Equity Cure Right. (i) Notwithstanding anything to the contrary contained in Section 8.16(a), in the event that any Loan Party would otherwise be in default of the financial covenant set forth in Section 8.16(a) for any period, on or before the tenth (10th) Business Day subsequent to the due date for delivery of the financial statements for such period pursuant to Section 7.01 (such period, the “Cure Period”), the Borrower shall have the right to issue Qualified Capital Stock for cash in an aggregate amount not to exceed the amount necessary to cure the relevant failure to comply with Section 8.16(a) (such equity contribution, a “Specified Equity Contribution”), and upon the receipt by the Borrower of such Specified Equity Contribution within the Cure Period, the financial covenant set forth in Section 8.16(a) shall be recalculated giving effect to the following pro forma adjustments (collectively, the “Cure Right”): (A) Consolidated Revenues shall be increased for the most recently completed fiscal quarter (the “Applicable Quarter”) and any period of four consecutive fiscal quarters that includes the Applicable Quarter, solely for the purpose of measuring the financial covenant set forth in Section 8.16(a), and not for any other purpose under this Agreement, by an amount equal to the Specified Equity Contribution; and (B) If, after giving effect to the foregoing recalculation, the Loan Parties shall then be in compliance with the requirements of the financial covenant set forth in Section 8.16(a), the Loan Parties shall be deemed to have satisfied the requirements of the financial covenant set forth in Section 8.16(a) as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, and the applicable breach or default of the covenant set forth in Section 8.16(a) that had occurred shall be deemed cured for the purposes of this Agreement. (ii) Notwithstanding anything herein to the contrary, (A) the Loan Parties shall provide notice to the Administrative Agent of their intention to exercise the Cure Right no later than the date of delivery of the financial statements evidencing such noncompliance pursuant to Section 7.01, (B) in each four consecutive fiscal quarter period, there shall be a period of at least two (2) fiscal quarters in respect of which no Cure Right is exercised, (C) the Specified Equity Contribution shall be no greater than the amount required for purposes of complying with the financial covenant in Section 8.16(a), (D) the Specified Equity Contribution received pursuant to any exercise of the Cure Right shall be disregarded for purposes of determining any available basket under any covenant in this Agreement, and (E) the Cure Right may be exercised no more than four (4) times during the term of this Agreement.
Appears in 1 contract
Equity Cure Right. (i) Notwithstanding anything to the contrary contained in this Section 8.16(a)7.14 or in any Credit Document, in the event that Borrower fails to comply with any Loan Party would otherwise be in default of the financial covenant set forth in this Section 8.16(a) for 7.14 during any period, Fiscal Quarter ending on or before the tenth (10th) Business Day subsequent to the due date for delivery of the financial statements for such period pursuant to Section 7.01 (such periodDecember 31, the “Cure Period”)2014, the then Borrower shall have the right to issue Qualified Capital Stock for cash in an aggregate amount not to exceed the amount necessary to cure the relevant such failure to comply with Section 8.16(a) (such equity contribution, a “Specified Equity Contribution”), and upon the receipt by the Borrower of such Specified Equity Contribution within the Cure Period, the financial covenant set forth in Section 8.16(a) shall be recalculated giving effect to the following pro forma adjustments (collectively, the “Cure Right”):) by receiving cash proceeds from an issuance of common Equity Interests (other than Disqualified Stock) as a cash capital contribution made to Borrower after the end of such Fiscal Quarter and on or prior to the day that is ten (10) Business Days after delivery by Borrower to Lenders of a written notice of its intent to cure an Event of Default under Section 7.14 (which written notice shall be delivered on or prior to the date that is five (5) days after the day on which financial statements are required to be delivered with respect to such Fiscal Quarter) solely for purpose of such cure and not otherwise required for working capital or capital expenditures purposes, and upon receipt by Borrower of such cash proceeds (such cash amount being referred to as the “Cure Amount”) pursuant to the exercise of such Cure Right, the covenant set forth in this Section 7.14 shall be recalculated as follows:
(Ai) Consolidated Revenues EBITDA shall be increased for the most recently completed fiscal quarter (the “Applicable Quarter”) and any period of four consecutive fiscal quarters that includes the Applicable Quarterincreased, solely for the purpose of measuring determining compliance with the financial covenant set forth in Section 8.16(a), covenants contained herein at the end of the Fiscal Quarter for which the Cure Right was exercised and each applicable subsequent period and not for any other purpose under this Agreement, by an amount equal to the Specified Equity ContributionCure Amount; andprovided that neither Administrative Agent or Lenders shall exercise any rights or remedies (other than instituting Default Interest) with respect to any Event of Default that exists pursuant to Section 7.14 during the ten (10) Business Day period following notice by Borrower that it intends to exercise such Cure Right and affect such recalculation;
(Bii) Ifif, after giving effect to the foregoing recalculationrecalculations, the Loan Parties Borrower shall then be in compliance with the requirements of the financial a covenant set forth in of this Section 8.16(a)7.14, the Loan Parties Borrower shall be deemed to have satisfied the requirements of the financial such covenant set forth in Section 8.16(a) as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, and the applicable breach or default of the covenant set forth in Section 8.16(a) ; provided that had occurred shall be deemed cured for the purposes of this Agreement.
