take possession of the Collateral or exercise any other remedy pursuant to Section 10.1, the other Loan Documents or Applicable Law prior to the 15th Business Day after the date on which financial statements with respect to the fiscal quarter for which the Financial Performance Covenant is being measured are required to be delivered pursuant to Section 9.1.1(a) or (b) solely on the basis of an Event of Default having occurred and being continuing due to a breach of the Financial Performance Covenant (except to the extent that the Administrative Borrower has confirmed in writing that it does not intend to provide a Specified Equity Contribution). For the avoidance of doubt, from the time that the Loan Parties fail to comply with the Financial Performance Covenant until the time of the exercise of the Cure Right and the receipt by the Administrative Borrower of the Cure Amount, the Borrowers shall not be able to borrow any Loans hereunder or request the issuance, extension or renewal of any Letter of Credit hereunderimmediately preceding sentence.
Appears in 1 contract
Sources: Financing Agreement (Colonnade Acquisition Corp. II)
Cure Right. (a) Notwithstanding anything to the contrary contained in Section 10.111, in the event that the Loan Parties fail Borrower fails to comply with the covenant covenants contained in Section 9.3 10.02(a) through (g) (such covenants for such applicable periods being the “Specified Financial Covenants”), Borrower shall have the right, within the period beginning ninety (90) days prior to and ending sixty (60) days after, the end of the respective calendar year: [*] – indicates deleted language 61
(i) to issue additional shares of Equity Interests in exchange for cash (the “Financial Performance CovenantEquity Cure Right”) with respect to any fiscal quarter, after the end of such fiscal quarter until the expiration of 15 Business Days subsequent to the date on which financial statements with respect to the fiscal quarter for which Financial Performance Covenant is being measured are required to be delivered pursuant to Section 9.1.1(a) or (b), any Specified Holder shall have or
(ii) to borrow Permitted Cure Debt (the right to make a Specified “Subordinated Debt Cure Right” and, collectively with the Equity Contribution to Holdings (collectivelyCure Right, the “Cure Right”), in an amount equal to (x) two and upon one half (2.5) multiplied by (y), at the receipt by election of Borrower as to the Administrative Borrower from Holdings applicable calendar year, such election to be made within sixty (which shall contribute such amount in cash as common equity 60) days after the end of the Administrative applicable calendar year by written notice to the Lenders, (1) the Minimum Required Revenue less Borrower’s actual Revenue for such period or (2) the Minimum Required EBITDA less Borrower’s actual EBITDA for such period (in each case, as applicable to such calendar year) (the “Cure Amount”). The cash therefrom immediately shall be contributed as equity or subordinated debt (only as permitted pursuant to Section 9.01), as applicable, to Borrower, and within sixty (60) days of the end of the respective calendar year, pursuant to the exercise by a Specified Holder of such Cure Right (and so long as Right, such Cure Amount is actually received by cash in the Administrative Borrower no later than 15 Business Days after the date on which financial statements with respect to the fiscal quarter for which the Financial Performance Covenant is being measured are required to be delivered pursuant to Section 9.1.1(a) or (b)) and notice from the Administrative Borrower to Agent as to the fiscal quarter with respect to which such Cure Amount is made, then the Financial Performance Covenant shall be recalculated giving effect to the following pro forma adjustments (but without regard to any pro forma or actual reduction in Indebtedness in such fiscal quarter made with all or any portion of such Cure Amount or any portion amount of the Cure Amount on shall be deposited in a segregated, blocked account (the balance sheet “Cure Account”) and, once so deposited, shall be deemed to constitute Revenue or EBITDA of the Administrative Borrower and its Restricted Subsidiaries (including per Borrower’s election for such calendar year for purposes of determining the amount of Consolidated Total Debt), provided that, to the extent any portion of the Cure Amount is actually used to repay Indebtedness, such repayment Specified Financial Covenants and the effects thereof Specified Financial Covenants shall be regarded recalculated for all purposes of this Agreement in any quarter following under the quarter in which such Cure Right was exercised):
(i) Consolidated EBITDA shall be increased, solely for the purpose of measuring the Financial Performance Covenant and determining the existence of an Event of Default set forth in Section 10.1 resulting from a breach of the Financial Performance Covenant and not for any other purpose under this Agreement, by an amount equal to the Cure Amount for such fiscal quarter and any four fiscal quarter period that contains such fiscal quarter; and
(ii) ifLoan Documents. If, after giving effect to the foregoing recalculationsrecalculation, the Loan Parties Borrower shall then be in compliance with the requirements of the Specified Financial Performance CovenantCovenants, the Loan Parties Borrower shall be deemed to have satisfied the requirements of the Specified Financial Performance Covenant Covenants 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 any the applicable breach or default of the Specified Financial Performance Covenant Covenants that had occurred occurred, the related Default and Event of Default, shall be deemed cured without any further action of Borrower or Lenders for all purposes under the Loan Documents. The Cure Account shall contain only cash and Permitted Cash Equivalent Investments and be subject to a control agreement in favor of this Agreement.
