Equity Right to Cure. (a) Notwithstanding anything to the contrary contained in Section 7.1, in the event of any Event of Default under the covenant set forth in Section 6.16 or Section 6.17 and until the expiration of the tenth (10th) Business Day after the date on which financial statements are required to be delivered pursuant to Section 5.2(a) or (b) with respect to the applicable fiscal quarter hereunder, the Borrower may sell or issue common Equity Interests of the Borrower to any of the Equity Interest holders (to the extent such transaction would not result in a Change in Control) or obtain cash capital contributions on account of common Equity Interests of the Borrower and apply the Equity Issuance Proceeds thereof to increase EBITDA with respect to such applicable quarter (and include it as EBITDA in such quarter for any four fiscal quarter period included in such calculation); provided that (i) such Equity Issuance Proceeds are actually received by the Borrower no later than ten (10) Business Days after the date on which financial statements are required to be delivered pursuant to Section 5.2(a) or (b) with respect to such fiscal quarter hereunder, (ii) the amount of such Equity Issuance Proceeds included as EBITDA for any such fiscal quarter shall not exceed the amount necessary to cause the Leverage Ratio or the Fixed Charge Coverage Ratio on a pro forma basis after giving effect to the cure provided herein, for any applicable period to be less than the then required levels under Section 6.16 or greater than the then required levels under Section 6.17, as applicable, (iii) such Equity Issuance Proceeds must be applied first, as a prepayment of the outstanding principal amount of the Tranche B Term Advances and applied in the inverse order of maturity, second as a prepayment of the outstanding principal amount of any Swingline Advances, third as a prepayment of the outstanding Revolving Tranche A Advances on a pro rata basis, and fourth as cash collateral deposited into the Cash Collateral Account to Cash Collateralize the Letter of Credit Exposure, and (iv) the Commitments shall be reduced permanently by the amounts applied to the Revolving Tranche A Advances under clause (iii). Subject to the terms set forth above and the terms in clause (b) and (c) below, upon (A) application of the Equity Issuance Proceeds as provided above within the ten (10) Business Day period described above in such amounts sufficient to cure the Events of Default under the covenant set forth in Section 6.16 or Section 6.17, and (B) delivery of an updated Compliance Certificate executed by a Responsible Officer of the Borrower to the Administrative Agent reflecting compliance with Section 6.16 or Section 6.17, such Events of Default shall be deemed cured and no longer in existence. (b) The parties hereby acknowledge and agree that this Section 7.7 may not be relied on for purposes of calculating any financial ratios or other conditions or compliances other than the Leverage Ratio covenant set forth in Section 6.16 and the Fixed Charge Coverage Ratio covenant set forth in Section 6.17 and shall not result in any adjustment to any amounts (including, for the avoidance of doubt, any reduction in Debt for the subject fiscal quarter as a result of the application of the Equity Issuance Proceeds required in clause (a) above or any determination of the Leverage Ratio for purposes of determining Applicable Margin) other than the amount of EBITDA referred to in Section 7.7(a) above for purposes of determining the Borrower’s compliance with Section 6.16 and Section 6.17. (c) In each period of four fiscal quarters, there shall be at least two (2) fiscal quarters in which no cure set forth in this Section 7.7 is made. Furthermore, the Borrower may not utilize more than three (3) cures provided in this Section 7.7.
Appears in 2 contracts
Samples: Credit Agreement (Nine Energy Service, Inc.), Credit Agreement (Nine Energy Service, Inc.)
Equity Right to Cure. (a) Notwithstanding anything to the contrary contained in Section 7.1, in the event of any Event of Default under the covenant covenants set forth in Section 6.16 or Section 6.17 and until the expiration of the tenth (10th) Business Day after the date on which financial statements are required to be delivered pursuant to Section 5.2(a) or (b) with respect to the applicable fiscal quarter hereunder, the Borrower may sell or issue common Equity Interests of the Borrower to any of the Equity Interest holders (to the extent such transaction would not result in a Change in Control) or obtain cash capital contributions on account of common Equity Interests of the Borrower and apply the Equity Issuance Proceeds thereof to increase EBITDA with respect to such applicable quarter (and include it as EBITDA in such quarter for any four fiscal quarter period included in such calculation); provided that (i) such Equity Issuance Proceeds are actually received by the Borrower no later than ten (10) Business Days after the date on which financial statements are required to be delivered pursuant to Section 5.2(a) or (b) with respect to such fiscal quarter hereunder, (ii) the amount of such Equity Issuance Proceeds included as EBITDA for any such fiscal quarter shall not exceed the amount necessary to cause the Leverage Ratio or the Fixed Charge Coverage Ratio on a pro forma basis after giving effect to the cure provided herein, for any applicable period to be less than the then required levels under Section 6.16 or greater than the then required levels under Section 6.17, as applicable, (iii) such Equity Issuance Proceeds must be applied first, as a prepayment of the outstanding principal amount of the Tranche B Term Advances and applied in the inverse order of maturity, second as a prepayment of the outstanding principal amount of the Tranche C Term Advances and applied in the inverse order of maturity, third as a prepayment of the outstanding principal amount of any Swingline Advances, third fourth as a prepayment of the outstanding Revolving Tranche A Advances on a pro rata basis, and fourth fifth, if a Borrowing Base Deficiency exists, as cash collateral deposited into the Cash Collateral Account to Cash Collateralize the Letter of Credit Exposure, and (iv) the Commitments shall be reduced permanently by the amounts applied to the Revolving Tranche A Advances under clause (iii). Subject to the terms set forth above and the terms in clause (b) and (c) below, upon (A) application of the Equity Issuance Proceeds as provided above within the ten (10) Business Day period described above in such amounts sufficient to cure the Events of Default under the covenant set forth in Section 6.16 or Section 6.17, and (B) delivery of an updated Compliance Certificate executed by a Responsible Officer of the Borrower to the Administrative Agent reflecting compliance with Section 6.16 or Section 6.17, such Events of Default shall be deemed cured and no longer in existence.
