Financial Covenant. The Borrower will not permit the Secured Leverage Ratio at the end of any Test Period to exceed the ratio set forth below: September 30, 2015 through September 30, 2017 3.00:1.00 December 31, 2017 through September 30, 2018 2.75:1.00 December 31, 2018 and thereafter 2.50:1.00 In the event the Borrower fails to comply with the financial covenants set forth in this Section 7.10 as of the last day of any fiscal quarter, any Net Cash Proceeds of the issuance of Equity Interests or Equity Equivalents (other than Disqualified Capital Stock) received by the Borrower on or prior to the day that is ten (10) Business Days after the day on which financial statements are required to be delivered for such Fiscal Quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, will, at the irrevocable election of Borrower, be included in the calculation of Consolidated EBITDA for such fiscal quarter solely for the purposes of determining compliance with such covenants at the end of such fiscal quarter and any subsequent period that includes such fiscal quarter (any such equity contribution so included in the calculation of Consolidated EBITDA, a “Specified Equity Contribution”); provided that (a) notice of Borrower’s intent to make a Specified Equity Contribution shall be delivered no later than the tenth (10th) day following the date on which financial statements are required to be delivered for the applicable Fiscal Quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, (b) in each consecutive four fiscal quarter period there will be at least two fiscal quarters in which no Specified Equity Contribution is made, (c) the amount of any Specified Equity Contribution will be no greater than the amount required to cause the Borrower to be in compliance with such covenants, (d) all Specified Equity Contributions will be disregarded for purposes of the calculation of Consolidated EBITDA for all other purposes, including calculating basket levels, financial ratio determinations, pricing and other items governed by reference to Consolidated EBITDA (other than for determining compliance with this Section 7.10), (e) there shall be no more than five (5) Specified Equity Contributions made in the aggregate after the Closing Date, (f) any Term Loans voluntarily prepaid with the proceeds of Specified Equity Contributions in a manner permitted by this Agreement shall be deemed no longer outstanding for purposes of determining compliance with this Section 7.10; provided that in no event shall any such reduction of Consolidated Secured Debt be given effect during the Fiscal Quarter with regard to which the Specified Equity Contribution is made, and (g) upon the Administrative Agent’s receipt of the notice of Borrower’s intent to make a Specified Equity Contribution and until ten (10) Business Days after the day on which the financial statements are required to be delivered for the applicable fiscal quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, neither the Administrative Agent nor any Lender shall accelerate the Finance Obligations or otherwise exercise any remedies available to it during the continuance of a Default or Event of Default under the Loan Documents, including any remedies pursuant to Section 8.02.
Appears in 2 contracts
Samples: Credit Agreement (Albany Molecular Research Inc), Credit Agreement (Albany Molecular Research Inc)
Financial Covenant. The Borrower will (a) Each Loan Party covenants and agrees that, until termination of all of the Commitments and payment in full of the Obligations, Fixed Charge Coverage Ratio shall be not permit the Secured Leverage Ratio at less than 1.00 to 1.00 as of the end of any Test Period to exceed each fiscal month, based on the ratio set forth below: September 30twelve (12) immediately preceding fiscal months for which Agent has received financial statements, 2015 through September 30provided, 2017 3.00:1.00 December 31that, 2017 through September 30compliance with such financial covenant shall only be required during a Compliance Period, 2018 2.75:1.00 December 31, 2018 and thereafter 2.50:1.00 In the event the Borrower fails to comply with the in which case such financial covenants set forth in this Section 7.10 covenant shall be tested as of the last day of any the then most recently completed fiscal quarterperiod for which financial statements have been delivered and for each month end thereafter until the Compliance Period ends.
(i) Notwithstanding anything to the contrary contained in Section 7(a), any Net Cash Proceeds in the event that the Loan Parties shall fail to comply with the requirements of such Section 7(a), until the expiration of the 10th day subsequent to the due date for delivery of the financial statements and related compliance certificate for such period pursuant to Section 5.1, Parent shall have the right to issue shares of its Equity Interests permitted to be issued hereunder for cash and any such investment shall be in immediately available funds. Subject to the limitations set forth in clause (b)(ii) below, such amounts shall be added to Consolidated EBITDA for the last fiscal month of Parent for the applicable period and then solely for purposes of determining compliance with Section 7(a) for such period and any subsequent period which includes such fiscal month and shall be disregarded for purposes of determining Consolidated EBITDA for any pricing, financial covenant based conditions or any baskets with respect to the covenants contained in this Agreement and there shall be no pro forma reduction in Indebtedness with the proceeds of any such issuance of Equity Interests for determining compliance with Section 7(a) or Equity Equivalents (other than Disqualified Capital Stock) received by the Borrower on for determining any pricing, financial covenant based conditions or prior baskets with respect to the day that is ten (10) Business Days after the day on which financial statements are required to be delivered for such Fiscal Quarter pursuant to Section 6.01(a) or 6.01(b)covenants contained in this Agreement, as the in each case may be, will, at the irrevocable election of Borrower, be included in the calculation month in which such proceeds are used or subsequent periods that include such month.
(ii) Notwithstanding anything herein to the contrary, (A) in no event shall the Loan Parties be entitled to exercise the right described in clause (b)(i) above (x) more than twice in any twelve-month period or (y) more than four times in the aggregate, (B) any cash contribution or issuance of stock described in clause (b)(i) above shall be permitted in an unlimited amount; provided, that, the amount added to Consolidated EBITDA for such fiscal quarter solely for the purposes of determining compliance with such covenants at the end of such fiscal quarter and any subsequent period that includes such fiscal quarter (any such equity contribution so included in the calculation of Consolidated EBITDA, a “Specified Equity Contribution”); provided that (a) notice of Borrower’s intent to make a Specified Equity Contribution month shall be delivered no later than the tenth (10th) day following the date on which financial statements are required to be delivered for the applicable Fiscal Quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, (b) in each consecutive four fiscal quarter period there will be at least two fiscal quarters in which no Specified Equity Contribution is made, (c) the amount of any Specified Equity Contribution will be no greater than the amount required to cause the Borrower Loan Parties to be in compliance with Section 7(a) for the applicable period and (iii) to the extent that any cash proceeds received in connection with any exercise of the right described in clause (b)(i) above is used to repay Indebtedness, such covenants, (d) all Specified Equity Contributions will Indebtedness shall not be disregarded deemed to have been repaid for purposes of calculating the calculation Fixed Charge Coverage Ratio for the period with respect to which such compliance certificate applies or any other compliance certificate including such fiscal month in respect of which such Consolidated EBITDA for all other purposes, including calculating basket levels, financial ratio determinations, pricing and other items governed has been so increased.
(iii) Upon delivery of a certificate by reference Borrowers to Consolidated EBITDA (other than for determining compliance with this Section 7.10), (e) there shall be no more than five (5) Specified Equity Contributions made in Agent as to the aggregate after the Closing Date, (f) any Term Loans voluntarily prepaid with amount of the proceeds of Specified such issuance of Equity Contributions Interests and that such amount (i) has been applied to the payment of the Obligations, and (ii) is in an amount no greater than the amount required to cause the Loan Parties to be in compliance with Section 7(a) for the applicable period, then any Event of Default that occurred and is continuing from a manner permitted by this Agreement breach of Section 7(a) shall be deemed cured with no longer outstanding for purposes of determining compliance with this Section 7.10; provided that in no event shall any such reduction of Consolidated Secured Debt be given effect during further action required by the Fiscal Quarter with regard Required Lenders. Prior to which the Specified Equity Contribution is made, and (g) upon the Administrative Agent’s receipt date of the notice of Borrower’s intent to make a Specified Equity Contribution and until ten (10) Business Days after the day on which the financial statements are required to be delivered for the applicable fiscal quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, neither the Administrative Agent nor any Lender shall accelerate the Finance Obligations or otherwise exercise any remedies available to it during the continuance delivery of a Default or certificate conforming to the requirements of this Section, any Event of Default under that has occurred as a result of a breach of Section 7(a) shall be deemed to be continuing and, as a result, the Loan DocumentsLenders (including the Swing Lender and the Issuing Bank) shall have no obligation to make additional loans or otherwise extend additional credit hereunder. In the event Borrowers do not cure all financial covenant violations as provided in this Section 7(b), including any remedies pursuant to Section 8.02the existing Event(s) of Default shall continue unless waived in writing by the Required Lenders in accordance herewith.
Appears in 2 contracts
Samples: Credit Agreement (CVR Partners, Lp), Credit Agreement (CVR Energy Inc)
Financial Covenant. The Borrower will not (a) During the continuance of any Compliance Event, subject to clause (b) below, permit the Secured Leverage Consolidated Fixed Charge Coverage Ratio at to be less than 1.00:1.00, tested immediately upon the end occurrence of any Test Period to exceed the ratio set forth below: September 30, 2015 through September 30, 2017 3.00:1.00 December 31, 2017 through September 30, 2018 2.75:1.00 December 31, 2018 a Compliance Event and thereafter 2.50:1.00 In the event the Borrower fails to comply with the financial covenants set forth in this Section 7.10 as of the last day of the most recent Test Period during the continuance of a Compliance Event.
(b) Notwithstanding anything to the contrary contained in Article IX, in the event of any fiscal quarter, any Net Cash Proceeds Event of Default occurring as a result of a breach of the issuance covenant set forth in Section 8.18(a), until the expiration of Equity Interests or Equity Equivalents (other than Disqualified Capital Stock) received by the Borrower on or prior to the tenth day that is ten (10) Business Days after the day date on which the financial statements are required to be delivered for such Fiscal Quarter pursuant to Section 6.01(a7.1(a) or 6.01(b(b), as the case may beapplicable, will, at the irrevocable election of Borrower, be included in the calculation of Consolidated EBITDA for such with respect to any fiscal quarter solely for the purposes of determining compliance with such covenants at the end of such fiscal quarter and any subsequent period that includes such fiscal quarter hereunder, Intermediate Holdings may issue equity (any provided such equity contribution so included issuance does not result in a Change in Control and constitutes common equity or which is not Disqualified Stock) and contribute the calculation net cash proceeds received therefrom to the capital of Consolidated EBITDA, New Holdings as cash common equity (a “Specified Equity Contribution”)) in order to remediate any Event of Default that has occurred with respect to Section 8.18(a) for such fiscal quarter. Upon receipt of such Specified Equity Contribution in accordance with the immediately preceding sentence, the amount of the proceeds thereof shall, solely for the purposes (and subject to the limitations) hereinafter described in this Section 8.18(b), increase Consolidated EBITDA with respect to such applicable fiscal quarter (and any subsequent period of four consecutive fiscal quarters that includes such fiscal quarter) and if, after giving effect to such increase in Consolidated EBITDA, New Holdings and its Subsidiaries shall then be in compliance with the requirements of Section 8.18(a), New Holdings shall be deemed to have satisfied the requirements set forth therein as of the relevant four fiscal quarter period with the same effect as though there had been no failure to comply therewith at such date, and the applicable breach or default that had occurred shall be deemed cured for purposes of this Agreement; provided that such net cash proceeds (ai) notice are actually received by New Holdings (through a capital contribution of Borrower’s intent such proceeds by Intermediate Holdings to make a Specified Equity Contribution shall be delivered New Holdings) no later than the tenth (10th) day following ten days after the date on which financial statements are required to be delivered with respect to such fiscal quarter hereunder and (ii) do not exceed the aggregate amount necessary to cure (by addition to Consolidated EBITDA) such Event of Default under Section 8.18(a) for the such period. The parties hereto acknowledge that a given Specified Equity Contribution may not be counted as having been made in more than one fiscal quarter. The parties hereby acknowledge that this Section 8.18(b) may not be relied on for purposes of calculating any financial ratios other than as applicable Fiscal Quarter pursuant to Section 6.01(a8.18(a) and shall not be included for purposes of determining pricing, fees or any financial ratio-based conditions (including, without limitation, compliance with any covenant or condition other than Section 8.18(a) itself which requires a determination of whether the financial covenant in Section 8.18(a) is satisfied, whether or not same would otherwise be applicable) or 6.01(b), as any baskets with respect to the case may be, covenants or conditions contained in this Agreement. There shall be no pro forma or other reduction in Indebtedness with the proceeds of any Specified Equity Contribution (bincluding by way of netting) for purposes of determining compliance with Section 8.18(a) in each consecutive four the fiscal quarter in which a Specified Equity Contribution is made; provided that such Specified Equity Contribution may reduce Indebtedness in a subsequent fiscal quarter.
(i) In each period of four consecutive fiscal quarters, there will shall be at least two fiscal quarters in which no Specified Equity Contribution cure set forth in Section 8.18(b) is made. In addition, any reduction in Indebtedness (cor increase in cash for netting purposes) with the amount proceeds of any Specified Equity Contribution will made pursuant to Section 8.18(b) shall be no greater than the amount required to cause the Borrower to be in compliance with such covenants, (d) all Specified Equity Contributions will be disregarded ignored for purposes of the calculation of Consolidated EBITDA for all other purposes, including calculating basket levels, financial ratio determinations, pricing and other items governed by reference to Consolidated EBITDA (other than for determining compliance with this the covenant set forth in Section 7.108.18(a), except for determinations, including increases in cash for netting purposes, made pursuant to Section 8.18(a) for fiscal quarters after the respective fiscal quarter in which such Event of Default is remediated by such Specified Equity Contribution.
(eii) there There shall be no more than five cures under Section 8.18(a) from the date hereof through the Latest Maturity Date.
(5iii) Specified Equity Contributions made in the aggregate after the Closing Date, (f) any Term Loans voluntarily prepaid with the proceeds of Specified Equity Contributions in a manner permitted by this Agreement shall be deemed no longer outstanding for purposes of determining compliance with this Section 7.10; provided that in no event shall any such reduction of Consolidated Secured Debt be given effect during the Fiscal Quarter with regard If notice has been delivered to which the Specified Equity Contribution is made, and (g) upon the Administrative Agent’s receipt Agent of the notice of Borrower’s intent to make a Specified Equity Contribution and until ten (10) Business Days after such notice to be delivered on or prior to the day date on which the applicable financial statements are required to be delivered for and containing reasonable detail on the applicable terms and conditions of the Specified Equity Contribution), then from the last day of the fiscal quarter pursuant related to Section 6.01(a) or 6.01(b)such cure notice until the required date for receipt of the Specified Equity Contribution, as the case may be, neither the Administrative Agent nor any Lender shall accelerate the Finance Obligations or otherwise exercise any remedies available to it during the continuance of a no Default or Event of Default shall have occurred under the Loan DocumentsDocuments with respect to any default under Section 8.18(a) for which such cure notice was delivered unless the ten day period set forth in clause (a) above has expired without the Specified Equity Contribution having been received; provided that until the occurrence of the satisfaction of the conditions in Section 6.2 and the receipt of such Specified Equity Contribution, including no Lender shall be obligated to make any remedies pursuant to Section 8.02Revolving Loan, no Swing Line Loans shall be made and no Issuing Bank shall issue any Letter of Credit.
Appears in 2 contracts
Samples: Abl Credit Agreement (Cumulus Media Inc), Abl Credit Agreement (Cumulus Media Inc)
Financial Covenant. The Borrower will not permit Notwithstanding anything to the Secured Leverage Ratio at the end of any Test Period to exceed the ratio set forth below: September 30contrary contained in this Section 8.13, 2015 through September 30, 2017 3.00:1.00 December 31, 2017 through September 30, 2018 2.75:1.00 December 31, 2018 and thereafter 2.50:1.00 In in the event that the Borrower fails reasonably expects to fail (or has failed) to comply with the financial covenants set forth requirements of the Financial Covenant in this Section 7.10 7 as of the last day end of any fiscal quarter, at any Net Cash Proceeds time during the last fiscal quarter through and until the expiration of the issuance of Equity Interests or Equity Equivalents (other than Disqualified Capital Stock) received by the Borrower on or prior tenth Business Day subsequent to the day that is ten (10) Business Days after the day on which financial statements are required to be delivered for such Fiscal Quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, will, at the irrevocable election of Borrower, be included in the calculation of Consolidated EBITDA for such fiscal quarter solely for the purposes of determining compliance with such covenants at the end of such fiscal quarter and any subsequent period that includes such fiscal quarter (any such equity contribution so included in the calculation of Consolidated EBITDA, a “Specified Equity Contribution”); provided that (a) notice of Borrower’s intent to make a Specified Equity Contribution shall be delivered no later than the tenth (10th) day following the date on which financial statements are required to be delivered for the applicable Fiscal Quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, (b) in each consecutive four fiscal quarter period there will be at least two fiscal quarters in which no Specified Equity Contribution is made, (c) the amount of any Specified Equity Contribution will be no greater than the amount required to cause the Borrower to be in compliance with such covenants, (d) all Specified Equity Contributions will be disregarded for purposes of the calculation of Consolidated EBITDA for all other purposes, including calculating basket levels, financial ratio determinations, pricing and other items governed by reference to Consolidated EBITDA (other than for determining compliance with this Section 7.10), (e) there shall be no more than five (5) Specified Equity Contributions made in the aggregate after the Closing Date, (f) any Term Loans voluntarily prepaid with the proceeds of Specified Equity Contributions in a manner permitted by this Agreement shall be deemed no longer outstanding for purposes of determining compliance with this Section 7.10; provided that in no event shall any such reduction of Consolidated Secured Debt be given effect during the Fiscal Quarter with regard to which the Specified Equity Contribution is made, and (g) upon the Administrative Agent’s receipt of the notice of Borrower’s intent to make a Specified Equity Contribution and until ten (10) Business Days after the day on which the financial statements are required to be delivered pursuant to Section 5.1 with respect to such fiscal quarter (the “Cure Deadline”), the Borrower shall have the right to issue Equity Interests (other than Disqualified Equity Interests) for cash or otherwise receive cash contributions to the Equity Interests (other than Disqualified Equity Interests) of the Borrower (collectively, the “Cure Right”), and upon the receipt by the Borrower of the net proceeds of such issuance or contribution (the “Cure Amount”) pursuant to the exercise by the Borrower of such Cure Right; provided, that if such Cure Amount is received by the Borrower on or before the applicable Cure Deadline, compliance with the Financial Covenant for such fiscal quarter shall be recalculated giving pro forma effect to the following pro forma adjustments:
(i) EBITDA shall be increased with respect to such applicable fiscal quarter pursuant with respect to Section 6.01(a) or 6.01(b)which such Cure Amount is received by the Borrower and any Reference Period that includes such fiscal quarter, as solely for the case may be, neither the Administrative Agent nor any Lender shall accelerate the Finance Obligations or otherwise exercise any remedies available to it during the continuance purpose of a Default or determining whether an Event of Default has occurred and is continuing as a result of a violation of the Financial Covenant and not for any other purpose under this Agreement, by an amount equal to the Loan DocumentsCure Amount and any prepayment of Indebtedness with the Cure Amount shall be disregarded for purposes of measuring the Financial Covenant for such fiscal quarter;
(ii) if, including after giving pro forma effect to such increase in EBITDA, the Borrower shall then be in compliance with the requirements of the Financial Covenant, the Borrower shall be deemed to have satisfied the requirements of the Financial Covenant as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, and the applicable breach or default of the Financial Covenant that had occurred shall be deemed cured for purposes of this Agreement; and
(iii) Indebtedness for which the Cure Amount is deemed applied shall be decreased solely to the extent proceeds of the Cure Amount are applied to prepay any remedies pursuant Indebtedness (provided that with respect to Section 8.02any Term Loans so prepaid such repayment shall be a permanent repayment of such Indebtedness and termination of commitments thereunder) included in the calculation of First Lien Leverage Ratio; provided, that, the Borrower shall have notified the Agent in writing of the exercise of such Cure Right within five Business Days of the receipt of the Cure Amounts.