(a) Notwithstanding anything herein to the contrary, (i) Control Agent. Earnings on investments in each four consecutive fiscal quarter period there shall be at least two fiscal quarters in which the Cure Right is not exercised, (ii) Account will remain in the Cure Amount shall be no greater than 100% of the amount required for purposes of complying with the Financial Performance Covenant, (iiiAccount until released on approval as pursuant to Sections 10.03(b) the Cure Right shall not be exercised more than five times during the term of this Agreement and (ivc) no Specified Equity Contribution nor the proceeds thereof may be relied on for purposes of calculating any financial ratios (other than as applicable to the Financial Performance Covenant for purposes of increasing Consolidated EBITDA as provided in clause (a) above) or any available basket or thresholds under this Agreement and shall not result in any adjustment to any amounts or calculations other than the amount of the Consolidated EBITDA to the extent provided in clause (a) above. Neither Agent nor any Lender shall exercise the right to accelerate the Loans or terminate the Revolver Commitments and none of Agent, any Lender or any other Secured Party shall exercise any right to foreclose on or take possession of the Collateral or exercise any other remedy pursuant to Section 10.1, the other Loan Documents or Applicable Law prior to the 15th Business Day after the date on which financial statements with respect to the fiscal quarter for which the Financial Performance Covenant is being measured are required to be delivered pursuant to Section 9.1.1(a) or (b) solely on the basis of an Event of Default having occurred and being continuing due to a breach of the Financial Performance Covenant (except to the extent that the Administrative Borrower has confirmed in writing that it does not intend to provide a Specified Equity Contribution). For the avoidance of doubt, from the time that the Loan Parties fail to comply with the Financial Performance Covenant until the time of the exercise of the Cure Right and the receipt by the Administrative Borrower of the Cure Amount, the Borrowers shall not be able to borrow any Loans hereunder or request the issuance, extension or renewal of any Letter of Credit hereunderbelow.
Appears in 1 contract
Sources: Term Loan Agreement (Navidea Biopharmaceuticals, Inc.)
Cure Right. (a) Notwithstanding anything to the contrary contained in Section 10.1, in In the event that the Loan Parties fail Borrower fails to comply with the covenant contained requirements of Section 6.01(b) or Section 6.01(c), beginning on the first date after the last day of the Fiscal Quarter for which the financial covenants in Section 9.3 (the “Financial Performance Covenant”6.01(b) with respect to any fiscal quarterand Section 6.01(c) are being tested, after the end of such fiscal quarter until the expiration of 15 the tenth (10th) Business Days Day subsequent to the date on which financial statements with respect to the fiscal quarter compliance certificate for which Financial Performance Covenant calculating the PDP Asset Coverage Ratio and the Leverage Ratio is being measured are required to be delivered pursuant to Section 9.1.1(a) or (b), any Specified Holder shall have the right to make a Specified Equity Contribution to Holdings (collectively, the “Cure Right”), and upon the receipt by the Administrative Borrower from Holdings (which shall contribute such amount in cash as common equity of the Administrative Borrower5.01(c) (the “Cure Period”), Borrower shall be permitted to cure such failure (a “Cure Right”) to comply by requesting that the PDP Asset Coverage Ratio and/or the Leverage Ratio be recalculated by decreasing Total Net Debt as of the last day of such Fiscal Quarter upon the receipt of proceeds from a Specified Equity Contribution during such Cure Period (such amount, a “Cure Amount”); provided that (i) pursuant the Cure Amount shall not be greater than the amount required to cause Borrower to be in compliance with Section 6.01(b) or Section 6.01(c); (ii) a single Cure Amount may be applied to cure both a PDP Asset Coverage Ratio and Leverage Ratio default during the exercise by a Specified Holder of such same Cure Right Period; (and so long as iii) such Cure Amount is actually received by the Administrative Borrower no later than 15 Business Days after the date on which financial statements with respect to the fiscal quarter for which the Financial Performance Covenant is being measured are required to shall be delivered applied as a prepayment of outstanding Term Loans and treated as an optional prepayment made pursuant to Section 9.1.1(a) or (b)) and notice from the Administrative Borrower to Agent as to the fiscal quarter with respect to which such Cure Amount is made, then the Financial Performance Covenant shall be recalculated giving effect to the following pro forma adjustments (but without regard to any pro forma or actual reduction in Indebtedness in such fiscal quarter made with all or any portion of such Cure Amount or any portion of the Cure Amount on the balance sheet of the Administrative Borrower and its Restricted Subsidiaries 2.05 (including for purposes of determining the amount of Consolidated Applicable Premium) and any decrease in Total Debt), provided that, to the extent any portion Net Debt as of the Cure Amount is actually used to repay Indebtedness, last day of any Fiscal Quarter as a result of such repayment and the effects thereof prepayment shall be regarded for all purposes of this Agreement in any quarter following the quarter in which such Cure Right was exercised):