(b) The parties hereby acknowledge and agree that this Section 7.7 may not be relied on for purposes of calculating any financial ratios or other conditions or compliances other than the Leverage Ratio covenant set forth in Section 6.16 and the Fixed Charge Coverage Ratio covenant set forth in Section 6.17 and shall not result in any adjustment to any amounts (including, for the avoidance of doubt, any reduction in Debt for the subject fiscal quarter as a result of the application of the Equity Issuance Proceeds required in clause (a) above or any determination of the Leverage Ratio for purposes of determining Applicable Margin) other than the amount of EBITDA referred to in Section 7.7(a) above for purposes of determining the Borrower’s compliance with Section 6.16 and Section 6.17.
(c) In each period of four fiscal quarters, there shall be at least two (2) fiscal quarters in which no cure set forth in this Section 7.7 is made. Furthermore, the Borrower may not utilize more than three (3) cures provided in this Section 7.7.
Appears in 2 contracts
Samples: Credit Agreement (Nine Energy Service, Inc.), Credit Agreement (Nine Energy Service, Inc.)
Equity Right to Cure. (a) Notwithstanding anything to the contrary contained in Section 7.1, in the event of any Event of Default under the covenant set forth in Section 6.16 6.15 or Section 6.17 6.16 and until the expiration of the tenth (10th) Business Day after the date on which financial statements are required to be delivered pursuant to Section 5.2(a) or (b) with respect to the applicable fiscal quarter hereunder, the US Borrower may sell or issue common Equity Interests of the US Borrower to any of the Equity Interest holders (to the extent such transaction would not result in a Change in Control) or obtain cash capital contributions on account of common Equity Interests of the Borrower and apply the Equity Issuance Proceeds thereof to increase consolidated EBITDA of the US Borrower with respect to such applicable quarter (and include it as consolidated EBITDA in such quarter for any four fiscal quarter period included in including such calculationquarter); provided that (i) such Equity Issuance Proceeds are actually received by the US Borrower no later than ten (10) Business Days after the date on which financial statements are required to be delivered pursuant to Section 5.2(a) or (b) with respect to such fiscal quarter hereunder, hereunder and (ii) the amount of such Equity Issuance Proceeds included as consolidated EBITDA for any such fiscal quarter shall not exceed the amount necessary to cause the maximum Leverage Ratio or the Fixed Charge Interest Coverage Ratio on a pro forma basis after giving effect to the cure provided herein, for any applicable period to be 1.00x greater than, or less than than, as applicable, the then required levels under Section 6.16 or greater than the then required levels under 6.15 and Section 6.17, as applicable, (iii) such Equity Issuance Proceeds must be applied first, as a prepayment of the outstanding principal amount of the Tranche B Term Advances and applied in the inverse order of maturity, second as a prepayment of the outstanding principal amount of any Swingline Advances, third as a prepayment of the outstanding Revolving Tranche A Advances on a pro rata basis, and fourth as cash collateral deposited into the Cash Collateral Account to Cash Collateralize the Letter of Credit Exposure, and (iv) the Commitments shall be reduced permanently by the amounts applied to the Revolving Tranche A Advances under clause (iii)6.16. Subject to the terms set forth above and the terms in clause (b) and (c) below, upon (A) application of the Equity Issuance Proceeds as provided above within the ten (10) Business Day period described above in such amounts sufficient to cure the Events of Default under the covenant set forth in Section 6.16 6.15 or Section 6.176.16, and (B) delivery of an updated Compliance Certificate executed by a Responsible Officer of the US Borrower to the US Administrative Agent reflecting compliance with Section 6.16 or 6.15 and Section 6.176.16, such Events of Default shall be deemed cured and no longer in existence.
(b) The parties hereby acknowledge and agree that this Section 7.7 may not be relied on for purposes of calculating any financial ratios or other conditions or compliances other than the Leverage Ratio covenant set forth in Section 6.16 and the Fixed Charge or Interest Coverage Ratio covenant set forth in Section 6.17 6.15 or Section 6.16 and shall not result in any adjustment to any amounts (including, for the avoidance of doubt, any reduction in Debt for the subject fiscal quarter as a result of the application of that is prepaid or repaid with the Equity Issuance Proceeds required in clause (a) above or any determination of the Leverage Ratio for purposes of determining Applicable MarginProceeds) other than the amount of the consolidated EBITDA referred to in Section 7.7(a) above for purposes of determining the US Borrower’s compliance with Section 6.16 and 6.15 or Section 6.176.16.
(c) In each period of four fiscal quarters, there shall be at least two (2) fiscal quarters in which no cure set forth in this Section 7.7 is made. Furthermore, the US Borrower may not utilize more than three (3) five cures provided in this Section 7.7.
Appears in 2 contracts
Samples: Credit Agreement (Nine Energy Service, Inc.), Credit Agreement (Nine Energy Service, Inc.)
Equity Right to Cure. (a) Notwithstanding anything to the contrary contained in Section 7.1, in the event of any Event of Default under the covenant set forth in Section 6.16 or Section 6.17 and until the expiration of the tenth (10th) Business Day after the date on which financial statements are required to be delivered pursuant to Section 5.2(a) or (b) with respect to the applicable fiscal quarter hereunder, the Borrower may sell or issue common Equity Interests of the Borrower to any of the Equity Interest holders (to the extent such transaction would not result in a Change in Control) or obtain cash capital contributions on account of common Equity Interests of the Borrower and apply the Equity Issuance Proceeds thereof to increase EBITDA with respect to such applicable quarter (and include it as EBITDA in such quarter for any four fiscal quarter period included in such calculation); provided that (i) such Equity Issuance Proceeds are actually received by the Borrower no later than ten (10) Business Days after the date on which financial statements are required to be delivered pursuant to Section 5.2(a) or (b) with respect to such fiscal quarter hereunder, hereunder and (ii) the amount of such Equity Issuance Proceeds included as EBITDA for any such fiscal quarter shall not exceed the amount necessary to cause the Leverage Ratio or the Fixed Charge Coverage Ratio on a pro forma basis after giving effect to the cure provided herein, for any applicable period to be less than the then required levels under Section 6.16 or greater than the then required levels under Section 6.17, as applicable, (iii) such Equity Issuance Proceeds must be applied first, as a prepayment of the outstanding principal amount of the Tranche B Term Advances and applied in the inverse order of maturity, second as a prepayment of the outstanding principal amount of any Swingline Advances, third as a prepayment of the outstanding Revolving Tranche A Advances on a pro rata basis, and fourth as cash collateral deposited into the Cash Collateral Account to Cash Collateralize the Letter of Credit Exposure, and (iv) the Commitments shall be reduced permanently by the amounts applied to the Revolving Tranche A Advances under clause (iii)minus 1.00. Subject to the terms set forth above and the terms in clause (b) and (c) below, upon (A) application of the Equity Issuance Proceeds as provided above within the ten (10) Business Day period described above in such amounts sufficient to cure the Events of Default under the covenant set forth in Section 6.16 or Section 6.176.16, and (B) delivery of an updated Compliance Certificate executed by a Responsible Officer of the Borrower to the Administrative Agent reflecting compliance with Section 6.16 or Section 6.176.16, such Events of Default shall be deemed cured and no longer in existence.