Appears in 2 contracts
Samples: Credit Agreement (Upland Software, Inc.), Credit Agreement (Upland Software, Inc.)
Financial Covenant. (a) The Lead Borrower will not permit and its Restricted Subsidiaries shall, on any date when Availability is less than the Secured Leverage greater of (a) 12.5% of the Aggregate Commitments, and (b) $10,000,000 (the “FCCR Test Amount”), have a Consolidated Fixed Charge Coverage Ratio of at least 1.0 to 1.0, tested for the four fiscal quarter period ending on the last day of the most recently ended fiscal quarter for which the Lead Borrower was required to deliver Section 9.01 Financials, and at the end of any each succeeding fiscal quarter thereafter until the date on which Availability has exceeded the FCCR Test Period to exceed the ratio set forth below: September 30, 2015 through September 30, 2017 3.00:1.00 December 31, 2017 through September 30, 2018 2.75:1.00 December 31, 2018 and thereafter 2.50:1.00 In the event the Borrower fails to comply Amount for 30 consecutive days.
(b) For purposes of determining compliance with the financial covenants covenant set forth in this Section 7.10 as 10.11(a) above, cash equity contributions (which equity shall be common equity or otherwise in a form reasonably acceptable to the Administrative Agent) made to Holdings (which shall be contributed in cash to the common equity of the last day of any fiscal quarter, any Net Cash Proceeds Lead Borrower) after the end of the issuance of Equity Interests or Equity Equivalents (other than Disqualified Capital Stock) received by the Borrower relevant fiscal quarter and on or prior to the day that is ten (10) 10 Business Days after the day on which Lead Borrower and its Restricted Subsidiaries become subject to testing the financial statements are required to be delivered covenant under clause (a) of this Section 10.11 for such Fiscal Quarter pursuant fiscal quarter (such 10-Business Day period being referred to Section 6.01(a) or 6.01(b), herein as the case may be, “Interim Period”) will, at the irrevocable election request of the Lead Borrower, be included in the calculation of Consolidated EBITDA for such fiscal quarter solely for the purposes of determining compliance with such covenants financial covenant at the end of such fiscal quarter and any applicable subsequent period that includes periods which include such fiscal quarter (any such equity contribution so included in the calculation of Consolidated EBITDA, a “Specified Equity Contribution”); provided that (a) notice of Borrower’s intent to make a Specified Equity Contribution shall Contributions may be delivered made no later more than two times in any twelve fiscal month period and no more than five times during the tenth (10th) day following the date on which financial statements are required to be delivered for the applicable Fiscal Quarter pursuant to Section 6.01(a) or 6.01(b), as the case may beterm of this Agreement, (b) in each consecutive four fiscal quarter period there will be at least two fiscal quarters in which no Specified Equity Contribution is made, (c) the amount of any Specified Equity Contribution will shall be no greater than the amount required to cause the Borrower Borrowers to be in pro forma compliance with such covenantsfinancial covenant, (c) the Borrowers shall not be permitted to borrow hereunder during the Interim Period until the relevant Specified Equity Contribution has been made, (d) all Specified Equity Contributions will shall be disregarded for purposes of determining any baskets calculated on the calculation basis of Consolidated EBITDA for all contained herein and in the other purposes, including calculating basket levels, financial ratio determinations, pricing and other items governed by reference to Consolidated EBITDA (other than for determining compliance with this Section 7.10)Credit Documents, (e) there shall be no more than five (5) Specified Equity Contributions made pro forma or other reduction in the aggregate after the Closing Date, (f) any Term Loans voluntarily prepaid Indebtedness with the proceeds of any Specified Equity Contributions in a manner permitted by this Agreement shall be deemed no longer outstanding Contribution for purposes of determining compliance with this Section 7.10; provided that the financial covenant for the fiscal quarter in no event shall any which such reduction of Consolidated Secured Debt be given effect during the Fiscal Quarter with regard to which the Specified Equity Contribution is made, made and (gf) upon from the date of the Administrative Agent’s receipt of a written notice from the notice Lead Borrower that the Lead Borrower intends to exercise its cure rights under this Section 10.11(b) through the last Business Day of Borrower’s intent to make a Specified Equity Contribution and until ten (10) Business Days after the day on which the financial statements are required to be delivered for the applicable fiscal quarter pursuant to Section 6.01(a) or 6.01(b), as the case may beInterim Period, neither the Administrative Agent nor any Lender shall have any right to accelerate the Finance Obligations Loans or otherwise exercise terminate the Commitments, and none of the Administrative Agent nor any remedies Lender shall have any right to foreclose on or take possession of the Collateral or any other right or remedy under the Credit Documents that would be available to it during on the continuance basis of a Default or an Event of Default under resulting from the Loan Documents, including any remedies pursuant failure to comply with Section 8.0210.11(a).
Appears in 2 contracts
Samples: Revolving Credit Agreement (PAE Inc), Revolving Credit Agreement (PAE Inc)
Financial Covenant. The Borrower will not permit Notwithstanding anything to the Secured Leverage Ratio at the end of any Test Period to exceed the ratio set forth below: September 30contrary contained in Section 8.01, 2015 through September 30, 2017 3.00:1.00 December 31, 2017 through September 30, 2018 2.75:1.00 December 31, 2018 and thereafter 2.50:1.00 In in the event the that Borrower fails to comply with the financial covenants set forth in this Section 7.10 as requirements of the last day of Financial Covenant with respect to any fiscal quarter, then Borrower may, at its election upon delivery of a Cure Notice to the Administrative Agent (the “Cure Election”), designate any Net Cash Proceeds of the issuance of Equity Interests or Equity Equivalents (other than Disqualified Capital Stock) capital contributions received by Borrower as cash common equity (such cash amount received, the Borrower “Cure Amount”) during the period beginning on or prior the first day after the end of such fiscal quarter and ending on the 15th Business Day subsequent to the day date that is ten (10) Business Days after the day on which financial statements are required to be delivered for such Fiscal Quarter pursuant to Section 6.01(a5.01(a) or 6.01(b), as the case may be, will, at the irrevocable election of Borrower, be included in the calculation of Consolidated EBITDA for Section 5.01(b) with respect to such fiscal quarter solely for (such period, the purposes of determining compliance “Cure Period”) and, upon such Cure Election, the Financial Covenant shall be recalculated giving effect to the following pro forma adjustments:
(i) Consolidated EBITDA shall be increased with respect to such covenants at the end of such applicable fiscal quarter and any subsequent period Test Period that includes contains such fiscal quarter (any such equity contribution so included in the calculation of Consolidated EBITDAquarter, a “Specified Equity Contribution”); provided that (a) notice of Borrower’s intent to make a Specified Equity Contribution shall be delivered no later than the tenth (10th) day following the date on which financial statements are required to be delivered solely for the applicable Fiscal Quarter pursuant purpose of measuring the Financial Covenant and not for any other purpose under this Agreement, by an amount equal to Section 6.01(athe Cure Amount;
(ii) or 6.01(bsolely to the extent the proceeds of any Cure Amount are used to actually prepay Term Loans and Revolving Loans (to the extent accompanied by a concurrent permanent commitment reduction), as the case may be, (b) in each consecutive four fiscal quarter period there will be at least two fiscal quarters in which no Specified Equity Contribution is made, (c) the amount of any Specified Equity Contribution will be no greater than the amount required to cause the Borrower to be in compliance with such covenants, (d) all Specified Equity Contributions will be disregarded for purposes of the calculation of Consolidated EBITDA for all other purposes, including calculating basket levels, financial ratio determinations, pricing and other items governed by reference to Consolidated EBITDA (other than for determining compliance with this Section 7.10), (e) there shall be no more than five (5) Specified Equity Contributions made a pro forma reduction in the aggregate after the Closing Date, (f) any Term Loans voluntarily prepaid with the proceeds of Specified Equity Contributions in a manner permitted by this Agreement shall be deemed no longer outstanding Indebtedness for purposes of determining compliance with this Section 7.10the Financial Covenant with respect to the fiscal quarter in which such Cure Right is exercised and any Test Period that contains such fiscal quarter (it being understood that there shall be no cash netting of the proceeds of any Cure Amount); provided that and
(iii) if, after giving effect to the foregoing recalculations, Borrower shall then be in compliance with the requirements of the Financial Covenant, Borrower shall be deemed to have satisfied the requirements of the Financial Covenant as of the relevant date of determination with the same effect as though there had been no event shall any failure to comply therewith at such reduction of Consolidated Secured Debt be given effect during the Fiscal Quarter with regard to which the Specified Equity Contribution is madedate, and (g) upon the Administrative Agent’s receipt applicable breach of the notice of Borrower’s intent to make a Specified Equity Contribution Financial Covenant that had occurred (and until ten (10) Business Days after the day on which the financial statements are required to be delivered for the applicable fiscal quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, neither the Administrative Agent nor any Lender shall accelerate the Finance Obligations or otherwise exercise any remedies available to it during the continuance of a corresponding Default or Event of Default under due to failure to comply with the Loan DocumentsFinancial Covenant) shall be deemed cured for purposes of this Agreement; provided that Borrower shall have notified the Administrative Agent in writing (such notice, including any remedies pursuant to Section 8.02the “Cure Notice”) of the Cure Election by no later than the last day of the Cure Period.
Appears in 2 contracts
Samples: First Lien Credit Agreement (SolarWinds Corp), First Lien Credit Agreement (SolarWinds Corp)
Financial Covenant. The Borrower will not permit (a) During a Covenant Period, the Secured Leverage Borrowers and their Restricted Subsidiaries shall maintain a Consolidated Fixed Charge Coverage Ratio of at least 1.00 to 1.00, tested for the end of any Test Period to exceed the ratio set forth below: September 30, 2015 through September 30, 2017 3.00:1.00 December 31, 2017 through September 30, 2018 2.75:1.00 December 31, 2018 and thereafter 2.50:1.00 In the event the Borrower fails to comply with the financial covenants set forth in this Section 7.10 as of four fiscal quarter period ending on the last day of any the most recently ended fiscal quarterquarter for which the Borrowers were required to deliver financial statements to the Administrative Agent in accordance with Section 5.04.
(b) [Reserved].
(c) Notwithstanding anything to contrary in this Agreement (including Article VII), any Net Cash Proceeds upon an Event of Default as a result of the issuance Borrowers’ failure to comply with Section 6.10(a) above, such Event of Equity Interests or Equity Equivalents (other than Disqualified Capital Stock) received by the Borrower on or prior Default shall, subject to the day that is limitations set forth below, be deemed cured ab initio and cease to exist in the event that, within ten (10) Business Days after the day date on which the Borrowers were required to deliver financial statements are required in accordance with Section 5.04 for the fiscal quarter in which such Event of Default occurs, cash proceeds of a sale of, or contribution to, equity (which equity shall be common equity, “qualified” preferred equity or other equity (such other equity to be delivered for on terms reasonably acceptable to the Administrative Agent)) of Parent are received as a cash common equity contribution by the Lead Borrower. Each such Fiscal Quarter pursuant equity contribution is referred to Section 6.01(a) or 6.01(b), as the case a “Cure Action.” The proceeds of any Cure Action may be, will, at the irrevocable election of Borrower, be included solely in the calculation of Consolidated EBITDA for such fiscal quarter (solely for purposes of calculating the ratio in Section 6.10(a) and not for any other purpose hereunder (including for purposes of determining compliance any financial ratio-based conditions, pricing or the availability of any basket under Article VI of this Agreement), and there shall be no pro forma or other reduction in Indebtedness (directly through repayment or indirectly through netting) with the proceeds of such covenants Cure Action in connection with determining such calculation during the period in which such proceeds are included in EBITDA) at the end request of the Lead Borrower as if such fiscal quarter and any subsequent period that includes such fiscal quarter (any such equity contribution so included in proceeds were contributed on the calculation last day of Consolidated EBITDA, a “Specified Equity Contribution”); provided that (a) notice of Borrower’s intent to make a Specified Equity Contribution shall be delivered no later than the tenth (10th) day following the date on which financial statements are required to be delivered for the applicable Fiscal Quarter pursuant to Section 6.01(a) or 6.01(b)fiscal quarter, as the case and must be sufficient (but may be, (b) not be in each consecutive four fiscal quarter period there will be at least two fiscal quarters in which no Specified Equity Contribution is made, (c) excess of the amount of any Specified Equity Contribution will be no greater than the amount required required) to cause the Borrower Loan Parties to be in compliance on a Pro Forma Basis with such covenants, the financial covenant set forth in Section 6.10(a). No more than two (d2) all Specified Equity Contributions will Cure Actions may be disregarded for purposes of the calculation of Consolidated EBITDA for all other purposes, including calculating basket levels, financial ratio determinations, pricing taken in any four (4) fiscal quarter period and other items governed by reference to Consolidated EBITDA (other than for determining compliance with this Section 7.10), (e) there shall be no more than five (5) Specified Equity Contributions made Cure Actions may be taken during the term of this Agreement. If, after giving effect to the Cure Action, the Borrowers shall be in the aggregate after the Closing Date, (f) any Term Loans voluntarily prepaid compliance with the proceeds requirements of Specified Equity Contributions in a manner permitted by this Agreement Section 6.10(a), the Borrowers shall be deemed to have satisfied the requirements of Section 6.10(a) as of the relevant date of determination with the same effect as though there had been no longer outstanding failure to comply therewith at such date, and the applicable breach or Event of Default with respect to Section 6.10(a) that had occurred shall be deemed cured for purposes of determining compliance this Agreement. To the extent a fiscal quarter for which such Consolidated Fixed Charge Coverage Ratio is initially recalculated as a result of such Cure Action is included in the calculation of the Consolidated Fixed Charge Coverage Ratio in a subsequent fiscal period, the results of the Cure Action shall be included in the amount of EBITDA for such fiscal quarter in such subsequent fiscal period. After the occurrence of the breach, Default or Event of Default resulting from a failure to comply with this Section 7.10; provided 6.10(a), if the Lead Borrower has given the Administrative Agent notice that in no event it intends to cure such breach, Default or Event of Default pursuant to a Cure Action, neither the Lenders nor the Administrative Agent shall exercise any such reduction of Consolidated Secured Debt be given effect rights or remedies under Article VII (or under any Loan Document) available during the Fiscal Quarter continuance of any breach, Default or Event of Default on the basis of any actual or purported failure to comply with regard Section 6.10(a) (provided, that during such time no Lender shall be required to which fund any Revolver Loans and the Specified Equity Contribution Issuing Bank shall not be required to issue any Letters of Credit) until such failure is made, and (g) upon not cured on or prior to the Administrative Agent’s receipt expiration of the notice of Borrower’s intent to make a Specified Equity Contribution and until ten (10) Business Days after the day on which the financial statements are required to be delivered for the applicable fiscal quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, neither the Administrative Agent nor any Lender shall accelerate the Finance Obligations or otherwise exercise any remedies available to it during the continuance of a Default or Event of Default under the Loan Documents, including any remedies pursuant to Section 8.02Day cure period referenced above.
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Samples: Credit Agreement (Ollie's Bargain Outlet Holdings, Inc.), Credit Agreement (Ollie's Bargain Outlet Holdings, Inc.)
Financial Covenant. The Borrower will not permit (a) At any time that Excess Global Availability is less than 10.0% of the Secured Leverage sum of (1) Aggregate Commitments and (2) the Revolving Credit Commitments (as defined in the CF Credit Agreement), the Fixed Charge Coverage Ratio at determined as of the end of any the fiscal quarter most recently ended for which the Administrative Agent has received financial statements in accordance with Section 6.01 hereof, shall be not less than 1.00 to 1.00 for the immediately preceding Test Period (the “Financial Covenant”).