(i) Consolidated EBITDA shall be increased, applied solely for the purpose of measuring the Financial Performance Covenant and determining the existence of an Event of Default set forth in compliance or non-compliance with Section 10.1 resulting from a breach 6.01(b) or Section 6.01(c) as of the Financial Performance Covenant last day of such Fiscal Quarter and not for any other purpose under this Agreementany Loan Document; (iv) Borrower may not exercise the Cure Right (A) more than two times during any period of four consecutive Fiscal Quarters or (B) more than four times prior to the Maturity Date (provided that, by if Borrower exercises the Cure Right prior to the date financial statements are required to be delivered for a relevant Fiscal Quarter solely with respect to an amount equal to anticipated PDP Asset Coverage Ratio default or Leverage Ratio default and the Cure Amount for associated therewith is insufficient to cure a PDP Asset Coverage Ratio default or Leverage Ratio default with respect to such fiscal quarter Fiscal Quarter, any subsequent exercise of the Cure Right prior to the expiration of the applicable Cure Period to ‘top-up’ such Cure Amount shall not count as an additional exercise of the Cure Right); and (v) any four fiscal quarter period that contains such fiscal quarter; and
(ii) if, cure of both a PDP Asset Coverage Ratio default and a Leverage Ratio default in one Fiscal Quarter shall count as a single Specified Equity Contribution. If after giving effect to the foregoing recalculations, the Loan Parties shall Borrower would then be in compliance with the requirements Section 6.01(b) or Section 6.01(c) as of the Financial Performance Covenantlast day of the applicable Fiscal Quarter, the Loan Parties Borrower shall be deemed to have satisfied the requirements of the Financial Performance Covenant Section 6.01(b) or Section 6.01(c), as applicable, as of the relevant date last day of determination such Fiscal Quarter with the same effect as though there had been no failure to comply therewith at such date, and any the applicable breach or default of the Financial Performance Covenant any such covenant that had occurred shall be deemed cured for purposes of this Agreement.
(a) Notwithstanding anything herein to the contrary, (i) in each four consecutive fiscal quarter period there shall be at least two fiscal quarters in which the Cure Right is not exercised, (ii) the Cure Amount shall be no greater than 100% of the amount required for purposes of complying with the Financial Performance Covenant, (iii) the Cure Right shall not be exercised more than five times during the term purpose of this Agreement and (iv) no Specified Equity Contribution nor the proceeds thereof may be relied on for purposes of calculating any financial ratios (other than as applicable to the Financial Performance Covenant for purposes of increasing Consolidated EBITDA as provided in clause (a) above) or any available basket or thresholds under this Agreement and shall not result in any adjustment to any amounts or calculations other than the amount of the Consolidated EBITDA to the extent provided in clause (a) aboveLoan Documents. Neither the Administrative Agent nor any Lender shall exercise the right to accelerate the Loans or terminate the Revolver Commitments and none of Agent, Administrative Agent or any Lender or any other Secured Party shall exercise any right to foreclose on or take possession of the Collateral or exercise any other remedy pursuant to Section 10.18.02, the other Loan Documents or Applicable Law applicable law prior to the 15th Business Day after the date on which financial statements with respect to the fiscal quarter for which the Financial Performance Covenant is being measured are required to be delivered pursuant to Section 9.1.1(a) or (b) end of such Cure Period solely on the basis of an Event of Default having occurred and being continuing due to a breach of the Financial Performance Covenant under Section 6.01(b) or Section 6.01(c) (except to the extent that the Administrative Borrower ▇▇▇▇▇▇▇▇ has confirmed in writing that it does not intend to provide a Specified Equity Contributionexercise the Cure Right). For the avoidance of doubt; provided, from the time however, that the Loan Parties fail to comply with the Financial Performance Covenant until the time of the exercise of the Cure Right shall not affect in any way the rights and remedies of the receipt by Lenders or the Administrative Borrower Agent with respect to any other Default or Event of the Cure Amount, the Borrowers shall not be able to borrow any Loans hereunder or request the issuance, extension or renewal of any Letter of Credit hereunderDefault.