(ii) Notwithstanding anything herein to the contrary, (A) the Loan Parties shall provide notice to the Administrative Agent of their intention to exercise the Cure Right no later than the date of delivery of the financial statements evidencing such noncompliance pursuant to Section 7.01, (Bi) in each period of four consecutive fiscal quarter period, Fiscal Quarters there shall be a period of at least two (2) fiscal quarters Fiscal Quarters in respect of which no Cure Right is exercised, (Cii) the Specified Equity Contribution each Cure Amount shall be no greater than the amount required to cause Borrower to be in compliance with the applicable covenants of this Section 7.14 (such amount, the “Necessary Cure Amount”); provided that if the Cure Right is exercised prior to the date financial statements are required to be delivered for such Fiscal Quarter, then the Cure Amount shall be equal to the amount reasonably determined by Borrower in good faith that is required for purposes of complying with the financial covenant in applicable covenants of this Section 8.16(a7.14 for such Fiscal Quarter (such amount, the “Expected Cure Amount”), (Div) the Specified Equity Contribution received pursuant to any exercise of the all Cure Right Amounts shall be disregarded for the purposes of any financial ratio determination under the Credit Documents other than for determining any available basket under any covenant in compliance with the applicable covenants of this Agreement, Section 7.14 and (Ev) no Lender or LC Issuer shall be required to make any extension of credit hereunder during the ten (10) Business Days after delivery by Borrower to Lenders of a written notice of its intent to cure an Event of Default referred to above, unless Borrower shall have received the Cure Right may be exercised no more than four (4) times during the term of this AgreementAmount.
Appears in 1 contract
Equity Cure Right. (i) Notwithstanding anything to the contrary contained in Section 8.16(a), in In the event that any Loan Party would otherwise be in default of Borrowers fail to comply with the financial covenant covenants set forth in Section 8.16(a7.12, subject to the terms and conditions hereof, Holdings shall have the right (the “Cure Right”) after the first day of the applicable Fiscal Quarter for any period, on or before which such covenants are then being tested until the tenth (10th) expiration of the 10th Business Day subsequent to the due date for delivery of the applicable financial statements for such period pursuant are required to Section 7.01 be delivered to Collateral Agent with respect thereto (such period, the “Cure Period”), the Borrower shall have the right to issue Qualified Capital Stock Permitted Cure Securities for cash or otherwise receive, as additional paid in capital, cash common equity contributions, in either case in an aggregate amount equal to, but not to exceed greater than, the amount necessary to cure all relevant financial covenants (including, without limitation all relevant financial covenants contained in the relevant failure to comply with Section 8.16(aSenior Loan Agreement) (such equity contributionhereinafter, a the “Specified Equity ContributionCure Amount”), and upon the receipt by the any Borrower of such Specified Equity Contribution within the Cure Periodcash proceeds thereof, the financial covenant set forth in Section 8.16(a) covenants shall then be recalculated giving effect to the following pro forma adjustments adjustments: (collectively, the “Cure Right”):
(Aa) Adjusted Consolidated Revenues EBITDA shall be increased for the most recently completed fiscal quarter applicable Fiscal Quarter and for the subsequent three (the “Applicable Quarter”3) and any period of four consecutive fiscal quarters that includes the Applicable QuarterFiscal Quarters, solely for the purpose of measuring compliance with the financial covenant set forth in Section 8.16(a), covenants and not for any other purpose under this AgreementAgreement or any other Loan Document (including, without limitation, calculating basket levels), by an amount equal to the Specified Equity ContributionCure Amount contributed by Holdings to the Borrowers; and
and (Bb) Ifif, after giving effect to the foregoing recalculationrecalculations, the Loan Parties Borrowers shall then be in compliance with the requirements of the all financial covenant set forth in Section 8.16(a)covenants, the Loan Parties Borrowers shall be deemed to have satisfied the requirements of the been in compliance with such financial covenant set forth in Section 8.16(a) 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 breach breach, Default or default Event of the covenant set forth in Section 8.16(a) Default of such financial covenants that had occurred shall be deemed cured not to have occurred for the all purposes of this Agreement.