(b) The parties hereby acknowledge and agree that this Section 7.7 may not be relied on for purposes of calculating any financial ratios or other conditions or compliances other than the Leverage Ratio covenant set forth in Section 6.16 and the Fixed Charge Coverage Ratio covenant set forth in Section 6.17 and shall not result in any adjustment to any amounts (including, for the avoidance of doubt, any reduction in Debt for the subject fiscal quarter as a result of the application of that is prepaid or repaid with the Equity Issuance Proceeds required in clause (a) above or any determination of the Leverage Ratio for purposes of determining Applicable Margin) other than the amount of EBITDA referred to in Section 7.7(a) above for purposes of determining the Borrower’s compliance with Section 6.16 and Section 6.176.16.
(c) In each period of four fiscal quarters, there shall be at least two (2) fiscal quarters in which no cure set forth in this Section 7.7 is made. Furthermore, the Borrower may not utilize more than three (3) five cures provided in this Section 7.7.
Appears in 2 contracts
Samples: Credit Agreement (Nine Energy Service, Inc.), Credit Agreement (Nine Energy Service, Inc.)
Equity Right to Cure. (a) Notwithstanding anything to the contrary contained in Section 7.17.1(c)(i), in the event of any Event of Default under the covenant set forth in Section 6.16 or Section 6.17 6.16(a) (Fixed Charge Coverage Ratio), and until the expiration of the tenth fifteenth (10th15th) Business Day after the date on which financial statements are required to be delivered pursuant to Section 5.2(a) or (b) with respect to the applicable fiscal quarter hereunder, the Borrower Parent may sell or issue its common Equity Interests of (or other Equity Interests on terms reasonably acceptable to the Borrower Administrative Agent) to any of the Equity Interest holders Person (to the extent such transaction would not result in a Change in of Control) or obtain cash capital contributions on account of common Equity Interests (or other Equity Interests on terms reasonably acceptable to the Administrative Agent) of the Borrower Parent (each a “Covenant Cure Payment”), and apply the Equity Issuance Proceeds thereof or such cash capital contributions to increase EBITDA with respect to such applicable quarter (and include it as EBITDA in such quarter for any four fiscal quarter period included including such quarter), thereupon the Parent’s compliance with the covenant set forth in Sections 6.16(a) shall be recalculated giving pro forma effect to such calculation)increase in EBITDA; provided that (i) such Equity Issuance Proceeds or cash capital contributions are actually received by the Borrower Parent no later than ten fifteen (1015) Business Days after the date on which financial statements are required to be delivered pursuant to Section 5.2(a) or (b) with respect to such fiscal quarter hereunder, and (ii) the amount of such Equity Issuance Proceeds included as EBITDA for any such fiscal quarter shall not exceed the minimum amount necessary to cause the Leverage Ratio or the minimum Fixed Charge Coverage Ratio on a pro forma basis after giving effect to the cure provided herein, for any applicable period to be less than the then required levels in compliance under Section 6.16 6.16(a) for the applicable period. Upon the Administrative Agent’s receipt of a written notice from the Parent that the Parent intends to exercise a Cure Right (a “Notice of Intent to Cure”) (together with the financial statements required pursuant to Section 5.2(a) or greater than the then required levels under Section 6.17(b), as applicable, and the related Compliance Certificate required pursuant to Section 5.2(d) for the applicable fiscal period) until the earlier to occur of (iiii) the date on which the Administrative Agent is notified by the Parent that such Equity Issuance Proceeds must Cure Right will not be applied firstconsummated and (ii) the date that is sixteen (16) Business Days after the date on which the applicable financial statements are required to be delivered pursuant to Section 5.2(a) or (b), as a prepayment neither the Administrative Agent (nor any sub-Agent therefor) nor any Lender nor any other Secured Party shall (x) exercise any right to accelerate the Advances or terminate the Revolving Commitments, (y) impose interest at the Default Rate, or (z) exercise any right to foreclose on or take possession of the outstanding principal amount Collateral, or any other right or remedy under the Credit Documents, in each case, solely on the basis of the Tranche B Term Advances failure to comply with Section 6.16(a) (it being understood that, notwithstanding the foregoing, any such failure to comply with Section 6.16(a) shall still constitute a Default for all other purposes (other than for purposes of Section 9.7(b)(iii)(A)) under this Agreement and applied the other Credit Documents until such failure to comply is cured in the inverse order of maturity, second as a prepayment of the outstanding principal amount of any Swingline Advances, third as a prepayment of the outstanding Revolving Tranche A Advances on a pro rata basis, and fourth as cash collateral deposited into the Cash Collateral Account to Cash Collateralize the Letter of Credit Exposure, and (iv) the Commitments shall be reduced permanently by the amounts applied to the Revolving Tranche A Advances under clause (iiiaccordance with this Section 7.7). Subject to the terms set forth above and the terms in clause clauses (b) and (c) below, upon (A) application of the Equity Issuance Proceeds as provided above within the ten fifteen (1015) Business Day period described above in such amounts sufficient to cure the Events applicable breach of Default under the covenant set forth in Section 6.16 or Section 6.176.16(a), and (B) delivery of an updated Compliance Certificate executed by a Responsible Officer of the Borrower to the Administrative Agent reflecting compliance with Section 6.16 or Section 6.17the covenant, such any Events of Default relating to such covenant shall be deemed cured for all purposes of the Credit Agreement and the other Credit Documents and no longer in existence.