(b) Notwithstanding anything to exceed the ratio set forth below: September 30contrary contained in Section 7.15(a), 2015 through September 30, 2017 3.00:1.00 December 31, 2017 through September 30, 2018 2.75:1.00 December 31, 2018 and thereafter 2.50:1.00 In in the event that the Borrower fails Borrowers fail to comply with satisfy the financial covenants set forth in this Section 7.10 as Financial Covenant at any time, Holdings shall have the right to issue any Qualified Equity Interests of Holdings for cash or otherwise receive cash contributions to the capital of Holdings after the last day of any the applicable fiscal quarter, any Net Cash Proceeds of quarter and through the issuance of Equity Interests or Equity Equivalents (other than Disqualified Capital Stock) received by the Borrower on or prior to the day date that is ten (10) no more than 10 Business Days after the day on date upon which financial statements are required to be delivered for in accordance with Section 6.01 hereof with regard to such Fiscal Quarter fiscal quarter, and, in each case, to contribute any such cash to the capital of the Parent Borrower (collectively, the “Cure Right”), and upon the receipt by the Parent Borrower of such cash (the “Cure Amount”) pursuant to Section 6.01(a) or 6.01(b), as the case may be, will, at exercise by Holdings of such Cure Right the irrevocable election of Borrower, Financial Covenant shall be included recalculated giving effect to an increase in Consolidated EBITDA in the calculation amount of the Cure Amount, it being understood Consolidated EBITDA for such fiscal quarter shall be increased solely for the purposes purpose of determining compliance with such covenants at whether the end of such fiscal quarter Financial Covenant shall have been satisfied and not for any subsequent period that includes such fiscal quarter other purpose under this Agreement; and
(any such equity contribution so included in c) Notwithstanding anything herein to the calculation of Consolidated EBITDA, a “Specified Equity Contribution”); provided that (a) notice of Borrower’s intent to make a Specified Equity Contribution shall be delivered no later than the tenth (10th) day following the date on which financial statements are required to be delivered for the applicable Fiscal Quarter pursuant to Section 6.01(a) or 6.01(b), as the case may becontrary, (bi) in each consecutive four fiscal four-fiscal-quarter period there will shall be at least two fiscal quarters in which no Specified Equity Contribution the Cure Right is madenot exercised, (cii) no more than four Cure Rights may be made during the amount term of any Specified Equity Contribution will this Credit Agreement, (iii) no Cure Amount shall be no greater than the amount required to cause the Borrower to be in compliance with such covenants, (d) all Specified Equity Contributions will be disregarded for purposes of satisfying the calculation of Consolidated EBITDA for all other purposes, including calculating basket levels, financial ratio determinations, pricing Financial Covenant in the applicable fiscal quarter and other items governed by reference to Consolidated EBITDA (other than for determining compliance with this Section 7.10), (eiv) there shall be no more than five (5) Specified Equity Contributions made pro forma or other reduction in the aggregate after the Closing Date, (f) any Term Loans voluntarily prepaid Indebtedness with the proceeds of Specified Equity Contributions in a manner permitted by this Agreement shall be deemed no longer outstanding any Cure Right for purposes of determining compliance with this Section 7.10; provided that the financial covenant for the fiscal quarter in no event shall any which such reduction of Consolidated Secured Debt be given effect during the Fiscal Quarter with regard to which the Specified Equity Contribution Cure Amount is made, and (g) upon the Administrative Agent’s receipt of the notice of Borrower’s intent to make a Specified Equity Contribution and until ten (10) Business Days after the day on which the financial statements are required to be delivered for the applicable fiscal quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, neither the Administrative Agent nor any Lender shall accelerate the Finance Obligations or otherwise exercise any remedies available to it during the continuance of a Default or Event of Default under the Loan Documents, including any remedies pursuant to Section 8.02.
Appears in 1 contract
Financial Covenant. (a) The Borrower will not permit Company and any Restricted Subsidiary shall not, on any date when Specified Availability is less than the Secured Leverage greater of (a) 10% of the Line Cap and (b) $45,000,00040,000,000 (the “FCCR Test Amount”) for two consecutive Business Days, have a Consolidated Fixed Charge Coverage Ratio of less than 1.0 to 1.0, tested for the four fiscal quarter period ending on the last day of the most recently ended fiscal quarter for which the Borrowers were required to deliver Section 9.01 Financials, and at the end of any each succeeding fiscal quarter thereafter until the date on which Specified Availability has exceeded the FCCR Test Period to exceed the ratio set forth below: September 30, 2015 through September 30, 2017 3.00:1.00 December 31, 2017 through September 30, 2018 2.75:1.00 December 31, 2018 and thereafter 2.50:1.00 In the event the Borrower fails to comply Amount for 21 consecutive days.
(b) For purposes of determining compliance with the financial covenants covenant set forth in this Section 7.10 as 10.11(a) above, cash equity contributions (which equity shall be common equity) made to the Company (which shall be contributed in cash to the common equity of the last day of any fiscal quarter, any Net Cash Proceeds Company) after the end of the issuance of Equity Interests or Equity Equivalents (other than Disqualified Capital Stock) received by the Borrower relevant fiscal quarter and on or prior to the day that is ten (10) 10 Business Days after the day on which Company is required to deliver financial statements are required to be delivered for such Fiscal Quarter pursuant to under Section 6.01(a9.01(a) or 6.01(b), (b) (such 10-Business Day periods being referred to herein as the case may be, “Interim Period”) will, at the irrevocable election request of Borrowerthe Company, be included in the calculation of Consolidated EBITDA for such fiscal quarter solely for the purposes of determining compliance with such covenants financial covenant at the end of such fiscal quarter and any applicable subsequent period that includes periods which include such fiscal quarter (any such equity contribution so included in the calculation of Consolidated EBITDA, a “Specified Equity Contribution”); provided that (a) notice of Borrower’s intent to make a Specified Equity Contribution shall Contributions may be delivered made no later more than two times in any twelve fiscal month period and no more than five times during the tenth (10th) day following the date on which financial statements are required to be delivered for the applicable Fiscal Quarter pursuant to Section 6.01(a) or 6.01(b), as the case may beterm of this Agreement, (b) in each consecutive four fiscal quarter period there will be at least two fiscal quarters in which no Specified Equity Contribution is made, (c) the amount of any Specified Equity Contribution will shall be no greater than the amount required to cause the Borrower Borrowers to be in pro forma compliance with such covenantsfinancial covenant, (c) the Borrowers shall not be permitted to borrow hereunder during the Interim Period until the relevant Specified Equity Contribution has been made, (d) all Specified Equity Contributions will shall be disregarded for purposes of determining any baskets calculated on the calculation basis of Consolidated EBITDA for all contained herein and in the other purposes, including calculating basket levels, financial ratio determinations, pricing Credit Documents and other items governed by reference to Consolidated EBITDA (other than for determining compliance with this Section 7.10), (e) there shall be no more than five (5) Specified Equity Contributions made pro forma or other reduction in the aggregate after the Closing Date, (f) any Term Loans voluntarily prepaid Indebtedness with the proceeds of any Specified Equity Contributions in a manner permitted by this Agreement shall be deemed no longer outstanding Contribution for purposes of determining compliance with this Section 7.10; provided that the financial covenant for the fiscal quarter in no event shall any which such reduction of Consolidated Secured Debt be given effect during the Fiscal Quarter with regard to which the Specified Equity Contribution is made, and (g) upon the Administrative Agent’s receipt of the notice of Borrower’s intent to make a Specified Equity Contribution and until ten (10) Business Days after the day on made or any applicable subsequent periods which the financial statements are required to be delivered for the applicable include such fiscal quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, neither the Administrative Agent nor any Lender shall accelerate the Finance Obligations or otherwise exercise any remedies available to it during the continuance of a Default or Event of Default under the Loan Documents, including any remedies pursuant to Section 8.02quarter.
Appears in 1 contract
Financial Covenant. The Borrower will not permit At any time an Extension of Credit is outstanding under the Secured Revolving Facility, maintain a Total Leverage Ratio at of less than or equal to 6.5:1.0. Notwithstanding the above, the parties hereto acknowledge and agree that, for purposes of all calculations made in determining compliance with this Section 5.9, (a) after consummation of any Permitted Acquisition, (i) income statement items and other balance sheet items (whether positive or negative) attributable to the Target acquired in such transaction shall be included in such calculations to the extent relating to such applicable period, subject to adjustments in accordance with Regulation S-X promulgated under the Securities Act or otherwise reasonably acceptable to the Company and the Administrative Agent, and (ii) Indebtedness of a Target which is retired in connection with a Permitted Acquisition shall be excluded from such calculations and deemed to have been retired as of the first day of such applicable period and (b) any cash equity contribution (which equity shall be common equity, Qualified Preferred Equity or other equity having terms reasonably satisfactory to the Administrative Agent) made to Holdco after the end of any Test Period to exceed the ratio set forth below: September 30, 2015 through September 30, 2017 3.00:1.00 December 31, 2017 through September 30, 2018 2.75:1.00 December 31, 2018 a fiscal quarter and thereafter 2.50:1.00 In the event the Borrower fails to comply with the financial covenants set forth in this Section 7.10 as of the last day of any fiscal quarter, any Net Cash Proceeds of the issuance of Equity Interests or Equity Equivalents (other than Disqualified Capital Stock) received by the Borrower on or prior to the day that is ten (10) Business Days after the day on which financial statements are required to be delivered for with respect to such Fiscal Quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, fiscal quarter will, at the irrevocable election request of Borrowerthe Company, be included in the calculation of Consolidated EBITDA for such fiscal quarter solely for the purposes of determining compliance with such covenants the financial covenant contained herein at the end of such fiscal quarter and any subsequent period that includes such fiscal quarter (any such equity contribution so included in the calculation of Consolidated EBITDAEBITDA or applied to reduce Consolidated Indebtedness, a “Specified Equity Contribution”); provided that (a) notice of Borrower’s intent to make a Specified Equity Contribution shall be delivered no later than the tenth (10th) day following the date on which financial statements are required to be delivered for the applicable Fiscal Quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, (bi) in each consecutive four fiscal quarter period period, there will shall be at least two one fiscal quarters quarter in respect of which no Specified Equity Contribution is made, (cii) in each eight fiscal quarter period, there shall be a period of at least four consecutive fiscal quarters in respect of which no Specified Equity Contribution is made, (iii) the amount of any Specified Equity Contribution will shall be no greater than the amount required to cause the Borrower Credit Parties to be in compliance with such covenantsthe financial covenant set forth above, (div) all a Specified Equity Contributions will Contribution shall only be disregarded for purposes included in the computation of the calculation of Consolidated EBITDA for all other purposes, including calculating basket levels, financial ratio determinations, pricing and other items governed by reference to Consolidated EBITDA (other than for determining compliance with this Section 7.10), (e) there shall be no more than five (5) Specified Equity Contributions made in the aggregate after the Closing Date, (f) any Term Loans voluntarily prepaid with the proceeds of Specified Equity Contributions in a manner permitted by this Agreement shall be deemed no longer outstanding covenant for purposes of determining compliance by the Credit Parties with this Section 7.10; provided that in no event shall 5.9 and not for any such reduction other purpose under this Agreement (including, without limitation, any determination of Consolidated Secured Debt be given effect during the Fiscal Quarter with regard to which the Specified Equity Contribution is made, Applicable Percentage) and (gv) upon any Consolidated Indebtedness repaid with the Administrative Agent’s receipt proceeds of the notice of Borrower’s intent to make a Specified Equity Contribution and until ten (10) Business Days after shall not be deemed repaid for purposes of calculating the day on which Total Leverage Ratio if, for purposes of calculating the Total Leverage Ratio, such Specified Equity Contribution has been included in the calculation of Consolidated EBITDA. Upon the making of a Specified Equity Contribution, the financial statements are required covenant in this Section 5.9 shall be recalculated giving effect to the increase in Consolidated EBITDA or reduction in Consolidated Indebtedness. If, after giving effect to such recalculation, Holdco is in compliance with the financial covenant, Holdco shall be delivered for deemed to have satisfied the applicable fiscal quarter pursuant requirements of the financial covenant as of the relevant date of determination with the same effect as though there had been no failure to Section 6.01(a) or 6.01(b), as the case may be, neither the Administrative Agent nor any Lender shall accelerate the Finance Obligations or otherwise exercise any remedies available to it during the continuance of a Default or Event of Default under the Loan Documents, including any remedies pursuant to Section 8.02comply therewith at such date.
Appears in 1 contract
Financial Covenant. The Borrower will not permit the Secured Leverage Ratio at the end of any Test Period to exceed the ratio set forth below: September 30, 2015 2016 through September March 31, 2017 4.00:1.00 June 30, 2017 3.00:1.00 through December 31, 2017 through September 303.75:1.00 March 31, 2018 2.75:1.00 through December 31, 2018 3.50:1.00 March 31, 2019 and thereafter 2.50:1.00 3.25:1.00 In the event the Borrower fails to comply with the financial covenants set forth in this Section 7.10 as of the last day of any fiscal quarter, any Net Cash Proceeds of the issuance of Equity Interests or Equity Equivalents (other than Disqualified Capital Stock) received by the Borrower on or prior to the day that is ten (10) Business Days after the day on which financial statements are required to be delivered for such Fiscal Quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, will, at the irrevocable election of Borrower, be included in the calculation of Consolidated EBITDA for such fiscal quarter solely for the purposes of determining compliance with such covenants at the end of such fiscal quarter and any subsequent period that includes such fiscal quarter (any such equity contribution so included in the calculation of Consolidated EBITDA, a “Specified Equity Contribution”); provided that (a) notice of Borrower’s intent to make a Specified Equity Contribution shall be delivered no later than the tenth (10th) day following the date on which financial statements are required to be delivered for the applicable Fiscal Quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, (b) in each consecutive four fiscal quarter period there will be at least two fiscal quarters in which no Specified Equity Contribution is made, (c) the amount of any Specified Equity Contribution will be no greater than the amount required to cause the Borrower to be in compliance with such covenants, (d) all Specified Equity Contributions will be disregarded for purposes of the calculation of Consolidated EBITDA for all other purposes, including calculating basket levels, financial ratio determinations, pricing and other items governed by reference to Consolidated EBITDA (other than for determining compliance with this Section 7.10), (e) there shall be no more than five (5) Specified Equity Contributions made in the aggregate after the Closing Date, (f) any Term Loans voluntarily prepaid with the proceeds of Specified Equity Contributions in a manner permitted by this Agreement shall be deemed no longer outstanding for purposes of determining compliance with this Section 7.10; provided that in no event shall any such reduction of Consolidated Secured Debt be given effect during the Fiscal Quarter with regard to which the Specified Equity Contribution is made, and (g) upon the Administrative Agent’s receipt of the notice of Borrower’s intent to make a Specified Equity Contribution and until ten (10) Business Days after the day on which the financial statements are required to be delivered for the applicable fiscal quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, neither the Administrative Agent nor any Lender shall accelerate the Finance Obligations or otherwise exercise any remedies available to it during the continuance of a Default or Event of Default under the Loan Documents, including any remedies pursuant to Section 8.02.
Appears in 1 contract
Financial Covenant. The Borrower will not permit At any time an Extension of Credit is outstanding under the Secured Revolving Facility, maintain a Total Leverage Ratio at of less than or equal to 6.5:1.0. Notwithstanding the above, the parties hereto acknowledge and agree that, for purposes of all calculations made in determining compliance with this Section 5.9, (a) after consummation of any Permitted Acquisition, (i) income statement items and other balance sheet items (whether positive or negative) attributable to the Target acquired in such transaction shall be included in such calculations to the extent relating to such applicable period, subject to adjustments in accordance with Regulation S-X promulgated under the Securities Act or otherwise reasonably acceptable to the Company and the Administrative AgentRequired Lenders, and (ii) Indebtedness of a Target which is retired in connection with a Permitted Acquisition shall be excluded from such calculations and deemed to have been retired as of the first day of such applicable period and (b) any cash equity contribution (which equity shall be common equity, Qualified Preferred Equity or other equity having terms reasonably satisfactory to the Administrative AgentRequired Lenders) made to Holdco after the end of any Test Period to exceed the ratio set forth below: September 30, 2015 through September 30, 2017 3.00:1.00 December 31, 2017 through September 30, 2018 2.75:1.00 December 31, 2018 a fiscal quarter and thereafter 2.50:1.00 In the event the Borrower fails to comply with the financial covenants set forth in this Section 7.10 as of the last day of any fiscal quarter, any Net Cash Proceeds of the issuance of Equity Interests or Equity Equivalents (other than Disqualified Capital Stock) received by the Borrower on or prior to the day that is ten (10) Business Days after the day on which financial statements are required to be delivered for with respect to such Fiscal Quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, fiscal quarter will, at the irrevocable election request of Borrowerthe Company, be included in the calculation of Consolidated EBITDA for such fiscal quarter solely for the purposes of determining compliance with such covenants the financial covenant contained herein at the end of such fiscal quarter and any subsequent period that includes such fiscal quarter (any such equity contribution so included in the calculation of Consolidated EBITDAEBITDA or applied to reduce Consolidated Indebtedness, a “Specified Equity Contribution”); provided that (a) notice of Borrower’s intent to make a Specified Equity Contribution shall be delivered no later than the tenth (10th) day following the date on which financial statements are required to be delivered for the applicable Fiscal Quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, (bi) in each consecutive four fiscal quarter period period, there will shall be at least two one fiscal quarters quarter in respect of which no Specified Equity Contribution is made, (cii) in each eight fiscal quarter period, there shall be a period of at least four consecutive fiscal quarters in respect of which no Specified Equity Contribution is made, (iii) the amount of any Specified Equity Contribution will shall be no greater than the amount required to cause the Borrower Credit Parties to be in compliance with such covenantsthe financial covenant set forth above, (div) all a Specified Equity Contributions will Contribution shall only be disregarded for purposes included in the computation of the calculation of Consolidated EBITDA for all other purposes, including calculating basket levels, financial ratio determinations, pricing and other items governed by reference to Consolidated EBITDA (other than for determining compliance with this Section 7.10), (e) there shall be no more than five (5) Specified Equity Contributions made in the aggregate after the Closing Date, (f) any Term Loans voluntarily prepaid with the proceeds of Specified Equity Contributions in a manner permitted by this Agreement shall be deemed no longer outstanding covenant for purposes of determining compliance by the Credit Parties with this Section 7.10; provided that in no event shall 5.9 and not for any such reduction other purpose under this Agreement (including, without limitation, any determination of Consolidated Secured Debt be given effect during the Fiscal Quarter with regard to which the Specified Equity Contribution is made, Applicable Percentage) and (gv) upon any Consolidated Indebtedness repaid with the Administrative Agent’s receipt proceeds of the notice of Borrower’s intent to make a Specified Equity Contribution and until ten (10) Business Days after shall not be deemed repaid for purposes of calculating the day on which Total Leverage Ratio if, for purposes of calculating the Total Leverage Ratio, such Specified Equity Contribution has been included in the calculation of Consolidated EBITDA. Upon the making of a Specified Equity Contribution, the financial statements are required covenant in this Section 5.9 shall be recalculated giving effect to the increase in Consolidated EBITDA or reduction in Consolidated Indebtedness. If, after giving effect to such recalculation, Holdco is in compliance with the financial covenant, Holdco shall be delivered for deemed to have satisfied the applicable fiscal quarter pursuant requirements of the financial covenant as of the relevant date of determination with the same effect as though there had been no failure to Section 6.01(a) or 6.01(b), as the case may be, neither the Administrative Agent nor any Lender shall accelerate the Finance Obligations or otherwise exercise any remedies available to it during the continuance of a Default or Event of Default under the Loan Documents, including any remedies pursuant to Section 8.02comply therewith at such date.