Appears in 1 contract
Cure Right. (ai) Notwithstanding anything to the contrary contained in this Section 10.19.13, in the event that the Loan Parties Borrowers fail or reasonably believes they will fail to comply with the requirements of the financial covenant contained set forth in Section 9.3 9.13(c) (the “Financial Performance Covenant”) with respect to any fiscal quarter, after the end of such fiscal quarter until the expiration of 15 the day that is ten (10) Business Days subsequent after the earlier to occur of (i) the date the Compliance Certificate calculating such covenants is actually delivered to the Administrative Agent and (ii) the date on which financial statements with respect to the fiscal quarter for which Financial Performance Covenant Compliance Certificate calculating such covenants is being measured are required to be delivered pursuant to Section 9.1.1(a8.01(d) or (b), any Specified Holder Administrative Borrower shall have the right to make a Specified Equity Contribution cure (and shall be deemed to Holdings have cured) any Event of Default resulting from such breach if Administrative Borrower issues Capital Stock (collectivelyother than Disqualified Capital Stock), directly or indirectly, to the equity holders of Administrative Borrower for cash, or otherwise receives cash contributions to the capital of Administrative Borrower (the “Cure Right”), and upon the receipt by the Administrative Borrower from Holdings (which shall contribute ) in such amount amounts as are necessary to be in cash as common equity of the Administrative Borrower) compliance with such Financial Covenant (the “Cure Amount”) pursuant ), which Cure Amount shall be deemed to increase LTM Revenue for such period and shall be so calculated for any subsequent period that includes the exercise by a Specified Holder Fiscal Quarter in respect of such which the Cure Right (and so long as such was exercised. In no event shall the Cure Amount is actually received by be greater than the amount required for purposes of complying with the Financial Covenant as set forth herein. The Cure Right may not be exercised more than two (2) times in any four (4) consecutive quarterly periods, and not more than five (5) times during the term of this Agreement.
(ii) Upon the Administrative Borrower no later than 15 Business Days after Agent’s receipt of the date on which financial statements with respect to the fiscal quarter for which Cure Amount, the Financial Performance Covenant is being measured are required to be delivered pursuant to Section 9.1.1(a) or (b)) and notice from the Administrative Borrower to Agent as to the fiscal quarter with respect to which such Cure Amount is made, then the Financial Performance Covenant shall be recalculated giving effect to and if the following pro forma adjustments (but without regard to any pro forma or actual reduction in Indebtedness in such fiscal quarter made with all or any portion of such Cure Amount or any portion of the Cure Amount on the balance sheet of the Administrative Borrower and its Restricted Subsidiaries (including for purposes of determining the amount of Consolidated Total Debt), provided that, to the extent any portion of the Cure Amount is actually used to repay Indebtedness, such repayment and the effects thereof shall be regarded for all purposes of this Agreement in any quarter following the quarter in which such Cure Right was exercised):
(i) Consolidated EBITDA shall be increased, solely for the purpose of measuring the Financial Performance Covenant and determining the existence of an Event of Default set forth in Section 10.1 resulting from a breach of the Financial Performance Covenant and not for any other purpose under this Agreement, by an amount equal to the Cure Amount for such fiscal quarter and any four fiscal quarter period that contains such fiscal quarter; and
(ii) if, after giving effect to the foregoing recalculations, the Loan Credit Parties shall then be in compliance with the requirements of the Financial Performance Covenant, then the Loan Credit Parties shall be deemed to have satisfied the requirements of the such Financial Performance 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 any the applicable breach or default of the Financial Performance Covenant that had occurred shall be deemed cured for the purposes of this Agreement.