(b) The parties hereby acknowledge existence and agree that this Section 7.7 may not such covenant shall be relied on for purposes deemed satisfied as of calculating any financial ratios or other conditions or compliances other than the Leverage Ratio covenant set forth in Section 6.16 and end of the Fixed Charge Coverage Ratio covenant set forth in Section 6.17 and shall not result in any adjustment to any amounts (including, for the avoidance of doubt, any reduction in Debt for the subject relevant fiscal quarter with the same effect as a result of the application of the Equity Issuance Proceeds required in clause (a) above or any determination of the Leverage Ratio for purposes of determining Applicable Margin) other than the amount of EBITDA referred though there had been no failure to in Section 7.7(a) above for purposes of determining the Borrower’s compliance with Section 6.16 and Section 6.17.
(c) In each period of four fiscal quarters, there shall be comply therewith at least two (2) fiscal quarters in which no cure set forth in this Section 7.7 is madesuch date. Furthermore, the Borrower may not utilize more than three (3) cures provided in this Section 7.7.126
Appears in 1 contract
Equity Right to Cure. (a) Notwithstanding anything to the contrary contained in Section 7.17.1(c)(i), in the event of any Event of Default under the covenant set forth in Section 6.16 (Leverage Ratio) or the covenant set forth in Section 6.17 6.20 (Interest Coverage Ratio), and in each case until the expiration of the tenth fifteenth (10th15th) Business Day after the date on which financial statements are required to be delivered pursuant to Section 5.2(a) or (b) with respect to the applicable fiscal quarter hereunder, the Borrower Parent may sell or issue common Equity Interests (or other Equity Interests on terms reasonably acceptable to the Administrative Agent) of the Borrower Parent to any of the its Equity Interest holders (to the extent such transaction would not result in a Change in of Control) or obtain cash capital contributions on account of common Equity Interests (or other Equity Interests on terms reasonably acceptable to the Administrative Agent) of the Borrower Parent (each a “Covenant Cure Payment”), and apply the Equity Issuance Proceeds thereof or such cash capital contributions to (x) increase EBITDA with respect to such applicable quarter (and include it as EBITDA in such quarter for any four fiscal quarter period included including such quarter) and (y) prepay the Debt in accordance with Section 2.5(c)(ix), thereupon the Parent’s compliance with the covenants set forth in Sections 6.16 and 6.20 shall be recalculated giving pro forma effect to such calculation)increase in EBITDA; provided that (i) such Equity Issuance Proceeds or cash capital contributions are actually received by the Borrower Parent no later than ten fifteen (1015) Business Days after the date on which financial statements are required to be delivered pursuant to Section 5.2(a) or (b) with respect to such fiscal quarter hereunder, (ii) the amount of such Equity Issuance Proceeds included as EBITDA for any such fiscal quarter shall not exceed the greater of (1) the minimum amount necessary to cause the maximum Leverage Ratio or on a pro forma basis after giving effect to the Fixed Charge cure provided herein, to be in compliance under Section 6.16 for the applicable period and (2) the minimum amount necessary to cause the minimum Interest Coverage Ratio on a pro forma basis after giving effect to the cure provided herein, to be in compliance under Section 6.20 for any applicable period to be less than the then required levels under Section 6.16 or greater than the then required levels under Section 6.17period, as applicable, and (iii) such Equity Issuance Proceeds or contribution must be applied firstin accordance with Section 2.5(c)(ix). Upon the Administrative Agent’s receipt of a written notice from the Parent that the Parent intends to exercise a Cure Right (a “Notice of Intent to Cure”) (together with the financial statements required pursuant to Section 5.2(a) or (b), as a prepayment applicable, and the related Compliance Certificate required pursuant to Section 5.2(d) for the applicable fiscal period) until the earlier to occur of (i) the date on which the Administrative Agent is notified by the Parent that such Cure Right will not be consummated and (ii) the date that is sixteen (16) Business Days after the date on which the applicable financial statements are required to be delivered pursuant to Section 5.2(a) or (b), neither the Administrative Agent (nor any sub-Agent therefor) nor any Lender nor any other Secured Party shall (x) exercise any right to accelerate the Advances or terminate the Revolving Commitments, (y) impose interest at the Default Rate, or (z) exercise any right to foreclose on or take possession of the outstanding principal amount Collateral, or any other right or remedy under the Credit Documents, in each case, solely on the basis of the Tranche B Term Advances failure to comply with Sections 6.16 or 6.20 (as applicable) (it being understood that, notwithstanding the foregoing, any such failure to comply with Sections 6.16 or 6.20 (as applicable) shall still constitute a Default for all other purposes (other than for purposes of Section 9.7(b)(iii)(A)) under this Agreement and applied the other Loan Documents until such failure to comply is cured in the inverse order of maturity, second as a prepayment of the outstanding principal amount of any Swingline Advances, third as a prepayment of the outstanding Revolving Tranche A Advances on a pro rata basis, and fourth as cash collateral deposited into the Cash Collateral Account to Cash Collateralize the Letter of Credit Exposure, and (iv) the Commitments shall be reduced permanently by the amounts applied to the Revolving Tranche A Advances under clause (iiiaccordance with this Section 7.7). Subject to the terms set forth above and the terms in clause clauses (b) and (c) below, upon (A) application of the Equity Issuance Proceeds as provided above within the ten fifteen (1015) Business Day period described above in such amounts sufficient to cure the Events applicable breach of Default under the covenant set forth in Section 6.16 or Section 6.176.20, as applicable, and (B) delivery of an updated Compliance Certificate executed by a Responsible Officer of the Borrower to the Administrative Agent reflecting compliance with Section 6.16 or Section 6.17the applicable covenants, such any Events of Default relating to such covenants shall be deemed cured for all purposes of the Credit Agreement and the other Credit Documents and no longer in existenceexistence and such covenants shall be deemed satisfied as of the end of the relevant fiscal quarter with the same effect as though there had been no failure to comply therewith at such date.