. In the event that (i) no Event of Default exists other than that arising due to failure of the Loan Parties to comply with the financial covenants set forth in Section 7.12 or the failure to deliver a notice of Default in respect thereof), and (ii) until the expiration of the Cure Period, then neither Collateral Agent nor any Lender shall exercise any remedies set forth in Section 8.02 hereof or under any Loan Document until after the Borrowers’ ability to cure has lapsed and the Borrowers have not exercised such Cure Right. Notwithstanding anything herein to the contrary, (A) the Loan Parties in no event shall provide notice to the Administrative Agent of their intention Holdings or Borrowers be permitted to exercise the Cure Right no later than the date of delivery of the financial statements evidencing such noncompliance pursuant to Section 7.01, hereunder (Bx) in each four consecutive fiscal quarter period, there shall be a period of at least two (2) fiscal quarters in respect of which no Cure Right is exercised, (C) the Specified Equity Contribution shall be no greater than the amount required for purposes of complying with the financial covenant in Section 8.16(a), (D) the Specified Equity Contribution received pursuant to any exercise of the Cure Right shall be disregarded for purposes of determining any available basket under any covenant in this Agreement, and (E) the Cure Right may be exercised no more than four (4) 5 times in the aggregate during the term of this AgreementAgreement or (y) more than 2 times in any 4 consecutive Fiscal Quarters.
Appears in 1 contract
Equity Cure Right. (i) Notwithstanding anything to the contrary contained in Section 8.16(a)7.11 or in Section 8.1, in the event that any Loan Party would otherwise be in default Borrower fails to comply with the requirements of the financial covenant covenants set forth in Section 8.16(a7.11 (the “Financial Condition Covenants”) for any period, on or before until the tenth (10th) Business Day subsequent to the due date for delivery expiration of the financial statements for day that is ten Business Days following the date the Compliance Certificate calculating such period covenants is required to be delivered pursuant to Section 7.01 (such period, the “Cure Period”6.2(b), the Borrower shall have the right to issue Qualified Capital Stock Equity Interests for cash in an aggregate amount not to exceed the amount necessary to cure the relevant failure to comply with Section 8.16(a) (such equity contribution, a “Specified Equity Contribution”), and upon the receipt by the Borrower of such Specified Equity Contribution within the Cure Period, the financial covenant set forth in Section 8.16(a) shall be recalculated giving effect or otherwise receive cash contributions to the following pro forma adjustments capital of Borrower (collectively, the “Cure Right”):
(A) Consolidated Revenues shall in such amounts as are necessary to be increased for the most recently completed fiscal quarter in compliance with such Financial Condition Covenants (the “Applicable QuarterCure Amount”). In no event shall the Cure Amount be greater than the amount required for purposes of complying with the Financial Condition Covenants as set forth herein. The Cure Amount shall be included, as applicable, in the calculation of Consolidated EBITDA or as “cash” in subclause (a) and any period of four consecutive fiscal quarters that includes the Applicable Quarterdefinition of “Consolidated Liquidity Ratio”, solely in each case for the purpose of measuring determining compliance with the financial covenant set forth Financial Condition Covenants at the end of the relevant fiscal quarter and any subsequent period that includes such fiscal quarter. The Cure Right may be exercised not more than twice in Section 8.16(a)any fiscal year, and not for any other purpose under this Agreement, by an amount equal more than four times prior to the Specified Equity Contribution; and
(B) If, after giving effect to Maturity Date. Upon the foregoing recalculationBorrower’s receipt of the Cure Amount, the Loan Parties shall then be in compliance with the requirements of the financial covenant set forth in Section 8.16(a), the Loan Parties Borrower shall be deemed to have satisfied the requirements of the financial covenant set forth in Section 8.16(a) such Financial Condition 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 breach or default of the covenant set forth in Section 8.16(a) Financial Condition Covenants that had occurred shall be deemed cured for the purposes of this AgreementAgreement and any other Loan Document.