Appears in 1 contract
Samples: Agency Succession and Amendment Agreement (GateHouse Media, Inc.)
Financial Covenant. (a) The Borrower will Borrowers and their Restricted Subsidiaries shall, on any date when the sum of (x) Availability plus (y) the amount of Qualified Cash (up to $10,000,000) on such date (but not permit to exceed Availability on such date) is less than the Secured Leverage greater of (a) 10% of the Line Cap, and (b) $16,500,000 (the “FCCR Test Amount”), maintain an Consolidated Fixed Charge Coverage Ratio of at least 1.0 to 1.0, tested for the four fiscal quarter period ending on the last day of the most recently ended fiscal quarter for which the Borrowers were required to deliver financial statements to the Administrative Agent in accordance with Section 5.04 of this Agreement, and at the end of any Test Period each succeeding fiscal quarter thereafter until the date on which (x) Availability plus (y) the amount of Qualified Cash (up to $10,000,000) on such date (but not to exceed Availability on such date) has exceeded the ratio FCCR Test Amount for 30 consecutive days.
(b) Notwithstanding anything to contrary in this Agreement (including Article VII), upon an Event of Default as a result of the Borrowers’ failure to comply with Section 6.10(a) above, such Event of Default shall, subject to the limitations set forth below: September 30, 2015 through September 30, 2017 3.00:1.00 December 31, 2017 through September 30, 2018 2.75:1.00 December 31, 2018 be deemed cured ab initio and thereafter 2.50:1.00 In cease to exist in the event that, within 10 Business Days after the date on which the Borrowers were required to deliver financial statements in accordance with Section 6.10(a) for the month in which such Event of Default occurs, a cash equity capital contribution is made to the Lead Borrower fails (or otherwise receives an equity contribution in respect of the equity issued for such Cure Actions in exchange for Qualified Capital Stock). Each such equity contribution is referred to comply as “Cure Action.” The proceeds of any Cure Action may be included solely in the calculation of EBITDA (solely for purposes of calculating the ratio in Section 6.10(a) above, and not for any other purpose hereunder, and there shall be no pro forma or other reduction in Indebtedness with the financial covenants set forth proceeds of such Cure Action in this Section 7.10 connection with determining such calculation during the period in which such proceeds are included in EBITDA) at the request of the Lead Borrower as of if such proceeds were contributed on the last day of any the applicable fiscal quarter, any Net Cash Proceeds and must be sufficient (but may not be in excess of the issuance amount required) to cause Loan Parties to be in pro forma compliance with the financial covenant set forth in Section 6.10(a). No more than two Cure Actions may be taken in any 4 fiscal quarter period and no more than four Cure Actions may be taken during the term of Equity Interests this Agreement. If, after giving effect to the Cure Action, the Borrowers shall be in compliance with the requirements of the Consolidated Fixed Charge Coverage Ratio, the Borrowers shall be deemed to have satisfied the requirements of Section 6.10(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 Equity Equivalents Event of Default with respect to such Consolidated Fixed Charge Coverage Ratio that had occurred shall be deemed cured for purposes of this Agreement. To the extent a fiscal quarter for which such Consolidated Fixed Charge Coverage Ratio is initially recalculated as a result of such Cure Action is included in the calculation of the Consolidated Fixed Charge Coverage Ratio in a subsequent fiscal period, the results of the Cure Action shall be included in the amount of EBITDA for such fiscal quarter in such subsequent fiscal period. After the occurrence of the breach, Default or Event of Default resulting from a failure to comply with Section 6.10(a), if the Lead Borrower has given the Administrative Agent notice that it intends to cure such breach, Default or Event of Default pursuant to a Cure Action, neither the Lenders nor the Administrative Agent shall exercise any rights or remedies under Article VII (other than Disqualified Capital Stockor under any Loan Document) received by available during the Borrower continuance of any breach, Default or Event of Default on the basis of any actual or purported failure to comply with Section 6.10(a) until such failure is not cured on or prior to the day that is ten (10) Business Days after the day on which financial statements are required to be delivered for such Fiscal Quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, will, at the irrevocable election of Borrower, be included in the calculation of Consolidated EBITDA for such fiscal quarter solely for the purposes of determining compliance with such covenants at the end of such fiscal quarter and any subsequent period that includes such fiscal quarter (any such equity contribution so included in the calculation of Consolidated EBITDA, a “Specified Equity Contribution”); provided that (a) notice of Borrower’s intent to make a Specified Equity Contribution shall be delivered no later than the tenth (10th) day following the date on which financial statements are required to be delivered for the applicable Fiscal Quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, (b) in each consecutive four fiscal quarter period there will be at least two fiscal quarters in which no Specified Equity Contribution is made, (c) the amount of any Specified Equity Contribution will be no greater than the amount required to cause the Borrower to be in compliance with such covenants, (d) all Specified Equity Contributions will be disregarded for purposes expiration of the calculation of Consolidated EBITDA for all other purposes, including calculating basket levels, financial ratio determinations, pricing and other items governed by reference to Consolidated EBITDA (other than for determining compliance with this Section 7.10), (e) there shall be no more than five (5) Specified Equity Contributions made in the aggregate after the Closing Date, (f) any Term Loans voluntarily prepaid with the proceeds of Specified Equity Contributions in a manner permitted by this Agreement shall be deemed no longer outstanding for purposes of determining compliance with this Section 7.10; provided that in no event shall any such reduction of Consolidated Secured Debt be given effect during the Fiscal Quarter with regard to which the Specified Equity Contribution is made, and (g) upon the Administrative Agent’s receipt of the notice of Borrower’s intent to make a Specified Equity Contribution and until ten (10) 10 Business Days after the day on which the financial statements are required to be delivered for the applicable fiscal quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, neither the Administrative Agent nor any Lender shall accelerate the Finance Obligations or otherwise exercise any remedies available to it during the continuance of a Default or Event of Default under the Loan Documents, including any remedies pursuant to Section 8.02Day cure period referenced above.
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Financial Covenant. (a) The Borrower will not permit and its Restricted Subsidiaries shall, on any date when Specified Excess Availability is less than the Secured Leverage greater of (a) 10.0% of the Line Cap, and (b) $60,000,000 (the “FCCR Test Amount”), have a Consolidated Fixed Charge Coverage Ratio of at least 1.00 to 1.00, tested for the four fiscal quarter period ending on the last day of the most recently ended fiscal quarter for which the Borrower was required to deliver Section 9.01 Financials, and at the end of any each succeeding fiscal quarter thereafter until the date on which Specified Excess Availability has exceeded the FCCR Test Period to exceed the ratio set forth below: September 30, 2015 through September 30, 2017 3.00:1.00 December 31, 2017 through September 30, 2018 2.75:1.00 December 31, 2018 and thereafter 2.50:1.00 In the event the Borrower fails to comply Amount for 30 consecutive days.
(b) For purposes of determining compliance with the financial covenants covenant set forth in this Section 7.10 as 10.11(a) above, cash equity contributions (which equity shall be common equity or otherwise in a form reasonably acceptable to the Administrative Agent) made to Holdings (which shall be contributed in cash to the common equity of the last day of any fiscal quarter, any Net Cash Proceeds Borrower) after the end of the issuance of Equity Interests or Equity Equivalents (other than Disqualified Capital Stock) received by the Borrower relevant fiscal quarter and on or prior to the day that is ten (10) 10 Business Days after the day on which financial statements are required to be delivered under Section 9.01 for such Fiscal Quarter pursuant fiscal quarter, or with respect to the initial date the FCCR Test Amount is not exceeded, within 10 Business Days after the Borrower and its Restricted Subsidiaries become subject to testing the financial covenant under clause (a) of this Section 6.01(a) or 6.01(b), 10.11 (such 10-Business Day period being referred to herein as the case may be, “Interim Period”) will, at the irrevocable election request of the Borrower, be included in the calculation of Consolidated EBITDA for such fiscal quarter solely for the purposes of determining compliance with such covenants financial covenant at the end of such fiscal quarter and any applicable subsequent period that includes periods which include such fiscal quarter (any such equity contribution so included in the calculation of Consolidated EBITDA, a “Specified Equity Contribution”); provided that (a) notice of Borrower’s intent to make a Specified Equity Contribution shall Contributions may be delivered made no later more than two times in any twelve fiscal month period and no more than five times during the tenth (10th) day following the date on which financial statements are required to be delivered for the applicable Fiscal Quarter pursuant to Section 6.01(a) or 6.01(b), as the case may beterm of this Agreement, (b) in each consecutive four fiscal quarter period there will be at least two fiscal quarters in which no Specified Equity Contribution is made, (c) the amount of any Specified Equity Contribution will shall be no greater than the amount required to cause the Borrower to be in pro forma compliance with such covenantsfinancial covenant, (c) the Borrower shall not be permitted to borrow hereunder or request the issuance, amendment, modification, renewal or extension of a Letter of Credit (other than any amendment, modification, renewal or extension which does not increase the face amount thereof) during the Interim Period until the relevant Specified Equity Contribution has been made, (d) all Specified Equity Contributions will shall be disregarded for purposes of determining any baskets calculated on the calculation basis of Consolidated EBITDA for all contained herein and in the other purposes, including calculating basket levels, financial ratio determinations, pricing and other items governed by reference to Consolidated EBITDA (other than for determining compliance with this Section 7.10)Credit Documents, (e) there shall be no more than five (5) Specified Equity Contributions made pro forma in the aggregate after the Closing Date, (f) any Term Loans voluntarily prepaid Indebtedness with the proceeds of any Specified Equity Contributions in a manner permitted by this Agreement shall be deemed no longer outstanding Contribution for purposes of determining compliance with this Section 7.10; provided that in no event shall any such reduction of Consolidated Secured Debt be given effect during the Fiscal Quarter financial covenant for the fiscal quarter with regard respect to which the such Specified Equity Contribution is made, made and (gf) upon until the Administrative Agent’s receipt last Business Day of the notice of Borrower’s intent to make a Specified Equity Contribution and until ten (10) Business Days after the day on which the financial statements are required to be delivered for the applicable fiscal quarter pursuant to Section 6.01(a) or 6.01(b), as the case may beInterim Period, neither the Administrative Agent nor any Lender shall have any right to accelerate the Finance Obligations Loans or otherwise exercise terminate the Commitments, and none of the Administrative Agent nor any remedies Lender shall have any right to foreclose on or take possession of the Collateral or any other right or remedy under the Credit Documents that would be available to it during on the continuance basis of a Default or an Event of Default under resulting from the Loan Documents, including any remedies pursuant failure to comply with Section 8.0210.11(a).
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Samples: Revolving Credit Agreement (Custom Truck One Source, Inc.)
Financial Covenant. (a) The Lead Borrower will not permit and its Restricted Subsidiaries shall, on any date when Availability is less than the Secured Leverage greater of (a) 12.5% of the Aggregate Commitments, and (b) $10,000,00017,500,000 (the “FCCR Test Amount”), have a Consolidated Fixed Charge Coverage Ratio of at least 1.0 to 1.0, tested for the four fiscal quarter period ending on the last day of the most recently ended fiscal quarter for which the Lead Borrower was required to deliver Section 9.01 Financials, and at the end of any each succeeding fiscal quarter thereafter until the date on which Availability has exceeded the FCCR Test Period to exceed the ratio set forth below: September 30, 2015 through September 30, 2017 3.00:1.00 December 31, 2017 through September 30, 2018 2.75:1.00 December 31, 2018 and thereafter 2.50:1.00 In the event the Borrower fails to comply Amount for 30 consecutive days.
(b) For purposes of determining compliance with the financial covenants covenant set forth in this Section 7.10 as 10.11(a) above, cash equity contributions (which equity shall be common equity or otherwise in a form reasonably acceptable to the Administrative Agent) made to Holdings (which shall be contributed in cash to the common equity of the last day of any fiscal quarter, any Net Cash Proceeds Lead Borrower) after the end of the issuance of Equity Interests or Equity Equivalents (other than Disqualified Capital Stock) received by the Borrower relevant fiscal quarter and on or prior to the day that is ten (10) 10 Business Days after the day on which Lead Borrower and its Restricted Subsidiaries become subject to testing the financial statements are required to be delivered covenant under clause (a) of this Section 10.11 for such Fiscal Quarter pursuant fiscal quarter (such 10-Business Day period being referred to Section 6.01(a) or 6.01(b), herein as the case may be, “Interim Period”) will, at the irrevocable election request of the Lead Borrower, be included in the calculation of Consolidated EBITDA for such fiscal quarter solely for the purposes of determining compliance with such covenants financial covenant at the end of such fiscal quarter and any applicable subsequent period that includes periods which include such fiscal quarter (any such equity contribution so included in the calculation of Consolidated EBITDA, a “Specified Equity Contribution”); provided that (a) notice of Borrower’s intent to make a Specified Equity Contribution shall Contributions may be delivered made no later more than two times in any twelve fiscal month period and no more than five times during the tenth (10th) day following the date on which financial statements are required to be delivered for the applicable Fiscal Quarter pursuant to Section 6.01(a) or 6.01(b), as the case may beterm of this Agreement, (b) in each consecutive four fiscal quarter period there will be at least two fiscal quarters in which no Specified Equity Contribution is made, (c) the amount of any Specified Equity Contribution will shall be no greater than the amount required to cause the Borrower Borrowers to be in pro forma compliance with such covenantsfinancial covenant, (c) the Borrowers shall not be permitted to borrow hereunder during the Interim Period until the relevant Specified Equity Contribution has been made, (d) all Specified Equity Contributions will shall be disregarded for purposes of determining any baskets calculated on the calculation basis of Consolidated EBITDA for all contained herein and in the other purposes, including calculating basket levels, financial ratio determinations, pricing and other items governed by reference to Consolidated EBITDA (other than for determining compliance with this Section 7.10)Credit Documents, (e) there shall be no more than five (5) Specified Equity Contributions made pro forma or other reduction in the aggregate after the Closing Date, (f) any Term Loans voluntarily prepaid Indebtedness with the proceeds of any Specified Equity Contributions in a manner permitted by this Agreement shall be deemed no longer outstanding Contribution for purposes of determining compliance with this Section 7.10; provided that the financial covenant for the fiscal quarter in no event shall any which such reduction of Consolidated Secured Debt be given effect during the Fiscal Quarter with regard to which the Specified Equity Contribution is made, made and (gf) upon from the date of the Administrative Agent’s receipt of a written notice from the notice Lead Borrower that the Lead Borrower intends to exercise its cure rights under this Section 10.11(b) through the last Business Day of Borrower’s intent to make a Specified Equity Contribution and until ten (10) Business Days after the day on which the financial statements are required to be delivered for the applicable fiscal quarter pursuant to Section 6.01(a) or 6.01(b), as the case may beInterim Period, neither the Administrative Agent nor any Lender shall have any right to accelerate the Finance Obligations Loans or otherwise exercise terminate the Commitments, and none of the Administrative Agent nor any remedies Lender shall have any right to foreclose on or take possession of the Collateral or any other right or remedy under the Credit Documents that would be available to it during on the continuance basis of a Default or an Event of Default under resulting from the Loan Documents, including any remedies pursuant failure to comply with Section 8.0210.11(a).
Appears in 1 contract
Samples: Revolving Credit Agreement (PAE Inc)
Financial Covenant. 9.3.1 The Lead Borrower will not permit and its Restricted Subsidiaries shall, on any date when Liquidity Condition Availability is less than the Secured Leverage greater of (a) 12.5% of the Revolver Commitments, and (b) $13,750,000 (the “FCCR Test Amount”), maintain a Fixed Charge Coverage Ratio of at least 1.0 to 1.0, tested for the four Fiscal Quarter period ending on the last day of the most recently ended Fiscal Quarter for which the Borrowers were required to deliver financial statements to the Agent in accordance with Section 9.1.2(b) of this Agreement, and at the end of any each succeeding Fiscal Quarter thereafter until the date on which Availability has exceeded the FCCR Test Period Amount for 30 consecutive days.