(b) The parties hereby acknowledge and agree that (i) this Section 7.7 may not be relied on for purposes of calculating any financial ratios or other conditions or compliances compliance hereunder other than the Leverage Ratio covenant set forth in Section 6.16 and the Fixed Charge Interest Coverage Ratio covenant set forth in Section 6.17 and 6.20, (ii) the application of proceeds from the Covenant Cure Payment shall not result in any adjustment to any amounts (including, for pro forma reduction of the avoidance amount of doubt, any reduction in Debt for the subject fiscal quarter as a result of the application of the Equity Issuance Proceeds required in clause which such payment was made (aother than with respect to any future period which includes such fiscal quarter), and (iii) above or any determination of the Leverage Ratio for purposes of determining Applicable Margin) pricing or for any other than calculations from time to time subject to the amount Leverage Ratio or Interest Coverage Ratio shall be made without giving effect to the application of EBITDA referred the Covenant Cure Payment and corresponding adjustment to in Section 7.7(a) above for purposes of determining the Borrower’s compliance with Section 6.16 and Section 6.17EBITDA.
(c) In each period of four consecutive fiscal quarters, (i) there shall be at least two (2) fiscal quarters in which no cure Covenant Cure Payment is made, and (ii) a Covenant Cure Payment may not be made in any two (2) consecutive quarters; provided that the limitations set forth in this Section 7.7 clause (c) shall not apply until the fiscal quarter ending March 31, 2019.
(o) Exhibit B – Form of Compliance Certificate to the Credit Agreement is made. Furthermore, hereby deleted in its entirety and replaced with the Borrower may not utilize more than three Exhibit B – Form of Compliance Certificate attached hereto.
(3p) cures provided Schedule I to the Credit Agreement is hereby deleted in this Section 7.7its entirety and replaced with the Schedule I attached hereto.
(q) Schedule II to the Credit Agreement is hereby deleted in its entirety and replaced with Schedule II attached hereto.
Appears in 1 contract
Equity Right to Cure. (a) Notwithstanding anything to the contrary contained in Section 7.1, in the event of any Event of Default under the covenant set forth in Section 6.16 or Section 6.17 6.16, and in each case until the expiration of the tenth (10th) Business Day after the date on which financial statements are required to be delivered pursuant to Section 5.2(a) or (b) with respect to the applicable fiscal quarter hereunderhereunder (provided, that in the Borrower case of the start of a Covenant Testing Period that reverts to previously delivered financial statements, such cash proceeds may be received on or before the date that is 10 Business Days after the start of such Covenant Testing Period), Parent may sell or issue common Equity Interests of the Borrower Parent to any of the its Equity Interest holders (to the extent such transaction would not result in a Change in Control) or obtain cash capital contributions on account of common Equity Interests of the Borrower Parent, and apply the Equity Issuance Proceeds thereof or such cash capital contributions to increase consolidated EBITDA of Parent with respect to such applicable quarter (and include it as consolidated EBITDA in such quarter for any four fiscal quarter period included in including such calculationquarter); provided that (i) such Equity Issuance Proceeds or cash capital contributions are actually received by the Borrower Parent on account of its common Equity Interests, no later than ten (10) Business Days after the date on which financial statements are required to be delivered pursuant to Section 5.2(a) or (b) with respect to such fiscal quarter hereunderhereunder (provided, that in the case of the start of a Covenant Testing Period that reverts to previously delivered financial statements, such cash proceeds may be received on or before the date that is 10 Business Days after the start of such Covenant Testing Period), (ii) the amount of such Equity Issuance Proceeds included as consolidated EBITDA for any such fiscal quarter shall not exceed the minimum amount necessary to cause the Leverage Ratio or the minimum Fixed Charge Coverage Ratio on a pro forma basis after giving effect to the cure provided herein, for any applicable period to be less than the then required levels in compliance under Section 6.16 or greater than for the then required levels under Section 6.17applicable period, as applicable, and (iii) such Equity Issuance Proceeds or contribution must be applied first, as a prepayment of the outstanding principal amount of the Tranche B Term Advances and applied in the inverse order of maturity, second as a prepayment of the outstanding principal amount of any Swingline Advances, third as a prepayment of the outstanding Revolving Tranche A Advances on a pro rata basis, and fourth second as cash collateral deposited into a prepayment of the Cash Collateral Account to Cash Collateralize the Letter of Credit Exposure, and (iv) the Commitments shall be reduced permanently by the amounts applied to the Revolving Tranche A outstanding Advances under clause (iii)on a pro rata basis. Subject to the terms set forth above and the terms in clause clauses (b) and (c) below, upon (A) application of the Equity Issuance Proceeds as provided above within the ten (10) Business Day period described above in such amounts sufficient to cure the Events of Default under the covenant set forth in Section 6.16 or Section 6.176.16, and (By) delivery of an updated Compliance Certificate executed by a Responsible Officer of the Borrower to the Administrative Agent reflecting compliance with Section 6.16 or Section 6.17, the applicable covenant such Events of Default shall be deemed cured and no longer in existence.
(b) The parties hereby acknowledge and agree that this Section 7.7 may not be relied on for purposes of calculating any financial ratios or other conditions or compliances other than the Leverage Ratio covenant set forth in Section 6.16 and the Fixed Charge Coverage Ratio covenant set forth in Section 6.17 6.16, and shall not result in any adjustment to any amounts (including, for the avoidance of doubt, any reduction in Debt for the subject fiscal quarter as a result of the application of the Equity Issuance Proceeds required in clause (a) above or any determination of the Leverage Ratio for purposes of determining Applicable Margin) other than the amount of the consolidated EBITDA referred to in Section 7.7(a) above solely for purposes of determining the Borrower’s compliance with Section 6.16 6.16. Borrower shall not be permitted to request any Advance or Letter of Credit Extension, and such Events of Default shall be considered hereunder to have occurred and be continuing for all purposes (other than for purposes of Section 6.177.2 hereof) until such Equity Issuance Proceeds or cash capital contributions have been received by Borrower.
(c) In each period of four fiscal quartersFrom and after the Effective Date, there shall be at least two Borrower (2i) fiscal quarters in which no cure set forth in this Section 7.7 is made. Furthermore, the Borrower may not utilize more than three five (35) cures provided in this Section 7.7, (ii) may not utilize more than two (2) cures provided in this Section 7.7 in any four fiscal quarter period, and (iii) may not utilize cures in two (2) consecutive fiscal quarters.