(ii) Notwithstanding anything herein to the contrary, (A) the Loan Parties shall provide notice to the Administrative Agent of their intention to exercise the Cure Right no later than the date of delivery of the financial statements evidencing such noncompliance pursuant to Section 7.01, (B) in each four consecutive fiscal quarter period, there shall be a period of at least two (2) fiscal quarters in respect of which no Cure Right is exercised, (C) the Specified Equity Contribution shall be no greater than the amount required for purposes of complying with the financial covenant in Section 8.16(a), (D) the Specified Equity Contribution received pursuant to any exercise of the Cure Right shall be disregarded for purposes of determining any available basket under any covenant in this Agreement, and (E) the Cure Right may be exercised no more than four (4) times during the term of this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Calix, Inc)
Equity Cure Right. (i) Notwithstanding anything to the contrary contained in Section 8.16(a), in In the event that any Loan Party an Event of Default would otherwise be arise in default respect of the any financial covenant set forth in Section 8.16(a8.02(s), Section 8.02(t) for any periodor Section 8.02(u), on or before until the tenth expiration of the fifth (10th5th) Business Day subsequent after the date on which financial statements are required to be delivered with respect to the due date for delivery of the financial statements for such period pursuant to Section 7.01 (such periodapplicable calendar month hereunder, the “Cure Period”), the Borrower Parent shall have the right to issue Qualified Capital Stock Equity Interests for cash in an aggregate amount not or otherwise receive cash contributions to exceed the capital of the Parent, contribute the proceeds thereof to SmileDirect and apply the amount necessary of the proceeds thereof to cure determine compliance with the relevant failure financial covenants referenced above with respect to comply with Section 8.16(athe applicable calendar month (and thereafter as necessary) (such equity contribution, a “Specified Equity Contribution”), and upon the receipt by the Borrower of such Specified Equity Contribution within the Cure Period, the financial covenant set forth in Section 8.16(a) shall be recalculated giving effect to the following pro forma adjustments (collectively, the “Cure Right”):
); provided that (Aa) Consolidated Revenues such proceeds are actually received by SmileDirect no later than five (5) Business Days after the date on which financial statements are required to be delivered with respect to such calendar month hereunder, (b) no amounts in excess of the amounts necessary to cure the Event(s) of Default that would otherwise have arisen shall be increased permitted to be taken into account for purposes of determining compliance with the most recently completed fiscal quarter (the “Applicable Quarter”) and any period of four consecutive fiscal quarters that includes the Applicable Quarter, solely for the purpose of measuring the applicable financial covenant set forth in Section 8.16(acovenant(s), and but nothing in this Section 8.04 limits the right of any Credit Party to receive a contribution of additional cash that does not for conflict with any other purpose under provision of the Transaction Documents; (c) the Cure Right shall not be exercised more than four (4) times during the term of this Agreement, by an ; and (d) the aggregate amount equal of all Cure Right proceeds during the term of this Agreement shall not exceed $50,000,000. Notwithstanding any provision of this Agreement to the Specified Equity Contribution; and
(B) Ifcontrary, if, after giving effect to the foregoing recalculationforegoing, the Loan Parties there shall then be in no non-compliance with the requirements of the financial covenant set forth in Section 8.16(a8.02(s), Section 8.02(t) or Section 8.02(u) for the Loan Parties applicable calendar month, no Event of Default shall be deemed to have satisfied the requirements of the financial covenant set forth in Section 8.16(a) arisen under such Sections as of the relevant date of determination determination, with the same effect as though there had been no failure to comply therewith at on such date, and the applicable breach or default Event of the covenant set forth in Section 8.16(a) Default that had otherwise would have occurred shall be deemed cured for the purposes of this Agreement.