(a) Notwithstanding anything herein ; it being understood and agreed that, upon receipt by Administrative Agent of a timely irrevocable written notice from Administrative Borrower stating that it intends to the contrary, (i) in each four consecutive fiscal quarter period there shall be at least two fiscal quarters in which exercise the Cure Right is not exercisedhereunder and until the expiration of the ten (10) Business Day period referenced above, neither Administrative Agent nor any Lender shall exercise any remedies (ii) including applying any Default Rate), or take any actions, against any Credit Party or any of its Subsidiaries or their respective assets or property as a result of any Event of Default arising solely due to the Cure Amount breach of the Financial Covenant; provided, that, subject to the foregoing, such Default or Event of Default shall be no greater than 100% deemed existing for all other purposes of the amount required for purposes Credit Documents. The resulting increase to LTM Revenue from the exercise of complying with the Financial Performance Covenant, (iii) the Cure Right shall not be exercised more than five times during the term of this Agreement and (iv) no Specified Equity Contribution nor the proceeds thereof may be relied on for purposes of calculating any financial ratios (other than as applicable to the Financial Performance Covenant for purposes of increasing Consolidated EBITDA as provided in clause (a) above) or any available basket or thresholds under this Agreement and shall not result in any adjustment to any amounts or calculations other than the amount of the LTM Revenue, Consolidated Adjusted EBITDA to the extent provided in clause (a) above. Neither Agent nor any Lender shall exercise the right to accelerate the Loans or terminate the Revolver Commitments and none of Agent, any Lender or any other Secured Party shall exercise financial definition for any right to foreclose on purposes under this Agreement or take possession any Credit Document, other than for purposes of calculating the Collateral or exercise any other remedy pursuant to Section 10.1, the other Loan Documents or Applicable Law prior to the 15th Business Day after the date on which financial statements with respect to the fiscal quarter for which the applicable Financial Performance Covenant is being measured are required to be delivered pursuant to Section 9.1.1(a) or (b) solely on the basis of an Event of Default having occurred and being continuing due to a breach of the Financial Performance Covenant (except to the extent that the Administrative Borrower has confirmed in writing that it does not intend to provide a Specified Equity Contribution). For the avoidance of doubt, from the time that the Loan Parties fail to comply with the Financial Performance Covenant until the time of the exercise of the Cure Right and the receipt by the Administrative Borrower of the Cure Amount, the Borrowers shall not be able to borrow any Loans hereunder or request the issuance, extension or renewal of any Letter of Credit hereunderCovenant.
Appears in 1 contract
Sources: Credit Agreement (Paragon 28, Inc.)
Cure Right. (a) Notwithstanding anything to the contrary contained in Section 10.1this Agreement, in the event that the Loan Parties Borrowers fail to comply with Section 6.2 as of the covenant contained in Section 9.3 (the “Financial Performance Covenant”) with respect to end of any fiscal quarter, after the end of such fiscal quarter until the expiration of 15 the fifteenth (15th) Business Days Day subsequent to the date on which financial statements with respect to the Compliance Certificate for such fiscal quarter for which Financial Performance Covenant is being measured are required to be delivered pursuant to Section 9.1.1(a) or 4.1 (bthe “Cure Period”), any Specified Holder Accuray shall have the right to make a Specified issue equity interests (other than Disqualified Equity Contribution to Holdings Interests) for cash (collectivelythe amount thereof, the “Cure Amount” and the exercise of such right, the “Cure Right”); provided, (i) no more than four (4) Cure Rights may be exercised after the Closing Date; (ii) no more than two Cure Rights may be exercised during any consecutive four fiscal quarters; (iii) no Cure Amount shall exceed the amount necessary to cause compliance with Section 6.2 for the period then ended; (iv) no Cure Amount shall exceed $5,000,000; and upon (v) the Cure Right must be exercised under this Agreement and the Affiliated Credit Agreement concurrently; provided further, that (x) Borrower Representative shall give Agent written notice of their intention to exercise the Cure Right prior to the eleventh (11th) Business Day subsequent to the date the Compliance Certificate for such fiscal quarter is required to be delivered (such Business Day, the “Cure Notice Deadline”) and (y) so long as Borrower Representative has given irrevocable written notice to Agent of its commitment to exercise the Cure Right prior to the Cure Notice Deadline, during the remainder of the Cure Period thereafter, neither Agent nor Lenders shall exercise remedies in connection with such failure to comply with Section 6.2 as of the end of such fiscal quarter; provided, further, that Borrowers shall not be permitted to request the second advance of the Term Loan during the Cure Period unless and until the Cure Amount has been received by Accuray.