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Equity Right to Cure. (a) Notwithstanding anything to the contrary contained in Section 7.1, in the event of any Event of Default under the covenant covenants set forth in Section 6.16 or Section 6.17 and until the expiration of the tenth (10th) Business Day after the date on which financial statements are required to be delivered pursuant to Section 5.2(a) or (bSection 5.2(b) with respect to the applicable fiscal quarter hereunder, the Borrower may sell or issue common Equity Interests of the Borrower to any of the Equity Interest holders (to the extent such transaction would not result in a Change in Control) or obtain cash capital contributions on account of common Equity Interests of the Borrower SCF and apply the Equity Issuance Proceeds thereof to increase consolidated EBITDA of the Borrower with respect to such applicable quarter (and include it as consolidated EBITDA in such quarter for any four fiscal quarter period included in including such calculationquarter; provided, that such amount shall be added to consolidated EBITDA after the application of any annualization (including annualization pursuant to the last paragraph of Section 6.16); provided that (i) such Equity Issuance Proceeds are actually received by the Borrower no later than ten (10) Business Days after the date on which financial statements are required to be delivered pursuant to Section 5.2(a) or (bSection 5.2(b) with respect to such fiscal quarter hereunder, hereunder and (ii) the amount of such Equity Issuance Proceeds included as consolidated EBITDA for any such fiscal quarter shall not exceed the amount necessary to cause (y) the maximum Leverage Ratio or the Fixed Charge Coverage Ratio on a pro forma basis after giving effect to the cure provided herein, for any applicable period to be (1) with respect to the Leverage Ratio, less than and (2) with respect to the Fixed Charge Coverage Ratio, greater than the then required levels under Section 6.16 or greater than the then required levels under Section 6.17, as applicable, (iii) such Equity Issuance Proceeds must be applied first, as a prepayment of the outstanding principal amount of the Tranche B Term Advances and applied in the inverse order of maturity, second as a prepayment of the outstanding principal amount of any Swingline Advances, third as a prepayment of the outstanding Revolving Tranche A Advances on a pro rata basis, and fourth as cash collateral deposited into the Cash Collateral Account to Cash Collateralize the Letter of Credit Exposure, and (iv) the Commitments shall be reduced permanently by the amounts applied to the Revolving Tranche A Advances under clause (iii). Subject to the terms set forth above and the terms in clause clauses (b) and (c) below, upon (A) application of the Equity Issuance Proceeds as provided above within the ten (10) Business Day period described above in such amounts sufficient to cure the Events of Default under the covenant covenants set forth in Section 6.16 or and Section 6.17, 6.17 and (B) delivery of an updated Compliance Certificate executed by a Responsible Officer of the Borrower to the Administrative Agent reflecting compliance with Section 6.16 or and Section 6.17, 6.17 such Events of Default shall be deemed cured and no longer in existence.
(b) The parties hereby acknowledge and agree that this Section 7.7 may not be relied on for purposes of calculating any financial ratios or other conditions or compliances other than the Leverage Ratio covenant covenants set forth in Section 6.16 and the Fixed Charge Coverage Ratio covenant set forth in Section 6.17 and shall not result in any adjustment to any amounts (including, for the avoidance of doubt, any reduction in Debt for the subject fiscal quarter as a result of the application of that is prepaid or repaid with the Equity Issuance Proceeds required in clause (a) above or any determination of the Leverage Ratio for purposes of determining Applicable MarginProceeds) other than the amount of the consolidated EBITDA referred to in Section 7.7(a) above for purposes of determining the Borrower’s compliance with Section 6.16 and or Section 6.17.
(c) In each period of four fiscal quartersquarters following the Funding Date, there shall be at least two (2) fiscal quarters in which no cure set forth in this Section 7.7 is made. Furthermore, the Borrower may not utilize more than three (3) cures provided in this Section 7.7.7.7 during the term hereof. ARTICLE VIIITHE ADMINISTRATIVE AGENT AND THE ISSUING LENDER
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Equity Right to Cure. (a) Notwithstanding anything to the contrary contained in Section 7.17.1(c)(i), in the event of any Event of Default under the covenant set forth in Section 6.16 6.16(a) (Leverage Ratio) or the covenant set forth in Section 6.17 6.16(b) (Interest Coverage Ratio), and in each case until the expiration of the tenth fifteenth (10th15th) Business Day after the date on which financial statements are required to be delivered pursuant to Section 5.2(a) or (b) with respect to the applicable fiscal quarter hereunder, the Borrower Parent may sell or issue its common Equity Interests (or other Equity Interests on terms reasonably acceptable to the Administrative Agent) of the Borrower Parent to any of the its Equity Interest holders (to the extent such transaction would not result in a Change in of Control) or obtain cash capital contributions on account of common Equity Interests (or other Equity Interests on terms reasonably acceptable to the Administrative Agent) of the Borrower Parent (each a “Covenant Cure Payment”), and apply the Equity Issuance Proceeds thereof or such cash capital contributions to increase EBITDA with respect to such applicable quarter (and include it as EBITDA in such quarter for any four fiscal quarter period included including such quarter), thereupon the Parent’s compliance with the covenants set forth in Sections 6.16 shall be recalculated giving pro forma effect to such calculation)increase in EBITDA; provided that (i) such Equity Issuance Proceeds or cash capital contributions are actually received by the Borrower Parent no later than ten fifteen (1015) Business Days after the date on which financial statements are required to be delivered pursuant to Section 5.2(a) or (b) with respect to such fiscal quarter hereunder, and (ii) the amount of such Equity Issuance Proceeds included as EBITDA for any such fiscal quarter shall not exceed the greater of (1) the minimum amount necessary to cause the maximum Leverage Ratio or on a pro forma basis after giving effect to the Fixed Charge cure provided herein, to be in compliance under Section 6.16(a) for the applicable period and (2) the minimum amount necessary to cause the minimum Interest Coverage Ratio on a pro forma basis after giving effect to the cure provided herein, to be in compliance under Section 6.16(b) for any applicable period period. Upon the Administrative Agent’s receipt of a written notice from the Parent that the Parent intends to be less than exercise a Cure Right (a “Notice of Intent to Cure”) (together with the then financial statements required levels under pursuant to Section 6.16 5.2(a) or greater than the then required levels under Section 6.17(b), as applicable, and the related Compliance Certificate required pursuant to Section 5.2(d) for the applicable fiscal period) until the earlier to occur of (iiii) the date on which the Administrative Agent is notified by the Parent that such Equity Issuance Proceeds must Cure Right will not be applied firstconsummated and (ii) the date that is sixteen (16) Business Days after the date on which the applicable financial statements are required to be delivered pursuant to Section 5.2(a) or (b), as a prepayment neither the Administrative Agent (nor any sub-Agent therefor) nor any Lender nor any other Secured Party shall (x) exercise