9.3.2 Notwithstanding anything to exceed contrary in this Agreement (including Section 10), upon an Event of Default as a result of the ratio Lead Borrower’s failure to comply with Section 9.3.1 above, such Event of Default shall, subject to the limitations set forth below: September 30, 2015 through September 30, 2017 3.00:1.00 December 31, 2017 through September 30, 2018 2.75:1.00 December 31, 2018 be deemed cured ab initio and thereafter 2.50:1.00 In cease to exist in the event that, within 10 Business Days after the date on which the Lead Borrower fails was required to deliver financial statements in accordance with Section 9.3.1 for the month in which such Event of Default occurs, a cash equity capital contribution is made to the Lead Borrower (or otherwise receives an equity contribution in respect of the equity issued for such Cure Actions in exchange for Equity Interests other than Disqualified Equity interests). Each such equity contribution is referred to as “Cure Action”. The proceeds of any Cure Action may be included solely in the calculation of EBITDA (solely for purposes of calculating the ratio in Section 9.3.1 above, and not for any other purpose hereunder, and there shall be no pro forma or other reduction in Debt with the proceeds of such Cure Action in connection with determining such calculation during the period in which such proceeds are included in
3.1. No more than two Cure Actions may be taken in any four Fiscal Quarter period and no more than four Cure Actions may be taken after the Third Restatement Date. If, after giving effect to the Cure Action, the Lead Borrower shall be in compliance with the requirements of the Fixed Charge Coverage Ratio, the Lead Borrower shall be deemed to have satisfied the requirements of Section 9.3.1 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 Event of Default with respect to such Fixed Charge Coverage Ratio that had occurred shall be deemed cured for purposes of this Agreement. To the extent a Fiscal Quarter for which such Fixed Charge Coverage Ratio is initially recalculated as a result of such Cure Action is included in the calculation of the Fixed Charge Coverage Ratio in a subsequent fiscal period, the results of the Cure Action shall be included in the amount of EBITDA for such Fiscal Quarter in such subsequent fiscal period. After the occurrence of the breach, Default or Event of Default resulting from a failure to comply with Section 9.3.1, if the financial covenants set forth in this Lead Borrower has given the Agent notice that it intends to cure such breach, Default or Event of Default pursuant to a Cure Action, neither the Lenders nor the Agent shall exercise any rights or remedies under Section 7.10 as of 10 (or under any Loan Document) available during the last day continuance of any fiscal quarterbreach, Default or Event of Default on the basis of any Net Cash Proceeds of the issuance of Equity Interests actual or Equity Equivalents (other than Disqualified Capital Stock) received by the Borrower purported failure to comply with Section 9.3.1 until such failure is not cured on or prior to the day that is ten (10) Business Days after the day on which financial statements are required to be delivered for such Fiscal Quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, will, at the irrevocable election of Borrower, be included in the calculation of Consolidated EBITDA for such fiscal quarter solely for the purposes of determining compliance with such covenants at the end of such fiscal quarter and any subsequent period that includes such fiscal quarter (any such equity contribution so included in the calculation of Consolidated EBITDA, a “Specified Equity Contribution”); provided that (a) notice of Borrower’s intent to make a Specified Equity Contribution shall be delivered no later than the tenth (10th) day following the date on which financial statements are required to be delivered for the applicable Fiscal Quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, (b) in each consecutive four fiscal quarter period there will be at least two fiscal quarters in which no Specified Equity Contribution is made, (c) the amount of any Specified Equity Contribution will be no greater than the amount required to cause the Borrower to be in compliance with such covenants, (d) all Specified Equity Contributions will be disregarded for purposes expiration of the calculation of Consolidated EBITDA for all other purposes, including calculating basket levels, financial ratio determinations, pricing and other items governed by reference to Consolidated EBITDA (other than for determining compliance with this Section 7.10), (e) there shall be no more than five (5) Specified Equity Contributions made in the aggregate after the Closing Date, (f) any Term Loans voluntarily prepaid with the proceeds of Specified Equity Contributions in a manner permitted by this Agreement shall be deemed no longer outstanding for purposes of determining compliance with this Section 7.10; provided that in no event shall any such reduction of Consolidated Secured Debt be given effect during the Fiscal Quarter with regard to which the Specified Equity Contribution is made, and (g) upon the Administrative Agent’s receipt of the notice of Borrower’s intent to make a Specified Equity Contribution and until ten (10) 10 Business Days after the day on which the financial statements are required to be delivered for the applicable fiscal quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, neither the Administrative Agent nor any Lender shall accelerate the Finance Obligations or otherwise exercise any remedies available to it during the continuance of a Default or Event of Default under the Loan Documents, including any remedies pursuant to Section 8.02Day cure period referenced above.
Appears in 1 contract
Financial Covenant. (a) The Borrower will Borrowers and their Restricted Subsidiaries shall, on any date when the sum of (x) Availability plus (y) the amount of Qualified Cash (up to $5,000,000) on such date (but not permit to exceed Availability on such date) is less than the Secured Leverage greater of (a) 10% of the Line Cap, and (b) $10,000,000 (the “FCCR Test Amount”), maintain an Consolidated Fixed Charge Coverage Ratio of at least 1.0 to 1.0, tested for the four fiscal quarter period ending on the last day of the most recently ended fiscal quarter for which the Borrowers were required to deliver financial statements to the Administrative Agent in accordance with Section 5.04 of this Agreement, and at the end of any Test Period each succeeding fiscal quarter thereafter until the date on which (x) Availability plus (y) the amount of Qualified Cash (up to $5,000,000) on such date (but not to exceed Availability on such date) has exceeded the ratio FCCR Test Amount for 30 consecutive days.
(b) Notwithstanding anything to contrary in this Agreement (including Article VII), upon an Event of Default as a result of the Borrowers’ failure to comply with Section 6.10(a) above, such Event of Default shall, subject to the limitations set forth below: September 30, 2015 through September 30, 2017 3.00:1.00 December 31, 2017 through September 30, 2018 2.75:1.00 December 31, 2018 be deemed cured ab initio and thereafter 2.50:1.00 In cease to exist in the event that, within 10 Business Days after the date on which the Borrowers were required to deliver financial statements in accordance with Section 6.10(a) for the month in which such Event of Default occurs, a cash equity capital contribution is made to the Lead Borrower fails (or otherwise receives an equity contribution in respect of the equity issued for such Cure Actions in exchange for Qualified Capital Stock). Each such equity contribution is referred to comply as “Cure Action.” The proceeds of any Cure Action may be included solely in the calculation of EBITDA (solely for purposes of calculating the ratio in Section 6.10(a) above, and not for any other purpose hereunder, and there shall be no pro forma or other reduction in Indebtedness with the financial covenants set forth proceeds of such Cure Action in this Section 7.10 connection with determining such calculation during the period in which such proceeds are included in EBITDA) at the request of the Lead Borrower as of if such proceeds were contributed on the last day of any the applicable fiscal quarter, any Net Cash Proceeds and must be sufficient (but may not be in excess of the issuance amount required) to cause Loan Parties to be in pro forma compliance with the financial covenant set forth in Section 6.10(a). No more than two Cure Actions may be taken in any 4 fiscal quarter period and no more than four Cure Actions may be taken during the term of Equity Interests this Agreement. If, after giving effect to the Cure Action, the Borrowers shall be in compliance with the requirements of the Consolidated Fixed Charge Coverage Ratio, the Borrowers shall be deemed to have satisfied the requirements of Section 6.10(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 Equity Equivalents Event of Default with respect to such Consolidated Fixed Charge Coverage Ratio that had occurred shall be deemed cured for purposes of this Agreement. To the extent a fiscal quarter for which such Consolidated Fixed Charge Coverage Ratio is initially recalculated as a result of such Cure Action is included in the calculation of the Consolidated Fixed Charge Coverage Ratio in a subsequent fiscal period, the results of the Cure Action shall be included in the amount of EBITDA for such fiscal quarter in such subsequent fiscal period. After the occurrence of the breach, Default or Event of Default resulting from a failure to comply with Section 6.10(a), if the Lead Borrower has given the Administrative Agent notice that it intends to cure such breach, Default or Event of Default pursuant to a Cure Action, neither the Lenders nor the Administrative Agent shall exercise any rights or remedies under Article VII (other than Disqualified Capital Stockor under any Loan Document) received by available during the Borrower continuance of any breach, Default or Event of Default on the basis of any actual or purported failure to comply with Section 6.10(a) until such failure is not cured on or prior to the day that is ten (10) Business Days after the day on which financial statements are required to be delivered for such Fiscal Quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, will, at the irrevocable election of Borrower, be included in the calculation of Consolidated EBITDA for such fiscal quarter solely for the purposes of determining compliance with such covenants at the end of such fiscal quarter and any subsequent period that includes such fiscal quarter (any such equity contribution so included in the calculation of Consolidated EBITDA, a “Specified Equity Contribution”); provided that (a) notice of Borrower’s intent to make a Specified Equity Contribution shall be delivered no later than the tenth (10th) day following the date on which financial statements are required to be delivered for the applicable Fiscal Quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, (b) in each consecutive four fiscal quarter period there will be at least two fiscal quarters in which no Specified Equity Contribution is made, (c) the amount of any Specified Equity Contribution will be no greater than the amount required to cause the Borrower to be in compliance with such covenants, (d) all Specified Equity Contributions will be disregarded for purposes expiration of the calculation of Consolidated EBITDA for all other purposes, including calculating basket levels, financial ratio determinations, pricing and other items governed by reference to Consolidated EBITDA (other than for determining compliance with this Section 7.10), (e) there shall be no more than five (5) Specified Equity Contributions made in the aggregate after the Closing Date, (f) any Term Loans voluntarily prepaid with the proceeds of Specified Equity Contributions in a manner permitted by this Agreement shall be deemed no longer outstanding for purposes of determining compliance with this Section 7.10; provided that in no event shall any such reduction of Consolidated Secured Debt be given effect during the Fiscal Quarter with regard to which the Specified Equity Contribution is made, and (g) upon the Administrative Agent’s receipt of the notice of Borrower’s intent to make a Specified Equity Contribution and until ten (10) 10 Business Days after the day on which the financial statements are required to be delivered for the applicable fiscal quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, neither the Administrative Agent nor any Lender shall accelerate the Finance Obligations or otherwise exercise any remedies available to it during the continuance of a Default or Event of Default under the Loan Documents, including any remedies pursuant to Section 8.02Day cure period referenced above.
Appears in 1 contract
Financial Covenant. The Borrower will not (a) During the continuance of any Compliance Event, subject to clause (b) below, permit the Secured Leverage Consolidated Fixed Charge Coverage Ratio at to be less than 1.00:1.00, tested immediately upon the end occurrence of any Test Period to exceed the ratio set forth below: September 30, 2015 through September 30, 2017 3.00:1.00 December 31, 2017 through September 30, 2018 2.75:1.00 December 31, 2018 a Compliance Event and thereafter 2.50:1.00 In the event the Borrower fails to comply with the financial covenants set forth in this Section 7.10 as of the last day of the most recent Test Period during the continuance of a Compliance Event.
(b) Notwithstanding anything to the contrary contained in Article IX, in the event of any fiscal quarter, any Net Cash Proceeds Event of Default occurring as a result of a breach of the issuance covenant set forth in Section 8.18(a), until the expiration of Equity Interests or Equity Equivalents (other than Disqualified Capital Stock) received by the Borrower on or prior to the tenth day that is ten (10) Business Days after the day date on which the financial statements are required to be delivered for such Fiscal Quarter pursuant to Section 6.01(a7.1(a) or 6.01(b(b), as the case may beapplicable, will, at the irrevocable election of Borrower, be included in the calculation of Consolidated EBITDA for such with respect to any fiscal quarter solely for the purposes of determining compliance with such covenants at the end of such fiscal quarter and any subsequent period that includes such fiscal quarter hereunder, Intermediate Holdings may issue equity (any provided such equity contribution so included issuance does not result in a Change in Control and constitutes common equity or which is not Disqualified Stock) and contribute the calculation net cash proceeds received therefrom to the capital of Consolidated EBITDA, New Holdings as cash common equity (a “Specified Equity Contribution”)) in order to remediate any Event of Default that has occurred with respect to Section 8.18(a) for such fiscal quarter. Upon receipt of such Specified Equity Contribution in accordance with the immediately preceding sentence, the amount of the proceeds thereof shall, solely for the purposes (and subject to the limitations) hereinafter described in this Section 8.18(b), increase Consolidated EBITDA with respect to such applicable fiscal quarter (and any subsequent period of four consecutive fiscal quarters that includes such fiscal quarter) and if, after giving effect to such increase in Consolidated EBITDA, New Holdings and its Subsidiaries shall then be in compliance with the 127 requirements of Section 8.18(a), New Holdings shall be deemed to have satisfied the requirements set forth therein as of the relevant four fiscal quarter period with the same effect as though there had been no failure to comply therewith at such date, and the applicable breach or default that had occurred shall be deemed cured for purposes of this Agreement; provided that such net cash proceeds (ai) notice are actually received by New Holdings (through a capital contribution of Borrower’s intent such proceeds by Intermediate Holdings to make a Specified Equity Contribution shall be delivered New Holdings) no later than the tenth (10th) day following ten days after the date on which financial statements are required to be delivered with respect to such fiscal quarter hereunder and (ii) do not exceed the aggregate amount necessary to cure (by addition to Consolidated EBITDA) such Event of Default under Section 8.18(a) for the such period. The parties hereto acknowledge that a given Specified Equity Contribution may not be counted as having been made in more than one fiscal quarter. The parties hereby acknowledge that this Section 8.18(b) may not be relied on for purposes of calculating any financial ratios other than as applicable Fiscal Quarter pursuant to Section 6.01(a8.18(a) and shall not be included for purposes of determining pricing, fees or any financial ratio-based conditions (including, without limitation, compliance with any covenant or condition other than Section 8.18(a) itself which requires a determination of whether the financial covenant in Section 8.18(a) is satisfied, whether or not same would otherwise be applicable) or 6.01(b), as any baskets with respect to the case may be, covenants or conditions contained in this Agreement. There shall be no pro forma or other reduction in Indebtedness with the proceeds of any Specified Equity Contribution (bincluding by way of netting) for purposes of determining compliance with Section 8.18(a) in each consecutive four the fiscal quarter in which a Specified Equity Contribution is made; provided that such Specified Equity Contribution may reduce Indebtedness in a subsequent fiscal quarter.
(i) In each period of four consecutive fiscal quarters, there will shall be at least two fiscal quarters in which no Specified Equity Contribution cure set forth in Section 8.18(b) is made. In addition, any reduction in Indebtedness (cor increase in cash for netting purposes) with the amount proceeds of any Specified Equity Contribution will made pursuant to Section 8.18(b) shall be no greater than the amount required to cause the Borrower to be in compliance with such covenants, (d) all Specified Equity Contributions will be disregarded ignored for purposes of the calculation of Consolidated EBITDA for all other purposes, including calculating basket levels, financial ratio determinations, pricing and other items governed by reference to Consolidated EBITDA (other than for determining compliance with this the covenant set forth in Section 7.108.18(a), except for determinations, including increases in cash for netting purposes, made pursuant to Section 8.18(a) for fiscal quarters after the respective fiscal quarter in which such Event of Default is remediated by such Specified Equity Contribution.
(eii) there There shall be no more than five cures under Section 8.18(a) from the date hereof through the Latest Maturity Date.
(5iii) Specified Equity Contributions made in the aggregate after the Closing Date, (f) any Term Loans voluntarily prepaid with the proceeds of Specified Equity Contributions in a manner permitted by this Agreement shall be deemed no longer outstanding for purposes of determining compliance with this Section 7.10; provided that in no event shall any such reduction of Consolidated Secured Debt be given effect during the Fiscal Quarter with regard If notice has been delivered to which the Specified Equity Contribution is made, and (g) upon the Administrative Agent’s receipt Agent of the notice of Borrower’s intent to make a Specified Equity Contribution and until ten (10) Business Days after such notice to be delivered on or prior to the day date on which the applicable financial statements are required to be delivered for and containing reasonable detail on the applicable terms and conditions of the Specified Equity Contribution), then from the last day of the fiscal quarter pursuant related to Section 6.01(a) or 6.01(b)such cure notice until the required date for receipt of the Specified Equity Contribution, as the case may be, neither the Administrative Agent nor any Lender shall accelerate the Finance Obligations or otherwise exercise any remedies available to it during the continuance of a no Default or Event of Default shall have occurred under the Loan DocumentsDocuments with respect to any default under Section 8.18(a) for which such cure notice was delivered unless the ten day period set forth in clause (a) above has expired without the Specified Equity Contribution having been received; provided that until the occurrence of the satisfaction of the conditions in Section 6.2 and the receipt of such Specified Equity Contribution, including no Lender shall be obligated to make any remedies pursuant to Section 8.02Revolving Loan, no Swing Line Loans shall be made and no Issuing Bank shall issue any Letter of Credit.
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Financial Covenant. The Borrower will not permit Notwithstanding anything to the Secured Leverage Ratio at the end of any Test Period to exceed the ratio set forth below: September 30contrary contained in Section 8.01, 2015 through September 30, 2017 3.00:1.00 December 31, 2017 through September 30, 2018 2.75:1.00 December 31, 2018 and thereafter 2.50:1.00 In in the event that the Borrower fails Borrowers fail to comply with the requirements of the financial covenants set forth in this Section 7.10 7.07 as of the last day of any fiscal quarter for which such covenant is tested, until the expiration of the fifth Business Day following the Cure Specified Date for such fiscal quarter, any Net Cash Proceeds of the issuance of Equity Interests or Equity Equivalents Borrowers shall have the right to give written notice (other than Disqualified Capital Stock) received by the Borrower “Cure Notice”), on or prior to the day that is ten fifth Business Day following such Cure Specified Date, to the Administrative Agent of the intent of the direct parent company of any Borrower to make cash common equity contributions to the capital of such Borrower (10the “Cure Right”), and, upon contribution of such cash to such Borrower (the “Cure Amount”) Business Days after the day on which financial statements are required to be delivered for such Fiscal Quarter pursuant to the exercise of the Cure Right, which exercise shall be made on or before the tenth Business Day following such Cure Specified Date, the covenants set forth in Section 6.01(a7.07 shall be automatically recalculated giving effect to the following adjustments on a pro forma basis:
(i) or 6.01(b), as the case may be, will, at the irrevocable election of Borrower, Combined EBITDA shall be included in the calculation of Consolidated EBITDA for increased with respect to such fiscal quarter solely for the purposes of determining compliance with such covenants at the end of such applicable fiscal quarter and any subsequent period Testing Period that includes contains such fiscal quarter (any such equity contribution so included in the calculation of Consolidated EBITDAquarter, a “Specified Equity Contribution”); provided that (a) notice of Borrower’s intent to make a Specified Equity Contribution shall be delivered no later than the tenth (10th) day following the date on which financial statements are required to be delivered solely for the applicable Fiscal Quarter pursuant purpose of measuring the financial covenants set forth in Section 7.07 and not for any other purpose under this Agreement, by an amount equal to Section 6.01(athe Cure Amount; and
(ii) or 6.01(b)if, as after giving effect to the case may beforegoing recalculations, (b) in each consecutive four fiscal quarter period there will be at least two fiscal quarters in which no Specified Equity Contribution is made, (c) the amount of any Specified Equity Contribution will be no greater than the amount required to cause the Borrower to Borrowers shall then be in compliance with such covenants, (d) all Specified Equity Contributions will be disregarded for purposes the requirements of the calculation of Consolidated EBITDA for all other purposesfinancial covenants set forth in Section 7.07, including calculating basket levels, financial ratio determinations, pricing and other items governed by reference to Consolidated EBITDA (other than for determining compliance with this Section 7.10), (e) there shall be no more than five (5) Specified Equity Contributions made in the aggregate after the Closing Date, (f) any Term Loans voluntarily prepaid with the proceeds of Specified Equity Contributions in a manner permitted by this Agreement Borrowers shall be deemed to have satisfied the requirements of such financial covenants as of the relevant date of determination with the same effect as though there had been no longer outstanding for purposes of determining compliance with this Section 7.10; provided that in no event shall any failure to comply therewith at such reduction of Consolidated Secured Debt be given effect during the Fiscal Quarter with regard to which the Specified Equity Contribution is madedate, and (g) upon the Administrative Agent’s receipt of the notice of Borrower’s intent to make a Specified Equity Contribution and until ten (10) Business Days after the day on which the financial statements are required to be delivered for the applicable fiscal quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, neither the Administrative Agent nor any Lender shall accelerate the Finance Obligations or otherwise exercise any remedies available to it during the continuance of a Default breach or Event of Default under the Loan Documents, including any remedies pursuant with respect to Section 8.02such financial covenants that had occurred shall be deemed cured for purposes of this Agreement.