(ii) Notwithstanding anything herein to the contrary, (A) the Loan Parties shall provide notice to the Administrative Agent of their intention to exercise the Cure Right no later than the date of delivery of the financial statements evidencing such noncompliance pursuant to Section 7.01, (B) in each four consecutive fiscal quarter period, there shall be a period of at least two (2) fiscal quarters in respect of which no Cure Right is exercised, (C) the Specified Equity Contribution shall be no greater than the amount required for purposes of complying with the financial covenant in Section 8.16(a), (D) the Specified Equity Contribution received pursuant to any exercise of the Cure Right shall be disregarded for purposes of determining any available basket under any covenant in this Agreement, and (E) the Cure Right may be exercised no more than four (4) times during the term of this Agreement.
Appears in 1 contract
Samples: Loan and Security Agreement (SmileDirectClub, Inc.)
Equity Cure Right. (i) Notwithstanding anything to the contrary contained in Section 8.16(a), in In the event that any Loan Party would otherwise be in default of Borrowers fail to comply with the financial covenant covenants set forth in Section 8.16(a7.12, subject to the terms and conditions hereof, Holdings shall have the right (the “Cure Right”) after the first day of the applicable Fiscal Quarter for any period, on or before which such covenants are then being tested until the tenth (10th) expiration of the 10th Business Day subsequent to the due date for delivery of the applicable financial statements for such period pursuant are required to Section 7.01 be delivered to Administrative Agent with respect thereto (such period, the “Cure Period”), the Borrower shall have the right to issue Qualified Capital Stock Permitted Cure Securities for cash or otherwise receive, as additional paid in capital, cash common equity contributions, in either case in an aggregate amount equal to, but not to exceed greater than, the amount necessary to cure all relevant financial covenants (including, without limitation all relevant financial covenants contained in the relevant failure to comply with Section 8.16(aSubordinated Loan Agreement) (such equity contributionhereinafter, a the “Specified Equity ContributionCure Amount”), and upon the receipt by the any Borrower of such Specified Equity Contribution within the Cure Periodcash proceeds thereof, the financial covenant set forth in Section 8.16(a) covenants shall then be recalculated giving effect to the following pro forma adjustments adjustments: (collectively, the “Cure Right”):
(Aa) Adjusted Consolidated Revenues EBITDA shall be increased for the most recently completed fiscal quarter applicable Fiscal Quarter and for the subsequent three (the “Applicable Quarter”3) and any period of four consecutive fiscal quarters that includes the Applicable QuarterFiscal Quarters, solely for the purpose of measuring compliance with the financial covenant set forth in Section 8.16(a), covenants and not for any other purpose under this AgreementAgreement or any other Loan Document (including, without limitation, calculating basket levels), by an amount equal to the Specified Equity ContributionCure Amount contributed by Holdings to the Borrowers; and
and (Bb) Ifif, after giving effect to the foregoing recalculationrecalculations, the Loan Parties Borrowers shall then be in compliance with the requirements of the all financial covenant set forth in Section 8.16(a)covenants, the Loan Parties Borrowers shall be deemed to have satisfied the requirements of the been in compliance with such financial covenant set forth in Section 8.16(a) 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 breach breach, Default or default Event of the covenant set forth in Section 8.16(a) Default of such financial covenants that had occurred shall be deemed cured not to have occurred for the all purposes of this Agreement.
. In the event that (i) no Event of Default exists other than that arising due to failure of the Loan Parties to comply with the financial covenants set forth in Section 7.12 or the failure to deliver a notice of Default in respect thereof), and (ii) until the expiration of the Cure Period, then neither Administrative Agent nor any Lender shall exercise any remedies set forth in Section 8.02 hereof or under any Loan Document until after the Borrowers’ ability to cure has lapsed and the Borrowers have not exercised such Cure Right. Notwithstanding anything herein to the contrary, (A) the Loan Parties in no event shall provide notice to the Administrative Agent of their intention Holdings or Borrowers be permitted to exercise the Cure Right no later than the date of delivery of the financial statements evidencing such noncompliance pursuant to Section 7.01, hereunder (Bx) in each four consecutive fiscal quarter period, there shall be a period of at least two (2) fiscal quarters in respect of which no Cure Right is exercised, (C) the Specified Equity Contribution shall be no greater than the amount required for purposes of complying with the financial covenant in Section 8.16(a), (D) the Specified Equity Contribution received pursuant to any exercise of the Cure Right shall be disregarded for purposes of determining any available basket under any covenant in this Agreement, and (E) the Cure Right may be exercised no more than four (4) 5 times in the aggregate during the term of this AgreementAgreement or (y) more than 2 times in any 4 consecutive Fiscal Quarters.