any right to accelerate the Advances or terminate the Revolving Commitments, (y) impose interest at the Default Rate, or (z) exercise any right to foreclose on or take possession of the outstanding principal amount Collateral, or any other right or remedy under the Credit Documents, in each case, solely on the basis of the Tranche B Term Advances failure to comply with Sections 6.16(a) or (b) 127 (as applicable) (it being understood that, notwithstanding the foregoing, any such failure to comply with Sections 6.16(a) or (b) (as applicable) shall still constitute a Default for all other purposes (other than for purposes of Section 9.7(b)(iii)(A)) under this Agreement and applied the other Loan Documents until such failure to comply is cured in the inverse order of maturity, second as a prepayment of the outstanding principal amount of any Swingline Advances, third as a prepayment of the outstanding Revolving Tranche A Advances on a pro rata basis, and fourth as cash collateral deposited into the Cash Collateral Account to Cash Collateralize the Letter of Credit Exposure, and (iv) the Commitments shall be reduced permanently by the amounts applied to the Revolving Tranche A Advances under clause (iiiaccordance with this Section 7.7). Subject to the terms set forth above and the terms in clause clauses (b) and (c) below, upon (A) application of the Equity Issuance Proceeds as provided above within the ten fifteen (1015) Business Day period described above in such amounts sufficient to cure the Events applicable breach of Default under the covenant set forth in Section 6.16 or Section 6.176.20, as applicable, and (B) delivery of an updated Compliance Certificate executed by a Responsible Officer of the Borrower to the Administrative Agent reflecting compliance with Section 6.16 or Section 6.17the applicable covenants, such any Events of Default relating to such covenants shall be deemed cured for all purposes of the Credit Agreement and the other Credit Documents and no longer in existenceexistence and such covenants shall be deemed satisfied as of the end of the relevant fiscal quarter with the same effect as though there had been no failure to comply therewith at such date.
(b) The parties hereby acknowledge and agree that (i) this Section 7.7 may not be relied on for purposes of calculating any financial ratios or other conditions or compliances compliance hereunder other than the Leverage Ratio covenant set forth in Section 6.16 6.16(a) and the Fixed Charge Interest Coverage Ratio covenant set forth in Section 6.17 and 6.16(b), (ii) the application of proceeds from the Covenant Cure Payment shall not result in any adjustment to any amounts (including, for pro forma reduction of the avoidance amount of doubt, any reduction in Debt for the subject fiscal quarter as a result of the application of the Equity Issuance Proceeds required in clause which such payment was made (aother than with respect to any future period which includes such fiscal quarter), and (iii) above or any determination of the Leverage Ratio for purposes of determining Applicable Margin) pricing or for any other than calculations from time to time subject to the amount Leverage Ratio or Interest Coverage Ratio shall be made without giving effect to the application of EBITDA referred the Covenant Cure Payment and corresponding adjustment to in Section 7.7(a) above for purposes of determining the Borrower’s compliance with Section 6.16 and Section 6.17EBITDA.
(c) In each period of four consecutive fiscal quarters, (i) there shall be at least two (2) fiscal quarters in which no cure set forth in this Section 7.7 Covenant Cure Payment is made. Furthermore, the Borrower and (ii) a Covenant Cure Payment may not utilize more than three be made in any two (32) cures provided in this Section 7.7consecutive quarters.
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Equity Right to Cure. (a) Notwithstanding anything to the contrary contained in Section 7.17.1(c)(i), in the event of any Event of Default under the covenant set forth in Section 6.16 or Section 6.17 6.16(a) (Fixed Charge Coverage Ratio), and until the expiration of the tenth fifteenth (10th15th) Business Day after the date on which financial statements are required to be delivered pursuant to Section 5.2(a) or (b) with respect to the applicable fiscal quarter hereunder, the Borrower Parent may sell or issue its common Equity Interests of (or other Equity Interests on terms reasonably acceptable to the Borrower Administrative Agent) to any of the Equity Interest holders Person (to the extent such transaction would not result in a Change in of Control) or obtain cash capital contributions on account of common Equity Interests (or other Equity Interests on terms reasonably acceptable to the Administrative Agent) of the Borrower Parent (each a “Covenant Cure Payment”), and apply the Equity Issuance Proceeds thereof or such cash capital contributions to increase EBITDA with respect to such applicable quarter (and include it as EBITDA in such quarter for any four fiscal quarter period included including such quarter), thereupon the Parent’s compliance with the covenant set forth in Sections 6.16(a) shall be recalculated giving pro forma effect to such calculation)increase in EBITDA; provided that (i) such Equity Issuance Proceeds or cash capital contributions are actually received by the Borrower Parent no later than ten fifteen (1015) Business Days after the date on which financial statements are required to be delivered pursuant to Section 5.2(a) or (b) with respect to such fiscal quarter hereunder, and (ii) the amount of such Equity Issuance Proceeds included as EBITDA for any such fiscal quarter shall not exceed the minimum amount necessary to cause the Leverage Ratio or the minimum Fixed Charge Coverage Ratio on a pro forma basis after giving effect to the cure provided herein, for any applicable period to be less than the then required levels in compliance under Section 6.16 6.16(a) for the applicable period. Upon the Administrative Agent’s receipt of a written notice from the Parent that the Parent intends to exercise a Cure Right (a “Notice of Intent to Cure”) (together with the financial statements required pursuant to Section 5.2(a) or greater than the then required levels under Section 6.17(b), as applicable, and the related Compliance Certificate required pursuant to Section 5.2(d) for the applicable fiscal period) until the earlier to occur of (iii) such Equity Issuance Proceeds must be applied first, as a prepayment of the outstanding principal amount of the Tranche B Term Advances and applied in the inverse order of maturity, second as a prepayment of the outstanding principal amount of any Swingline Advances, third as a prepayment of the outstanding Revolving Tranche A Advances on a pro rata basis, and fourth as cash collateral deposited into the Cash Collateral Account to Cash Collateralize the Letter of Credit Exposure, and (ivi) the Commitments shall be reduced permanently by the amounts applied to the Revolving Tranche A Advances under clause (iii). Subject to the terms set forth above and the terms in clause (b) and (c) below, upon (A) application of the Equity Issuance Proceeds as provided above within the ten (10) Business Day period described above in such amounts sufficient to cure the Events of Default under the covenant set forth in Section 6.16 or Section 6.17, and (B) delivery of an updated Compliance Certificate executed by a Responsible Officer of the Borrower to date on which the Administrative Agent reflecting compliance with is notified by the Parent that such Cure Right will not be consummated and (ii) the date that is sixteen (16) Business Days after the date on which the applicable financial statements are required to be delivered pursuant to Section 6.16 5.2(a) or Section 6.17, such Events of Default shall be deemed cured and no longer in existence.