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Financial Covenant. The Borrower will not permit the Secured Leverage Ratio at the end of any Test Period to exceed the ratio set forth below: September 30, 2015 through September 30, 2017 3.00:1.00 December 31, 2017 through September 30, 2018 2.75:1.00 December 31, 2018 and thereafter 2.50:1.00 (a) In the event that, at any time, the Excess Availability plus Eligible Cash Collateral (without duplication of Borrowing Base Eligible Cash Collateral) as of such date (after giving effect to the funding of all Revolving Credit Advances and the issuance of all Letter of Credit Advances to be funded or issued as of such date) is less than 10% of the Borrowing Base, then the Borrower fails shall be required to comply with the financial covenants set forth in this Section 7.10 maintain, as of the last day of any fiscal quarterMeasurement Period, a Fixed Charge Coverage Ratio of at least 1.0:1.0 until Excess Availability plus Eligible Cash Collateral (without duplication of Borrowing Base Eligible Cash Collateral) shall be greater than 10% of the Borrowing Base for a period of fifteen (15) consecutive days.
(b) For purposes of determining compliance with the foregoing clause (a), any Net Cash Proceeds of the issuance of Equity Interests equity investment made directly or Equity Equivalents (other than Disqualified Capital Stock) received by indirectly to the Borrower after the Effective Date and on or prior to the day that is ten (10) Business Days after the day on which financial statements are required to be delivered for such a Fiscal Quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, willshall, at the irrevocable election request of Borrowerthe Borrower and in the event that the proceeds thereof have been contributed directly or indirectly to the Borrower as common equity, Permitted Preferred Stock or other equity on terms and conditions reasonably acceptable to the Administrative Agent, be included in the calculation of Consolidated EBITDA for such fiscal quarter solely for the purposes purpose of determining compliance with such covenants covenant at the end of such fiscal quarter Fiscal Quarter and any applicable subsequent period that includes such fiscal quarter periods (any such equity contribution so included in the calculation of Consolidated EBITDA, a “Specified Equity Contribution”); provided that (a) notice of Borrower’s intent to make a Specified Equity Contribution shall be delivered no later than the tenth (10th) day following the date on which financial statements are required to be delivered for the applicable Fiscal Quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, (bi) in each four consecutive four fiscal quarter Fiscal Quarter period there will shall be at least two fiscal quarters one Fiscal Quarter in which no Specified Equity Contribution is made, made and (cii) the amount of any Specified Equity Contribution will shall be no greater than the amount required to cause the Borrower to be in compliance with such covenants, (d) all Specified Equity Contributions will be disregarded for purposes of the calculation of Consolidated EBITDA for all other purposes, including calculating basket levels, financial ratio determinations, pricing and other items governed by reference to Consolidated EBITDA (other than for determining compliance with this Section 7.10), (e) there shall be no more than five (5) Specified Equity Contributions made in the aggregate after the Closing Date, (f) any Term Loans voluntarily prepaid with the proceeds of Specified Equity Contributions in a manner permitted by this Agreement shall be deemed no longer outstanding for purposes of determining compliance with this Section 7.10; provided that in no event shall any such reduction of Consolidated Secured Debt be given effect during the Fiscal Quarter with regard to which the Specified Equity Contribution is made, and (g) upon the Administrative Agent’s receipt of the notice of Borrower’s intent to make a Specified Equity Contribution and until ten (10) Business Days after the day on which the financial statements are required to be delivered for the applicable fiscal quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, neither the Administrative Agent nor any Lender shall accelerate the Finance Obligations or otherwise exercise any remedies available to it during the continuance of a Default or Event of Default under the Loan Documents, including any remedies pursuant to Section 8.02Fixed Charge Coverage Ratio.
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Financial Covenant. (a) The Borrower will not permit Company and any Restricted Subsidiary shall not, on any date when Availability is less than the Secured Leverage greater of (a) 10% of the Line Cap, and (b) $50,000,000 (the “FCCR Test Amount”) for two consecutive Business Days, have a Consolidated Fixed Charge Coverage Ratio of less than 1.0 to 1.0, tested for the four fiscal quarter period ending on the last day of the most recently ended fiscal quarter for which the Borrowers were required to deliver Section 9.01 Financials, and at the end of any each succeeding fiscal quarter thereafter until the date on which Availability has exceeded the FCCR Test Period to exceed the ratio set forth below: September 30, 2015 through September 30, 2017 3.00:1.00 December 31, 2017 through September 30, 2018 2.75:1.00 December 31, 2018 and thereafter 2.50:1.00 In the event the Borrower fails to comply Amount for 21 consecutive days.
(b) For purposes of determining compliance with the financial covenants covenant set forth in this Section 7.10 as 10.11(a) above, cash equity contributions (which equity shall be common equity) made to the Company (which shall be contributed in cash to the common equity of the last day of any fiscal quarter, any Net Cash Proceeds Company) after the end of the issuance of Equity Interests or Equity Equivalents (other than Disqualified Capital Stock) received by the Borrower relevant fiscal quarter and on or prior to the day that is ten (10) 10 Business Days after the day on which Company is required to deliver financial statements are required to be delivered for such Fiscal Quarter pursuant to under Section 6.01(a9.01(a) or 6.01(b), (b) (such 10-Business Day periods being referred to herein as the case may be, “Interim Period”) will, at the irrevocable election request of Borrowerthe Company, be included in the calculation of Consolidated EBITDA for such fiscal quarter solely for the purposes of determining compliance with such covenants financial covenant at the end of such fiscal quarter and any applicable subsequent period that includes periods which include such fiscal quarter (any such equity contribution so included in the calculation of Consolidated EBITDA, a “Specified Equity Contribution”); provided that (a) notice of Borrower’s intent to make a Specified Equity Contribution shall Contributions may be delivered made no later more than two times in any twelve fiscal month period and no more than five times during the tenth (10th) day following the date on which financial statements are required to be delivered for the applicable Fiscal Quarter pursuant to Section 6.01(a) or 6.01(b), as the case may beterm of this Agreement, (b) in each consecutive four fiscal quarter period there will be at least two fiscal quarters in which no Specified Equity Contribution is made, (c) the amount of any Specified Equity Contribution will shall be no greater than the amount required to cause the Borrower Borrowers to be in pro forma compliance with such covenantsfinancial covenant, (c) the Borrowers shall not be permitted to borrow hereunder during the Interim Period until the relevant Specified Equity Contribution has been made, (d) all Specified Equity Contributions will shall be disregarded for purposes of determining any baskets calculated on the calculation basis of Consolidated EBITDA for all contained herein and in the other purposes, including calculating basket levels, financial ratio determinations, pricing Credit Documents and other items governed by reference to Consolidated EBITDA (other than for determining compliance with this Section 7.10), (e) there shall be no more than five (5) Specified Equity Contributions made pro forma or other reduction in the aggregate after the Closing Date, (f) any Term Loans voluntarily prepaid Indebtedness with the proceeds of any Specified Equity Contributions in a manner permitted by this Agreement shall be deemed no longer outstanding Contribution for purposes of determining compliance with this Section 7.10; provided that the financial covenant for the fiscal quarter in no event shall any which such reduction of Consolidated Secured Debt be given effect during the Fiscal Quarter with regard to which the Specified Equity Contribution is made, and (g) upon the Administrative Agent’s receipt of the notice of Borrower’s intent to make a Specified Equity Contribution and until ten (10) Business Days after the day on made or any applicable subsequent periods which the financial statements are required to be delivered for the applicable include such fiscal quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, neither the Administrative Agent nor any Lender shall accelerate the Finance Obligations or otherwise exercise any remedies available to it during the continuance of a Default or Event of Default under the Loan Documents, including any remedies pursuant to Section 8.02quarter.
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Financial Covenant. (a) The Borrower will Borrowers and their Restricted Subsidiaries shall, on any date when the sum of (x) Availability plus (y) the amount of Qualified Cash (up to $5,000,000) on such date (but not permit to exceed Availability on such date) is less than the Secured Leverage greater of (a) 10% of the Line Cap, and (b) $10,000,000 (the “FCCR Test Amount”), maintain an Consolidated Fixed Charge Coverage Ratio of at least 1.0 to 1.0, tested for the four fiscal quarter period ending on the last day of the most recently ended fiscal quarter for which the Borrowers were required to deliver financial statements to the Administrative Agent in accordance with Section 5.04 of this Agreement, and at the end of any Test Period each succeeding fiscal quarter thereafter until the date on which (x) Availability plus (y) the amount of Qualified Cash (up to $5,000,000) on such date (but not to exceed Availability on such date) has exceeded the ratio FCCR Test Amount for 30 consecutive days.
(b) Notwithstanding anything to contrary in this Agreement (including Article VII), upon an Event of Default as a result of the Borrowers’ failure to comply with Section 6.10(a) above, such Event of Default shall, subject to the limitations set forth below: September 30, 2015 through September 30, 2017 3.00:1.00 December 31, 2017 through September 30, 2018 2.75:1.00 December 31, 2018 be deemed cured ab initio and thereafter 2.50:1.00 In cease to exist in the event that, within 10 Business Days after the date on which the Borrowers were required to deliver financial statements in accordance with Section 6.10(a) for the month in which such Event of Default occurs, a cash equity capital contribution is made to the Lead Borrower fails (or otherwise receives an equity contribution in respect of the equity issued for such Cure Actions in exchange for Qualified Capital Stock). Each such equity contribution is referred to comply as “Cure Action.” The proceeds of any Cure Action may be included solely in the calculation of EBITDA (solely for purposes of calculating the ratio in Section 6.10(a) above, and not for any other purpose hereunder, and there shall be no pro forma or other reduction in Debt with the financial covenants set forth proceeds of such Cure Action in this Section 7.10 connection with determining such calculation during the period in which such proceeds are included in EBITDA) at the request of the Lead Borrower as of if such proceeds were contributed on the last day of any the applicable fiscal quarter, any Net Cash Proceeds and must be sufficient (but may not be in excess of the issuance amount required) to cause Loan Parties to be in pro forma compliance with the financial covenant set forth in Section 6.10(a). No more than two Cure Actions may be taken in any 4 fiscal quarter period and no more than four Cure Actions may be taken during the term of Equity Interests this Agreement. If, after giving effect to the Cure Action, the Borrowers shall be in compliance with the requirements of the Consolidated Fixed Charge Coverage Ratio, the Borrowers shall be deemed to have satisfied the requirements of Section 6.10(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 Equity Equivalents Event of Default with respect to such Consolidated Fixed Charge Coverage Ratio that had occurred shall be deemed cured for purposes of this Agreement. To the extent a fiscal quarter for which such Fixed Charge Coverage Ratio is initially recalculated as a result of such Cure Action is included in the calculation of the Fixed Charge Coverage Ratio in a subsequent fiscal period, the results of the Cure Action shall be included in the amount of EBITDA for such fiscal quarter in such subsequent fiscal period. After the occurrence of the breach, Default or Event of Default resulting from a failure to comply with Section 6.10(a), if the Lead Borrower has given the Administrative Agent notice that it intends to cure such breach, Default or Event of Default pursuant to a Cure Action, neither the Lenders nor the Administrative Agent shall exercise any rights or remedies under Article VII (other than Disqualified Capital Stockor under any Loan Document) received by available during the Borrower continuance of any breach, Default or Event of Default on the basis of any actual or purported failure to comply with Section 6.10(a) until such failure is not cured on or prior to the day that is ten (10) Business Days after the day on which financial statements are required to be delivered for such Fiscal Quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, will, at the irrevocable election of Borrower, be included in the calculation of Consolidated EBITDA for such fiscal quarter solely for the purposes of determining compliance with such covenants at the end of such fiscal quarter and any subsequent period that includes such fiscal quarter (any such equity contribution so included in the calculation of Consolidated EBITDA, a “Specified Equity Contribution”); provided that (a) notice of Borrower’s intent to make a Specified Equity Contribution shall be delivered no later than the tenth (10th) day following the date on which financial statements are required to be delivered for the applicable Fiscal Quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, (b) in each consecutive four fiscal quarter period there will be at least two fiscal quarters in which no Specified Equity Contribution is made, (c) the amount of any Specified Equity Contribution will be no greater than the amount required to cause the Borrower to be in compliance with such covenants, (d) all Specified Equity Contributions will be disregarded for purposes expiration of the calculation of Consolidated EBITDA for all other purposes, including calculating basket levels, financial ratio determinations, pricing and other items governed by reference to Consolidated EBITDA (other than for determining compliance with this Section 7.10), (e) there shall be no more than five (5) Specified Equity Contributions made in the aggregate after the Closing Date, (f) any Term Loans voluntarily prepaid with the proceeds of Specified Equity Contributions in a manner permitted by this Agreement shall be deemed no longer outstanding for purposes of determining compliance with this Section 7.10; provided that in no event shall any such reduction of Consolidated Secured Debt be given effect during the Fiscal Quarter with regard to which the Specified Equity Contribution is made, and (g) upon the Administrative Agent’s receipt of the notice of Borrower’s intent to make a Specified Equity Contribution and until ten (10) 10 Business Days after the day on which the financial statements are required to be delivered for the applicable fiscal quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, neither the Administrative Agent nor any Lender shall accelerate the Finance Obligations or otherwise exercise any remedies available to it during the continuance of a Default or Event of Default under the Loan Documents, including any remedies pursuant to Section 8.02Day cure period referenced above.
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Financial Covenant. (a) The Borrower Company will not permit the Secured Leverage Consolidated Interest Coverage Ratio at as of the end last day of any Test Period to exceed be less than 2.00 to 1.00.
(b) The Company will not permit the ratio set forth below: September 30Consolidated First Lien Net Leverage Ratio as of the last day of any Test Period to be greater than the Applicable Financial Covenant Leverage Ratio Level; provided that, 2015 through September 30, 2017 3.00:1.00 December 31, 2017 through September 30, 2018 2.75:1.00 December 31, 2018 and thereafter 2.50:1.00 In in the event the Borrower fails Company consummates a Qualified Acquisition, the Company may elect (a “Qualified Acquisition Election”) upon notice to comply the Administrative Agent (which Qualified Acquisition Election may be made (x) at any time on or prior to the date that the next Compliance Certificate is delivered pursuant to Section 6.02(a) following the consummation of such Qualified Acquisition or (y) in such Compliance Certificate; provided that no Qualified Acquisition Election may be made for any purposes hereunder in respect of any Qualified Acquisition that is consummated after June 30, 2020 and on or prior to June 30, 2021) that the Applicable Financial Covenant Leverage Ratio Level be increased by (and, subject to this proviso to Section 7.11(b), the Applicable Financial Covenant Leverage Ratio Level shall be increased by) (i) with respect to the financial covenants set forth last day of the fiscal quarter in which such Qualified Acquisition is consummated and with respect to the last day of each of the next succeeding three (3) fiscal quarters, 0.50:1.00 and (ii) with respect to the last day of the fiscal quarter following the first applicable anniversary of the consummation of such Qualified Acquisition and thereafter, the applicable Applicable Financial Covenant Leverage Ratio Level without giving effect to any such increase in clause (i). The Company may make a Qualified Acquisition Election no more than once during the life of this Agreement. Notwithstanding anything to the contrary in this Agreement or any other Loan Document, the requirements of this Section 7.10 7.11(b) shall not apply for any Test Period during the Waiver Period.
(c) (i) The Company will not permit Liquidity as of the last day of any fiscal quarterquarter during the Waiver Period (each such day, any Net Cash Proceeds a “Liquidity Test Date”) to be less than $175,000,000 and (ii) within five (5) Business Days after each Liquidity Test Date, the Company shall deliver to the Administrative Agent a certificate of a Responsible Officer of the issuance Company setting forth the computations necessary to determine whether the Company is in compliance with the covenant set forth in Section 7.11(c)(i) as of Equity Interests or Equity Equivalents (other than Disqualified Capital Stock) received by such Liquidity Test Date; provided that, during the Borrower period commencing on or prior to the day that is a Liquidity Test Date and ending ten (10) Business Days after such Liquidity Test Date, HGVI may make a Specified Equity Contribution to Holdings (a “Designated Liquidity Equity Contribution”) and the day on which financial statements are required amount of the net cash proceeds thereof shall solely be deemed to be delivered for such Fiscal Quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, will, at the irrevocable election of Borrower, be included in the calculation of Consolidated EBITDA for such fiscal quarter solely increase Liquidity for the purposes of determining compliance with such covenants at the end Section 7.11(c)(i) as of such fiscal quarter and any subsequent period Liquidity Test Date; provided, further, that includes such fiscal quarter net cash proceeds (any i) are actually received by the Company as cash common equity (including through capital contribution of such equity contribution so included in net cash proceeds to the calculation of Consolidated EBITDA, a “Specified Equity Contribution”); provided that (aCompany) notice of Borrower’s intent to make a Specified Equity Contribution shall be delivered no later than the tenth (10th) day following the date on which financial statements are required to be delivered for the applicable Fiscal Quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, (b) in each consecutive four fiscal quarter period there will be at least two fiscal quarters in which no Specified Equity Contribution is made, (c) the amount of any Specified Equity Contribution will be no greater than the amount required to cause the Borrower to be in compliance with such covenants, (d) all Specified Equity Contributions will be disregarded for purposes of the calculation of Consolidated EBITDA for all other purposes, including calculating basket levels, financial ratio determinations, pricing and other items governed by reference to Consolidated EBITDA (other than for determining compliance with this Section 7.10), (e) there shall be no more than five (5) Specified Equity Contributions made in the aggregate after the Closing Date, (f) any Term Loans voluntarily prepaid with the proceeds of Specified Equity Contributions in a manner permitted by this Agreement shall be deemed no longer outstanding for purposes of determining compliance with this Section 7.10; provided that in no event shall any such reduction of Consolidated Secured Debt be given effect during the Fiscal Quarter with regard to which the Specified Equity Contribution is made, period commencing on such Liquidity Test Date and (g) upon the Administrative Agent’s receipt of the notice of Borrower’s intent to make a Specified Equity Contribution and until ending ten (10) Business Days after such Liquidity Test Date and (ii) are Not Otherwise Applied. The parties hereby acknowledge that this Section 7.11(c) may not be relied on for purposes of calculating any financial ratios and shall not result in any adjustment to any baskets or other amounts other than the day on which the financial statements are required to be delivered amount of Liquidity for the applicable fiscal quarter pursuant to purpose of this Section 6.01(a) or 6.01(b7.11(c), as the case may be, neither the Administrative Agent nor any Lender shall accelerate the Finance Obligations or otherwise exercise any remedies available to it during the continuance of a Default or Event of Default under the Loan Documents, including any remedies pursuant to Section 8.02.