Appears in 1 contract
Equity Cure Right. (i) Notwithstanding anything to the contrary contained in Section 8.16(a), in In the event that any Loan Party would otherwise be in default of Borrower fails to comply with the financial covenant covenants set forth in Section 8.16(a) for any period7.11, on or before the tenth (10th) Business Day subsequent subject to the due date for delivery of the financial statements for such period pursuant to Section 7.01 (such period, the “Cure Period”)terms and conditions hereof, the Borrower shall have the right (the “Cure Right”) from the last day of the applicable Fiscal Quarter until the expiration of the 10th Business Day subsequent to the date the applicable financial statements are required to be delivered to Administrative Agent with respect thereto, to issue Qualified Capital Stock Permitted Cure Securities for cash or otherwise receive, as additional paid in capital, cash contributions from its equity holders, in either case in an aggregate amount equal to, but not to exceed greater than, the amount necessary to cure the relevant failure to comply with Section 8.16(a) financial covenant (such equity contributionhereinafter, a the “Specified Equity ContributionCure Amount”), and upon the receipt by the Borrower of such Specified Equity Contribution within the Cure Periodcash proceeds thereof, the financial covenant set forth in Section 8.16(a) covenants shall then be recalculated giving effect to the following pro forma adjustments adjustments: (collectively, the “Cure Right”):
(Aa) Consolidated Revenues EBITDA shall be increased for the most recently completed fiscal quarter applicable Fiscal Quarter and for the subsequent three (3) consecutive Fiscal Quarters (the “Applicable QuarterCure Period”) and any period of four consecutive fiscal quarters that includes the Applicable Quarter), solely for the purpose of measuring compliance with the financial covenant set forth in Section 8.16(a), covenants and not for any other purpose under this Agreement, by an amount equal to the Specified Equity ContributionCure Amount paid over to Administrative Agent for application to the Loans in accordance with Section 2.06(b) hereof; and
(Bb) Ifthe mandatory prepayment of the Loans made with respect to such Cure Amount pursuant to Section 2.06(b)(iv) shall not serve as a reduction to (i) Excess Cash Flow or (ii) Indebtedness for purposes of calculating the Consolidated First Lien Net Leverage Ratio or the Consolidated Total Net Leverage Ratio for the applicable Fiscal Quarter or any of the next three (3) Fiscal Quarters; and (c) if, after giving effect to the foregoing recalculationrecalculations, the Loan Parties Borrower shall then be in compliance with the requirements of the all financial covenant set forth in Section 8.16(a)covenants, the Loan Parties Borrower shall be deemed to have satisfied the requirements of the been in compliance with such financial covenant set forth in Section 8.16(a) 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 breach breach, Default or default Event of the covenant set forth in Section 8.16(a) Default of such financial covenants that had occurred shall be deemed cured not to have occurred for this purpose of the purposes Agreement. In the event that (i) no Default or Event of this Agreement.