(b) Upon the receipt by the Administrative Borrower from Holdings (which shall contribute such amount in cash as common equity Accuray of the Administrative Borrower) cash proceeds of any equity issuance referred to in Section 10.11(a), EBITDA for the fiscal quarter as to which such Cure Right is exercised (the “Cure AmountRight Fiscal Quarter”) pursuant shall be deemed to have been increased by the exercise by a Specified Holder of Cure Amount in determining compliance with Section 6.2 for such Cure Right (Fiscal Quarter and so long as such Cure Amount is actually received by the Administrative Borrower no later than 15 Business Days after the date on which financial statements with respect to the fiscal quarter for which the Financial Performance Covenant is being measured are required to be delivered pursuant to Section 9.1.1(a) or (b)) and notice from the Administrative Borrower to Agent as to the fiscal quarter with respect to which such Cure Amount is made, then the Financial Performance Covenant shall be recalculated giving effect to the following pro forma adjustments (but without regard to any pro forma or actual reduction in Indebtedness in such fiscal quarter made with all or any portion of such Cure Amount or any portion of the Cure Amount on the balance sheet of the Administrative Borrower and its Restricted Subsidiaries (including for purposes of determining the amount of Consolidated Total Debt), provided that, to the extent any portion of the Cure Amount is actually used to repay Indebtedness, such repayment and the effects thereof shall be regarded for all purposes of this Agreement in any quarter following the quarter in which subsequent period that includes such Cure Right was exercised):
(i) Consolidated Fiscal Quarter; provided that no increase in EBITDA on account of the exercise of any Cure Right shall be increased, solely for the purpose of measuring the Financial Performance Covenant and determining the existence of an Event of Default set forth in Section 10.1 resulting from a breach of the Financial Performance Covenant and not applicable for any other purpose under this Agreement, by an amount equal to the Cure Amount for such fiscal quarter and Agreement or any four fiscal quarter period that contains such fiscal quarter; andother Financing Documents.
(iic) if, If after giving effect to the foregoing recalculations, the Loan Parties recalculations set forth in Section 10.11(b) Borrowers shall then be in compliance with the requirements of the Financial Performance CovenantSection 6.2, the Loan Parties Borrowers shall be deemed to have satisfied the requirements of the Financial Performance Covenant such covenant as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, and any applicable breach or default Event of the Financial Performance Covenant Default with respect to any such covenant that had occurred shall be deemed cured for all purposes of this Agreement.
(a) Notwithstanding anything herein to the contrary, (i) in each four consecutive fiscal quarter period there shall be at least two fiscal quarters in which the Cure Right is not exercised, (ii) the Cure Amount shall be no greater than 100% of the amount required for purposes of complying with the Financial Performance Covenant, (iii) the Cure Right shall not be exercised more than five times during the term of this Agreement and (iv) no Specified Equity Contribution nor the proceeds thereof may be relied on for purposes of calculating any financial ratios (other than as applicable to the Financial Performance Covenant for purposes of increasing Consolidated EBITDA as provided in clause (a) above) or any available basket or thresholds under this Agreement and shall not result in any adjustment to any amounts or calculations other than the amount of the Consolidated EBITDA to the extent provided in clause (a) above. Neither Agent nor any Lender shall exercise the right to accelerate the Loans or terminate the Revolver Commitments and none of Agent, any Lender or any other Secured Party shall exercise any right to foreclose on or take possession of the Collateral or exercise any other remedy pursuant to Section 10.1, the other Loan Documents or Applicable Law prior to the 15th Business Day after the date on which financial statements with respect to the fiscal quarter for which the Financial Performance Covenant is being measured are required to be delivered pursuant to Section 9.1.1(a) or (b) solely on the basis of an Event of Default having occurred and being continuing due to a breach of the Financial Performance Covenant (except to the extent that the Administrative Borrower has confirmed in writing that it does not intend to provide a Specified Equity Contribution). For the avoidance of doubt, from the time that the Loan Parties fail to comply with the Financial Performance Covenant until the time of the exercise of the Cure Right and the receipt by the Administrative Borrower of the Cure Amount, the Borrowers shall not be able to borrow any Loans hereunder or request the issuance, extension or renewal of any Letter of Credit hereunderFinancing Documents.
Appears in 1 contract