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Financial Covenant. The Borrower will not (b) During the continuance of any Compliance Event, subject to clause (b) below, permit the Secured Leverage Consolidated Fixed Charge Coverage Ratio at to be less than 1.00:1.00, tested immediately upon the end occurrence of any Test Period to exceed the ratio set forth below: September 30, 2015 through September 30, 2017 3.00:1.00 December 31, 2017 through September 30, 2018 2.75:1.00 December 31, 2018 a Compliance Event and thereafter 2.50:1.00 In the event the Borrower fails to comply with the financial covenants set forth in this Section 7.10 as of the last day of the most recent Test Period during the continuance of a Compliance Event.
(c) Notwithstanding anything to the contrary contained in Section 9, in the event of any fiscal quarter, any Net Cash Proceeds Event of Default occurring as a result of a breach of the issuance covenant set forth in Section 8.18(a), until the expiration of Equity Interests or Equity Equivalents (other than Disqualified Capital Stock) received by the Borrower on or prior to the tenth day that is ten (10) Business Days after the day date on which the financial statements are required to be delivered for such Fiscal Quarter pursuant to Section 6.01(a7.1(a) or 6.01(b(b), as the case may beapplicable, will, at the irrevocable election of Borrower, be included in the calculation of Consolidated EBITDA for such with respect to any fiscal quarter solely for the purposes of determining compliance with such covenants at the end of such fiscal quarter and any subsequent period that includes such fiscal quarter hereunder, Intermediate Holdings may issue equity (any provided such equity contribution so included issuance does not result in a Change in Control and constitutes common equity or which is not Disqualified Stock) and contribute the calculation net cash proceeds received therefrom to the capital of Consolidated EBITDA, New Holdings as cash common equity (a “Specified Equity Contribution”)) in order to remediate any Event of Default that has occurred with respect to Section 8.18(a) for such fiscal quarter. Upon receipt of such Specified Equity Contribution in accordance with the immediately preceding sentence, the amount of the proceeds thereof shall, solely for the purposes (and subject to the limitations) hereinafter described in this Section 8.18(b), increase Consolidated EBITDA with respect to such applicable fiscal quarter (and any subsequent period of four consecutive fiscal quarters that includes such fiscal quarter) and if, after giving effect to such increase in Consolidated EBITDA, New Holdings and its Subsidiaries shall then be in compliance with the requirements of Section 8.18(a), New Holdings shall be deemed to have satisfied the requirements set forth therein as of the relevant four fiscal quarter period with the same effect as though there had been no failure to comply therewith at such date, and the applicable breach or default that had occurred shall be deemed cured for purposes of this Agreement; provided that such net cash proceeds (ai) notice are actually received by New Holdings (through a capital contribution of Borrower’s intent such proceeds by Intermediate Holdings to make a Specified Equity Contribution shall be delivered New Holdings) no later than the tenth (10th) day following ten days after the date on which financial statements are required to be delivered with respect to such fiscal quarter hereunder and (ii) do not exceed the aggregate amount necessary to cure (by addition to Consolidated EBITDA) such Event of Default under Section 8.18(a) for the such period. The parties hereto acknowledge that a given Specified Equity Contribution may not be counted as having been made in more than one fiscal quarter. The parties hereby acknowledge that this Section 8.18(b) may not be relied on for purposes of calculating any financial ratios other than as applicable Fiscal Quarter pursuant to Section 6.01(a8.18(a) and shall not be included for purposes of determining pricing, fees or any financial ratio-based conditions (including, without limitation, compliance with any covenant or condition other than Section 8.18(a) itself which requires a determination of whether the financial covenant in Section 8.18(a) is satisfied, whether or not same would otherwise be applicable) or 6.01(b), as any baskets with respect to the case may be, covenants or conditions contained in this Agreement. There shall be no pro forma or other reduction in Indebtedness with the proceeds of any Specified Equity Contribution (bincluding by way of netting) for purposes of determining compliance with Section 8.18(a) in each consecutive four the 127 AMERICAS 94977503 fiscal quarter in which a Specified Equity Contribution is made; provided that such Specified Equity Contribution may reduce Indebtedness in a subsequent fiscal quarter.
(i) In each period of four consecutive fiscal quarters, there will shall be at least two fiscal quarters in which no Specified Equity Contribution cure set forth in Section 8.18(b) is made. In addition, any reduction in Indebtedness (cor increase in cash for netting purposes) with the amount proceeds of any Specified Equity Contribution will made pursuant to Section 8.18(b) shall be no greater than the amount required to cause the Borrower to be in compliance with such covenants, (d) all Specified Equity Contributions will be disregarded ignored for purposes of the calculation of Consolidated EBITDA for all other purposes, including calculating basket levels, financial ratio determinations, pricing and other items governed by reference to Consolidated EBITDA (other than for determining compliance with this the covenant set forth in Section 7.108.18(a), except for determinations, including increases in cash for netting purposes, made pursuant to Section 8.18(a) for fiscal quarters after the respective fiscal quarter in which such Event of Default is remediated by such Specified Equity Contribution.
(eii) there There shall be no more than five cures under Section 8.18(a) from the date hereof through the Latest Maturity Date.
(5iii) Specified Equity Contributions made in the aggregate after the Closing Date, (f) any Term Loans voluntarily prepaid with the proceeds of Specified Equity Contributions in a manner permitted by this Agreement shall be deemed no longer outstanding for purposes of determining compliance with this Section 7.10; provided that in no event shall any such reduction of Consolidated Secured Debt be given effect during the Fiscal Quarter with regard If notice has been delivered to which the Specified Equity Contribution is made, and (g) upon the Administrative Agent’s receipt Agent of the notice of Borrower’s intent to make a Specified Equity Contribution and until ten (10) Business Days after such notice to be delivered on or prior to the day date on which the applicable financial statements are required to be delivered for and containing reasonable detail on the applicable terms and conditions of the Specified Equity Contribution), then from the last day of the fiscal quarter pursuant related to Section 6.01(a) or 6.01(b)such cure notice until the required date for receipt of the Specified Equity Contribution, as the case may be, neither the Administrative Agent nor any Lender shall accelerate the Finance Obligations or otherwise exercise any remedies available to it during the continuance of a no Default or Event of Default shall have occurred under the Loan DocumentsDocuments with respect to any default under Section 8.18(a) for which such cure notice was delivered unless the fifteen day period set forth in clause (a) above has expired without the Specified Equity Contribution having been received; provided that until the occurrence of the satisfaction of the conditions in Section 6.2 and the receipt of such Specified Equity Contribution, including no Lender shall be obligated to make any remedies pursuant to Section 8.02Revolving Loan, no Swing Line Loans shall be made and no Issuing Bank shall issue any Letter of Credit.
Appears in 1 contract
Financial Covenant. The Borrower will Borrowers shall not permit the Secured Total Net Leverage Ratio at the end of any Test Period to exceed the ratio set forth below: September 30Ratio, 2015 through September 30, 2017 3.00:1.00 December 31, 2017 through September 30, 2018 2.75:1.00 December 31, 2018 and thereafter 2.50:1.00 In the event the Borrower fails to comply with the financial covenants set forth in this Section 7.10 as of the last day of any fiscal quarterTest Period (commencing with the Test Period ending on or about September 30, 2016) to exceed the ratio set forth below opposite such Test Period: For purposes of determining compliance with the financial covenant set forth in this Section 6.15, any Net Cash Proceeds sale or issuance of, or contributions in respect of, Capital Stock (which shall be in the form of or in respect of common equity, preferred equity that is not Disqualified Capital Stock or other Capital Stock on terms reasonably acceptable to the Administrative Agent) of the issuance of Equity Interests or Equity Equivalents (other than Disqualified Capital Stock) received by Borrowers during the Borrower applicable Fiscal Quarter and on or prior to the day that is ten fifteen (1015) Business Days after the day on which financial statements are required to be delivered for pursuant to Section 5.01(b) or (c), as applicable with respect to such Fiscal Quarter pursuant to Section 6.01(a) or 6.01(b(the “Cure Expiration Date”), as the case may be, willshall, at the irrevocable election request of Borrowerthe Borrowers, be included in the calculation of Consolidated Adjusted EBITDA for such fiscal quarter solely for the purposes of determining compliance with the financial covenant set forth in this Section 6.15 for such covenants at the end of such fiscal quarter Fiscal Quarter and any subsequent period that includes Test Period including such fiscal quarter Fiscal Quarter (any such equity contribution so included in the calculation of Consolidated Adjusted EBITDA, a “Specified Equity Contribution”); provided that (a) notice of Borrower’s intent to make a in each four consecutive Fiscal Quarter-period, the Specified Equity Contribution shall not be delivered no later exercised more than twice and there shall not be more than five Specified Equity Contributions during the tenth (10th) day following the date on which financial statements are required to be delivered for the applicable Fiscal Quarter pursuant to Section 6.01(a) or 6.01(b), as the case may beterm of this Agreement, (b) in each consecutive four fiscal quarter period there will be at least two fiscal quarters in which no Specified Equity Contribution is made, (c) the amount of any Specified Equity Contribution will shall be no greater than the sum of the amount required to cause the Borrower Borrowers to be in compliance with such covenantsthe financial covenant set forth in this Section 6.15 plus $1,000,000, (dc) all Specified Equity Contributions will shall be counted only as Consolidated Adjusted EBITDA solely for the purpose of compliance with the financial covenant set forth in this Section 6.15 and shall be disregarded for all other purposes of this Agreement, including for all other purposes of Article 6, during the period included in the calculation of Consolidated Adjusted EBITDA for all other purposes, including calculating basket levels, financial ratio determinations, pricing and other items governed by reference to Consolidated EBITDA (other than for determining compliance with this Section 7.10), (ed) there no actual or pro forma effect shall be no more than five (5) Specified Equity Contributions given during such Fiscal Quarter for any reduction in Indebtedness made in the aggregate after the Closing Date, (f) any Term Loans voluntarily prepaid with the proceeds of such Specified Equity Contributions in a manner permitted by this Agreement shall be deemed no longer outstanding for purposes Contribution. Notwithstanding the provisions of determining compliance with this Section 7.10; provided that in no event shall any such reduction of Consolidated Secured Debt be given effect during the Fiscal Quarter with regard to which the Specified Equity Contribution is made, and (g) upon the Administrative Agent’s receipt of the notice of Borrower’s intent to make a Specified Equity Contribution and until ten (10) Business Days after the day on which the financial statements are required to be delivered for the applicable fiscal quarter pursuant to Section 6.01(a) or 6.01(b), as the case may beArticle 7, neither the Administrative Agent nor any Lender shall accelerate the Finance Obligations or otherwise may exercise any remedies available to it during the continuance of a Default specified in this Agreement (or any other Loan Document) arising solely from an Event of Default under resulting from a breach of this Section 6.15 for a period commencing upon receipt of notice from the Loan Documents, including any remedies pursuant Borrowers that it intends to cure non-compliance with the financial covenant set forth in this Section 8.026.15 by a Specified Equity Contribution through the Cure Expiration Date.
Appears in 1 contract
Samples: Second Lien Term Loan Agreement (Allscripts Healthcare Solutions, Inc.)
Financial Covenant. The Borrower will not Commencing with the first full fiscal quarter ending following the Term Conversion Date, permit the Secured Leverage Debt Service Coverage Ratio at the end of any Test Period to exceed the ratio set forth below: September 30, 2015 through September 30, 2017 3.00:1.00 December 31, 2017 through September 30, 2018 2.75:1.00 December 31, 2018 and thereafter 2.50:1.00 In the event the Borrower fails to comply with the financial covenants set forth in this Section 7.10 be less than 1.10:1.00 as of the last day of any fiscal quarterquarter (the “Financial Covenant”). For purposes of determining compliance with the Financial Covenant, any Net Cash Proceeds of the issuance of Equity Interests or Equity Equivalents common equity contribution (other than Disqualified Capital StockDrawstop Equity Contributions) received by made to the Borrower Co-Borrowers after the end of a fiscal quarter and on or prior to the day that is ten (10) Business 10 Banking Days after the day on which financial statements are required to be delivered for such Fiscal Quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, fiscal quarter will, at the irrevocable election request of Borrowerthe Co-Borrowers, be included in the calculation of Consolidated EBITDA Operating Cash Available for such fiscal quarter Debt Service solely for the purposes of determining compliance with such covenants Financial Covenant at the end of such fiscal quarter and any applicable subsequent period that includes such fiscal quarter periods (any such equity contribution so included in the calculation of Consolidated EBITDAOperating Cash Available for Debt Service, a “Specified Equity Contribution”); provided provided, that (a) notice of Borrower’s intent to make a Specified Equity Contribution shall be delivered no later than the tenth (10th) day following the date on which financial statements are required to be delivered for the applicable Fiscal Quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, (b) in each four consecutive four fiscal quarter period period, there will shall be at least two fiscal quarters in which no Specified Equity Contribution is made, (b) during the term of the Term Facility, no more than five Specified Equity Contributions shall be made, (c) the amount of any Specified Equity Contribution will shall be no greater than the amount required to cause the Borrower Co-Borrowers to be in compliance with such covenantsthe Financial Covenant, (d) all Specified Equity Contributions will shall be disregarded for purposes of determining any baskets with respect to the calculation of Consolidated EBITDA for all other purposes, including calculating basket levels, financial ratio determinations, pricing covenants contained in the Credit Documents and other items governed by reference to Consolidated EBITDA (other than for determining compliance with this Section 7.10), (e) there shall be no more than five (5) Specified Equity Contributions made pro forma reduction in the aggregate after the Closing Date, (f) any Term Loans voluntarily prepaid Debt with the proceeds of any Specified Equity Contributions in a manner permitted by this Agreement shall be deemed no longer outstanding Contribution for purposes of determining compliance with this Section 7.10the Financial Covenant; provided provided, that in no event shall any to the extent such net cash proceeds are actually applied to prepay Debt, such reduction of Consolidated Secured Debt may be given effect during the Fiscal Quarter with regard to which the Specified Equity Contribution is made, and (g) upon the Administrative Agent’s receipt of the notice of Borrower’s intent to make a Specified Equity Contribution and until ten (10) Business Days after the day on which the financial statements are required to be delivered for the applicable credited in any subsequent fiscal quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, neither the Administrative Agent nor any Lender shall accelerate the Finance Obligations or otherwise exercise any remedies available to it during the continuance of a Default or Event of Default under the Loan Documents, including any remedies pursuant to Section 8.02quarter.
Appears in 1 contract
Samples: First Lien Credit Agreement (Fortress Transportation & Infrastructure Investors LLC)
Financial Covenant. The Borrower will not Commencing with the first full fiscal quarter ending following the Term Conversion Date, permit the Secured Leverage Debt Service Coverage Ratio at the end of any Test Period to exceed the ratio set forth below: September 30, 2015 through September 30, 2017 3.00:1.00 December 31, 2017 through September 30, 2018 2.75:1.00 December 31, 2018 and thereafter 2.50:1.00 In the event the Borrower fails to comply with the financial covenants set forth in this Section 7.10 be less than 1.05:1.00 as of the last day of any fiscal quarterquarter (the “Financial Covenant”). For purposes of determining compliance with the Financial Covenant, any Net Cash Proceeds of the issuance of Equity Interests or Equity Equivalents common equity contribution (other than Disqualified Capital StockDrawstop Equity Contributions (as defined in the First Lien Credit Agreement)) received by made to the Borrower Co-Borrowers after the end of a fiscal quarter and on or prior to the day that is ten (10) Business 10 Banking Days after the day on which financial statements are required to be delivered for such Fiscal Quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, fiscal quarter will, at the irrevocable election request of Borrowerthe Co-Borrowers, be included in the calculation of Consolidated EBITDA Operating Cash Available for such fiscal quarter Debt Service solely for the purposes of determining compliance with such covenants Financial Covenant at the end of such fiscal quarter and any applicable subsequent period that includes such fiscal quarter periods (any such equity contribution so included in the calculation of Consolidated EBITDAOperating Cash Available for Debt Service, a “Specified Equity Contribution”); provided provided, that (a) notice of Borrower’s intent to make a Specified Equity Contribution shall be delivered no later than the tenth (10th) day following the date on which financial statements are required to be delivered for the applicable Fiscal Quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, (b) in each four consecutive four fiscal quarter period period, there will shall be at least two fiscal quarters in which no Specified Equity Contribution is made, (b) during the term of the Term Facility, no more than five Specified Equity Contributions shall be made, (c) the amount of any Specified Equity Contribution will shall be no greater than the amount required to cause the Borrower Co-Borrowers to be in compliance with such covenantsthe Financial Covenant, (d) all Specified Equity Contributions will shall be disregarded for purposes of determining any baskets with respect to the calculation of Consolidated EBITDA for all other purposes, including calculating basket levels, financial ratio determinations, pricing covenants contained in the Credit Documents and other items governed by reference to Consolidated EBITDA (other than for determining compliance with this Section 7.10), (e) there shall be no more than five (5) Specified Equity Contributions made pro forma reduction in the aggregate after the Closing Date, (f) any Term Loans voluntarily prepaid Debt with the proceeds of any Specified Equity Contributions in a manner permitted by this Agreement shall be deemed no longer outstanding Contribution for purposes of determining compliance with this Section 7.10the Financial Covenant; provided provided, that in no event shall any to the extent such net cash proceeds are actually applied to prepay Debt, such reduction of Consolidated Secured Debt may be given effect during the Fiscal Quarter with regard to which the Specified Equity Contribution is made, and (g) upon the Administrative Agent’s receipt of the notice of Borrower’s intent to make a Specified Equity Contribution and until ten (10) Business Days after the day on which the financial statements are required to be delivered for the applicable credited in any subsequent fiscal quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, neither the Administrative Agent nor any Lender shall accelerate the Finance Obligations or otherwise exercise any remedies available to it during the continuance of a Default or Event of Default under the Loan Documents, including any remedies pursuant to Section 8.02quarter.