(b) The parties hereby acknowledge and agree that this Section 7.7 may not be relied on for purposes of calculating ), neither the Administrative Agent (nor any financial ratios or other conditions or compliances other than the Leverage Ratio covenant set forth in Section 6.16 and the Fixed Charge Coverage Ratio covenant set forth in Section 6.17 and shall not result in any adjustment to any amounts (including, for the avoidance of doubt, any reduction in Debt for the subject fiscal quarter as a result of the application of the Equity Issuance Proceeds required in clause (a) above or any determination of the Leverage Ratio for purposes of determining Applicable Margin) other than the amount of EBITDA referred to in Section 7.7(a) above for purposes of determining the Borrower’s compliance with Section 6.16 and Section 6.17.
(c) In each period of four fiscal quarters, there shall be at least two (2) fiscal quarters in which no cure set forth in this Section 7.7 is made. Furthermore, the Borrower may not utilize more than three (3) cures provided in this Section 7.7.sub- 126
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Equity Right to Cure. (a) Notwithstanding anything to the contrary contained in Section 7.1, in the event of any Event of Default under the covenant set forth in Section 6.16 or Section 6.17 6.16, and in each case until the expiration of the tenth (10th) Business Day after the date on which financial statements are required to be delivered pursuant to Section 5.2(a) or (b) with respect to the applicable fiscal quarter hereunderhereunder (provided, that in the Borrower case of the start of a Covenant Testing Period that reverts to previously delivered financial statements, such cash proceeds may be received on or before the date that is 10 Business Days after the start of such Covenant Testing Period), Parent may sell or issue common Equity Interests of the Borrower Parent to any of the its Equity Interest holders (to the extent such transaction would not result in a Change in Control) or obtain cash capital contributions on account of common Equity Interests of the Borrower Parent, and apply the Equity Issuance Proceeds thereof or such cash capital contributions to increase consolidated EBITDA of Parent with respect to such applicable quarter (and include it as consolidated EBITDA in such quarter for any four fiscal quarter period included in including such calculationquarter); provided that (i) such Equity Issuance Proceeds or cash capital contributions are actually received by the Borrower Parent on account of its common Equity Interests, no later than ten (10) Business Days after the date on which financial statements are required to be delivered pursuant to Section 5.2(a) or (b) with respect to such fiscal quarter hereunderhereunder (provided, that in the case of the start of a Covenant Testing Period that reverts to previously delivered financial statements, such cash proceeds may be received on or before the date that is 10 Business Days after the start of such Covenant Testing Period), (ii) the amount of such Equity Issuance Proceeds included as consolidated EBITDA for any such fiscal quarter shall not exceed the minimum amount necessary to cause the Leverage Ratio or the minimum Fixed Charge Coverage Ratio on a pro forma basis after giving effect to the cure provided herein, for any applicable period to be less than the then required levels in compliance under Section 6.16 or greater than for the then required levels under Section 6.17applicable period, as applicable, and (iii) such Equity Issuance Proceeds or contribution must be applied first, as a prepayment of the outstanding principal amount of the Tranche B Term Advances and applied in the inverse order of maturity, second as a prepayment of the outstanding principal amount of any Swingline Advances, third as a prepayment of the outstanding Revolving Tranche A Advances on a pro rata basis, and fourth second as cash collateral deposited into a prepayment of the Cash Collateral Account to Cash Collateralize the Letter of Credit Exposure, and (iv) the Commitments shall be reduced permanently by the amounts applied to the Revolving Tranche A outstanding Advances under clause (iii)on a pro rata basis. Subject to the terms set forth above and the terms in clause clauses (b) and (c) below, upon (A) application of the Equity Issuance Proceeds as provided above within the ten (10) Business Day period described above in such amounts sufficient to cure the Events of Default under the covenant set forth in Section 6.16 or Section 6.176.16, and (By) delivery of an updated Compliance Certificate executed by a Responsible Officer of the Borrower to the Administrative Agent reflecting compliance with Section 6.16 or Section 6.17, the applicable covenant such Events of Default shall be deemed cured and no longer in existence.
(b) The parties hereby acknowledge and agree that this Section 7.7 may not be relied on for purposes of calculating any financial ratios or other conditions or compliances other than the Leverage Ratio covenant set forth in Section 6.16 and the Fixed Charge Coverage Ratio covenant set forth in Section 6.17 6.16, and shall not result in any adjustment to any amounts (including, for the avoidance of doubt, any reduction in Debt for the subject fiscal quarter as a result of the application of the Equity Issuance Proceeds required in clause (a) above or any determination of the Leverage Ratio for purposes of determining Applicable Margin) other than the amount of the consolidated EBITDA referred to in Section 7.7(a) above solely for purposes of determining the Borrower’s 's compliance with Section 6.16 6.16. Borrower shall not be permitted to request any Advance or Letter of Credit Extension, and such Events of Default shall be considered hereunder to have occurred and be continuing for all purposes (other than for purposes of Section 6.177.2 hereof) until such Equity Issuance Proceeds or cash capital contributions have been received by Borrower.
(c) In each period of four fiscal quartersFrom and after the Restatement Date, there shall be at least two Borrower (2i) fiscal quarters in which no cure set forth in this Section 7.7 is made. Furthermore, the Borrower may not utilize more than three five (35) cures provided in this Section 7.7, (ii) may not utilize more than two (2) cures provided in this Section 7.7 in any four fiscal quarter period, and (iii) may not utilize cures in two (2) consecutive fiscal quarters.
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