Default exists other than that arising due to failure of the Loan Parties to comply with the financial covenants set forth in Section 7.11, and (ii) Holdings shall have delivered to Administrative Agent an irrevocable written notice of its intention to cause the Borrower to exercise the Cure Right (which notice shall be delivered no earlier than 15 days prior to, and no later than the 5th day subsequent to, the date the applicable financial statements are required to be delivered hereunder), which exercise if fully consummated would be sufficient in accordance with the terms hereof to cause Borrower to be in compliance with the financial covenants as of the relevant date of determination, then from and following receipt by Administrative Agent of any such notice and until the date that is the earlier of (x) the 10th Business Day subsequent to the date the applicable financial statements are required to be delivered and (y) the date, if any, on which any Loan Party notifies Administrative Agent in writing that such Cure Right shall not be exercised, then neither Administrative Agent nor any Lender shall exercise any remedies set forth in Section 8.02 hereof during such period; provided that so long as any Default or Event of Default shall be in existence due to failure of the Loan Parties to comply with the financial covenants set forth in Section 7.11, none of Administrative Agent, L/C Issuer nor any Lender shall be required to advance any Loans and/or issue any Letters of Credit. Notwithstanding anything herein to the contrary, (A) in no event shall the Loan Parties shall provide notice to the Administrative Agent of their intention Borrower be permitted to exercise the Cure Right no later than the date of delivery of the financial statements evidencing such noncompliance pursuant to Section 7.01, hereunder (Bx) in each four consecutive fiscal quarter period, there shall be a period of at least two (2) fiscal quarters in respect of which no Cure Right is exercised, (C) the Specified Equity Contribution shall be no greater than the amount required for purposes of complying with the financial covenant in Section 8.16(a), (D) the Specified Equity Contribution received pursuant to any exercise of the Cure Right shall be disregarded for purposes of determining any available basket under any covenant in this Agreement, and (E) the Cure Right may be exercised no more than four (4) 5 times in the aggregate during the term of this AgreementAgreement or (y) more than 2 times in any 4 consecutive Fiscal Quarters. Notwithstanding the foregoing or anything else herein to the contrary, if following the receipt of the Cure Amount, a Trigger Event or an Additional Trigger Event (each as defined in the Holdings Preferred Equity Documents (as in effect on the Closing Date or as amended to the extent expressly consented to by the Administrative Agent)) occurs during the Cure Period (and such Trigger Event or Additional Trigger Event is not waived by the holders of the Holdings Preferred Equity), then the Cure Amount shall cease to increase Consolidated EBITDA for the Cure Period.
Appears in 1 contract
Samples: Credit Agreement (CardConnect Corp.)
Equity Cure Right.
(i) Notwithstanding anything to the contrary contained in Section 8.16(a), in the event that any Loan Party would otherwise be in default of the financial covenant set forth in Section 8.16(a) for any period, on or before the tenth (10th) Business Day subsequent to the due date for delivery of the financial statements for such period pursuant to Section 7.01 (such period, the “Cure Period”), the Borrower shall have the right to issue Qualified Capital Stock for cash in an aggregate amount not to exceed the amount necessary to cure the relevant failure to comply with Section 8.16(a) (such equity contribution, a “Specified Equity Contribution”), and upon the receipt by the Borrower of such Specified Equity Contribution within the Cure Period, the financial covenant set forth in Section 8.16(a) shall be recalculated giving effect to the following pro forma adjustments (collectively, the “Cure Right”):):
(A) Consolidated Revenues shall be increased for the most recently completed applicable fiscal quarter (the “Applicable Quarter”) and any period of four (4) consecutive fiscal quarters that includes the Applicable Quarter, solely for the purpose of measuring the financial covenant set forth in Section 8.16(a), and not for any other purpose under this AgreementAgreement or any other Loan Document, by an amount equal to the Specified Equity Contribution; and
(B) If, after giving effect to the foregoing recalculation, the Loan Parties shall then be in compliance with the requirements of the financial covenant set forth in Section 8.16(a), the Loan Parties shall be deemed to have satisfied the requirements of the financial covenant set forth in Section 8.16(a) as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, and the applicable breach or default of the covenant set forth in Section 8.16(a) that had occurred shall be deemed cured for the purposes of this AgreementAgreement and the other Loan Documents.
(ii) Notwithstanding anything herein to the contrary, (A) the Loan Parties shall provide notice to the Administrative Agent of their intention to exercise the Cure Right no later than the date of delivery of the financial statements evidencing such noncompliance pursuant to Section 7.01, (B) in each four (4) consecutive fiscal quarter period, there shall be a period of at least two (2) fiscal quarters in respect of which no Cure Right is exercised, (C) the Specified Equity Contribution shall be no greater than the amount required for purposes of complying with the financial covenant in Section 8.16(a), (D) the Specified Equity Contribution received pursuant to any exercise of the Cure Right shall be disregarded for purposes of determining any available basket under any covenant in this Agreement, and (E) the Cure Right may be exercised no more than four (4) times during the term of this Agreement..
Appears in 1 contract