Appears in 1 contract
Samples: Second Lien Credit Agreement (Fortress Transportation & Infrastructure Investors LLC)
Financial Covenant. 9.3.1 The Lead Borrower will not permit and its Restricted Subsidiaries shall, on any date when Liquidity Condition Availability is less than the Secured Leverage greater of (a) 10.0% of the Revolver Commitments, and (b) $10,000,000 (the “FCCR Test Amount”), maintain a Fixed Charge Coverage Ratio of at least 1.0 to 1.0, tested for the four Fiscal Quarter period ending on the last day of the most recently ended Fiscal Quarter for which the Borrowers were required to deliver financial statements to the Agent in accordance with Section 9.1.2(b) of this Agreement, and at the end of any each succeeding Fiscal Quarter thereafter until the date on which Availability has exceeded the FCCR Test Period Amount for 30 consecutive days.
9.3.2 Notwithstanding anything to exceed contrary in this Agreement (including Section 10), upon an Event of Default as a result of the ratio Lead Borrower’s failure to comply with Section 9.3.1 above, such Event of Default shall, subject to the limitations set forth below: September 30, 2015 through September 30, 2017 3.00:1.00 December 31, 2017 through September 30, 2018 2.75:1.00 December 31, 2018 be deemed cured ab initio and thereafter 2.50:1.00 In cease to exist in the event that, within 10 Business Days after the date on which the Lead Borrower fails was required to comply deliver financial statements in accordance with Section 9.3.1 for the month in which such Event of Default occurs, a cash equity capital contribution is made to the Lead Borrower (or otherwise receives an equity contribution in respect of the equity issued for such Cure Actions in exchange for Equity Interests other than Disqualified Equity interests). Each such equity contribution is referred to as “Cure Action”. The proceeds of any Cure Action may be included solely in the calculation of EBITDA (solely for purposes of calculating the ratio in Section 9.3.1 above, and not for any other purpose hereunder, and there shall be no pro forma or other reduction in Debt with the financial covenants set forth proceeds of such Cure Action in this Section 7.10 connection with determining such calculation during the period in which such proceeds are included in EBITDA) at the request of the Lead Borrower as of if such proceeds were contributed on the last day of any fiscal quarterthe applicable Fiscal Quarter, any Net Cash Proceeds and must be sufficient (but may not be in excess of the issuance amount required) to cause Obligors to be in pro forma compliance with the financial covenant set forth in Section 9.3.1. No more than two Cure Actions may be taken in any four Fiscal Quarter period and no more than four Cure Actions may be taken after the Fourth Restatement Date. If, after giving effect to the Cure Action, the Lead Borrower shall be in compliance with the requirements of Equity Interests the Fixed Charge Coverage Ratio, the Lead Borrower shall be deemed to have satisfied the requirements of Section 9.3.1 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 Equity Equivalents Event of Default with respect to such Fixed Charge Coverage Ratio that had occurred shall be deemed cured for purposes of this Agreement. To the extent a Fiscal Quarter for which such Fixed Charge Coverage Ratio is initially recalculated as a result of such Cure Action is included in the calculation of the Fixed Charge Coverage Ratio in a subsequent fiscal period, the results of the Cure Action shall be included in the amount of EBITDA for such Fiscal Quarter in such subsequent fiscal period. After the occurrence of the breach, Default or Event of Default resulting from a failure to comply with Section 9.3.1, if the Lead Borrower has given the Agent notice that it intends to cure such breach, Default or Event of Default pursuant to a Cure Action, neither the Lenders nor the Agent shall exercise any rights or remedies under Section 10 (other than Disqualified Capital Stockor under any Loan Document) received by available during the Borrower continuance of any breach, Default or Event of Default on the basis of any actual or purported failure to comply with Section 9.3.1 until such failure is not cured on or prior to the day that is ten (10) Business Days after the day on which financial statements are required to be delivered for such Fiscal Quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, will, at the irrevocable election of Borrower, be included in the calculation of Consolidated EBITDA for such fiscal quarter solely for the purposes of determining compliance with such covenants at the end of such fiscal quarter and any subsequent period that includes such fiscal quarter (any such equity contribution so included in the calculation of Consolidated EBITDA, a “Specified Equity Contribution”); provided that (a) notice of Borrower’s intent to make a Specified Equity Contribution shall be delivered no later than the tenth (10th) day following the date on which financial statements are required to be delivered for the applicable Fiscal Quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, (b) in each consecutive four fiscal quarter period there will be at least two fiscal quarters in which no Specified Equity Contribution is made, (c) the amount of any Specified Equity Contribution will be no greater than the amount required to cause the Borrower to be in compliance with such covenants, (d) all Specified Equity Contributions will be disregarded for purposes expiration of the calculation of Consolidated EBITDA for all other purposes, including calculating basket levels, financial ratio determinations, pricing and other items governed by reference to Consolidated EBITDA (other than for determining compliance with this Section 7.10), (e) there shall be no more than five (5) Specified Equity Contributions made in the aggregate after the Closing Date, (f) any Term Loans voluntarily prepaid with the proceeds of Specified Equity Contributions in a manner permitted by this Agreement shall be deemed no longer outstanding for purposes of determining compliance with this Section 7.10; provided that in no event shall any such reduction of Consolidated Secured Debt be given effect during the Fiscal Quarter with regard to which the Specified Equity Contribution is made, and (g) upon the Administrative Agent’s receipt of the notice of Borrower’s intent to make a Specified Equity Contribution and until ten (10) 10 Business Days after the day on which the financial statements are required to be delivered for the applicable fiscal quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, neither the Administrative Agent nor any Lender shall accelerate the Finance Obligations or otherwise exercise any remedies available to it during the continuance of a Default or Event of Default under the Loan Documents, including any remedies pursuant to Section 8.02Day cure period referenced above.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Milacron Holdings Corp.)
Financial Covenant. The Borrower will (a) Holdings and the Restricted Subsidiaries shall not permit the Secured Consolidated First Lien Net Leverage Ratio at the end of any Test Period to exceed the ratio set forth below: September 30Period, 2015 through September 30, 2017 3.00:1.00 December 31, 2017 through September 30, 2018 2.75:1.00 December 31, 2018 and thereafter 2.50:1.00 In the event the Borrower fails to comply commencing with the financial covenants set forth second full fiscal quarter of Holdings commencing after the Amendment and Restatement Effective Date, to be greater than 6.25:1.00; provided that the foregoing shall only be tested if the Aggregate Exposure exceeds 35% of Aggregate Commitments (excluding (w) issued and undrawn Letters of Credit (provided, to the extent such issued and undrawn Letters of Credit are not Cash Collateralized Letters of Credit, such exclusion shall not exceed $20,000,000), (x) Cash Collateralized Letters of Credit, (y) amounts outstanding pursuant to Ancillary Facilities used in this Section 7.10 the ordinary course of business and (z) Borrowings of Revolving Loans to fund any upfront fees required to be paid on the Closing Date and the issuance of Letters of Credit on the Amendment and Restatement Effective Date for the first two fiscal quarters after the Amendment and Restatement Effective Date) as of the last day of such Test Period.
(b) For purposes of determining compliance with the financial covenant set forth in Section 10.11(a) above, any cash equity contribution (which equity shall be common equity or otherwise in a form reasonably acceptable to the Administrative Agent) made to Holdings (which shall be contributed in cash to the common equity of the Borrower) following the end of any fiscal quarter, any Net Cash Proceeds of the issuance of Equity Interests or Equity Equivalents (other than Disqualified Capital Stock) received by the Borrower quarter and on or prior to the day that is ten (10) Business Days after the day on which date financial statements are required to be delivered for such Fiscal Quarter fiscal quarter pursuant to Section 6.01(a9.01 (such ten (10) or 6.01(b), Business Day period being referred to herein as the case may be, “Interim Period”) will, at the irrevocable election request of the Borrower, be included in the calculation of Consolidated EBITDA for such fiscal quarter solely for the purposes of determining compliance with such covenants financial covenant at the end of such fiscal quarter and any applicable subsequent period that includes periods which include such fiscal quarter (any such equity contribution so included in the calculation of Consolidated EBITDA, a “Specified Equity Contribution”); provided that (a) notice of Borrower’s intent to make a Specified Equity Contribution shall be delivered no later than the tenth (10th) day following the date on which financial statements are required to be delivered for the applicable Fiscal Quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, (b) in each consecutive four fiscal quarter period period, there will shall be at least two fiscal quarters in respect of which no Specified Equity Contribution is mademade and no more than five Specified Equity Contributions may be made during the term of this Agreement, (cb) the amount of any Specified Equity Contribution will shall be no greater than the amount required to cause the Borrower to be in pro forma compliance with such covenantsfinancial covenant, (dc) all Specified Equity Contributions will shall be disregarded counted solely for purposes of the calculation of Consolidated EBITDA compliance with such financial covenant and shall be disregarded for all other purposes, including calculating basket levels, for purposes of determining any financial ratio determinationsratio-based conditions, pricing or any baskets with respect to the covenants contained herein and in the other items governed by reference to Consolidated EBITDA (other than for determining compliance with this Section 7.10)Credit Documents, (ed) there shall be no more than five pro forma reduction in Indebtedness (5including by way of netting cash) Specified Equity Contributions made in the aggregate after the Closing Date, (f) any Term Loans voluntarily prepaid with the proceeds of any Specified Equity Contributions in a manner permitted by this Agreement shall be deemed no longer outstanding Contribution other than for purposes of determining compliance with this Section 7.10; future fiscal quarters provided that in no event shall any such reduction of Consolidated Secured Debt be given effect during the Fiscal Quarter with regard to which the Specified Equity Contribution is madeactually used to reduce Indebtedness, and (ge) upon from the date of the Administrative Agent’s receipt of a written notice from the notice Borrower that the Borrower intends to exercise its cure rights under this Section 10.11(b) through the last Business Day of Borrower’s intent the Interim Period, (i) the Borrower shall not be permitted to make a any Borrowing of Revolving Loans and no Letters of Credit shall be issued hereunder and no amendments (other than amendments thereof that does not increase the face value amount of the Letter of Credit), extensions or renewals of any Letter of Credit shall be made during the Interim Period until the relevant Specified Equity Contribution has been made and until ten (10ii) Business Days after the day on which the financial statements are required to be delivered for the applicable fiscal quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, neither the Administrative Agent nor any Lender shall have any right to accelerate the Finance Obligations Loans or otherwise terminate the Commitments, and none of the Administrative Agent nor any Lender shall have any right to foreclose on or take possession of the Collateral or exercise any remedies other right or remedy under the Credit Documents that would be available to it during on the continuance basis of a Default or an Event of Default under resulting from the Loan Documents, including any remedies pursuant failure to comply with Section 8.0210.11(a).
(c) For the avoidance of doubt the financial covenant set forth in Section 10.11(a) is solely for the benefit of the Revolving Lenders.
Appears in 1 contract
Financial Covenant. The Borrower will Borrowers shall not permit the Consolidated Senior Secured Leverage Net Debt to Consolidated EBITDA Ratio at the end of any Test Period to exceed the ratio set forth below: September 30, 2015 through September 30, 2017 3.00:1.00 December 31, 2017 through September 30, 2018 2.75:1.00 December 31, 2018 and thereafter 2.50:1.00 In the event the Borrower fails to comply with the financial covenants set forth in this Section 7.10 as of the last day of any fiscal quarterTest Period to be greater than 5.00:1.00. For purposes of determining compliance with this Section 10.9, any Net Cash Proceeds of the net cash proceeds from the issuance and sale of Equity Interests or Equity Equivalents of RailAmerica (other than Disqualified Capital Stock) received by RailAmerica after the Borrower end of the relevant Test Period and on or prior to the day date that is ten (10) Business Days days after the day on which financial statements Section 9.1 Financials are required to be delivered (without giving effect to any grace period) for the last fiscal quarter in such Fiscal Quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, Test Period will, at the irrevocable election request of BorrowerRailAmerica, be included in the calculation of Consolidated EBITDA for such fiscal quarter solely for the purposes of determining compliance with such covenants this Section 10.9 at the end of such fiscal quarter Test Period and any applicable subsequent period that includes Test Periods which include such fiscal quarter but not for determining pro forma compliance with this Section 10.9 to determine the permissibility of a transaction (any such equity contribution net cash proceeds so received by RailAmerica and so included in the calculation of Consolidated EBITDA, a “Specified Equity Contribution”); provided that , subject to the following terms and conditions: (a) notice of Borrower’s intent to make a Specified Equity Contribution shall be delivered no later than the tenth (10th) day following the date on which financial statements are required to be delivered for the applicable Fiscal Quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, (b) in each consecutive four fiscal quarter period period, there will shall be at least two fiscal quarters in respect of which no Specified Equity Contribution is made, (cb) the amount of any Specified Equity Contribution will shall be no greater than the amount required to cause the Borrower Borrowers to be in compliance on a Pro Forma Basis with such covenantsthis Section 10.9, (dc) all Specified Equity Contributions will shall be disregarded for purposes of making any other determination herein or any other Credit Document, (d) no more than four Specified Equity Contributions shall be made prior to the calculation of Consolidated EBITDA for all other purposes, including calculating basket levels, financial ratio determinations, pricing and other items governed by reference to Consolidated EBITDA (other than for determining compliance with this Section 7.10)Latest Maturity Date, (e) there shall be no more than five (5) reduction in Indebtedness in connection with any Specified Equity Contributions made in the aggregate after the Closing Date, (f) any Term Loans voluntarily prepaid with the proceeds of Specified Equity Contributions in a manner permitted by this Agreement shall be deemed no longer outstanding for purposes of determining compliance with this Section 7.10; provided that in 10.9 and no event Specified Equity Contribution shall any such reduction be included as cash for purposes of calculating clause (y) of the definition of Consolidated Senior Secured Net Debt be given effect during and (f) the Fiscal Quarter with regard to which proceeds of the Specified Equity Contribution is made, and (g) upon the Administrative Agent’s receipt of the notice of Borrower’s intent shall immediately be used to make a Specified Equity Contribution and until ten (10) Business Days after the day on which the financial statements are required to be delivered for the applicable fiscal quarter pursuant to prepay Loans in accordance with Section 6.01(a) or 6.01(b), as the case may be, neither the Administrative Agent nor any Lender shall accelerate the Finance Obligations or otherwise exercise any remedies available to it during the continuance of a Default or Event of Default under the Loan Documents, including any remedies pursuant to Section 8.025.2.
Appears in 1 contract
Financial Covenant. 9.3.1 The Lead Borrower will not permit and its Restricted Subsidiaries shall, on any date when Liquidity Condition Availability is less than the Secured Leverage greater of (a) 12.5% of the Revolver Commitments, and (b) $13,750,000 (the “FCCR Test Amount”), maintain a Fixed Charge Coverage Ratio of at least 1.0 to 1.0, tested for the four Fiscal Quarter period ending on the last day of the most recently ended Fiscal Quarter for which the Borrowers were required to deliver financial statements to the Agent in accordance with Section 9.1.2(b) of this Agreement, and at the end of any each succeeding Fiscal Quarter thereafter until the date on which Availability has exceeded the FCCR Test Period Amount for 30 consecutive days.
9.3.2 Notwithstanding anything to exceed contrary in this Agreement (including Section 10), upon an Event of Default as a result of the ratio Lead Borrower’s failure to comply with Section 9.3.1 above, such Event of Default shall, subject to the limitations set forth below: September 30, 2015 through September 30, 2017 3.00:1.00 December 31, 2017 through September 30, 2018 2.75:1.00 December 31, 2018 be deemed cured ab initio and thereafter 2.50:1.00 In cease to exist in the event that, within 10 Business Days after the date on which the Lead Borrower fails was required to comply deliver financial statements in accordance with Section 9.3.1 for the month in which such Event of Default occurs, a cash equity capital contribution is made to the Lead Borrower (or otherwise receives an equity contribution in respect of the equity issued for such Cure Actions in exchange for Equity Interests other than Disqualified Equity interests). Each such equity contribution is referred to as “Cure Action”. The proceeds of any Cure Action may be included solely in the calculation of EBITDA (solely for purposes of calculating the ratio in Section 9.3.1 above, and not for any other purpose hereunder, and there shall be no pro forma or other reduction in Debt with the financial covenants set forth proceeds of such Cure Action in this Section 7.10 connection with determining such calculation during the period in which such proceeds are included in EBITDA) at the request of the Lead Borrower as of if such proceeds were contributed on the last day of any fiscal quarterthe applicable Fiscal Quarter, any Net Cash Proceeds and must be sufficient (but may not be in excess of the issuance amount required) to cause Obligors to be in pro forma compliance with the financial covenant set forth in Section 9.3.1. No more than two Cure Actions may be taken in any four Fiscal Quarter period and no more than four Cure Actions may be taken after the Third Restatement Date. If, after giving effect to the Cure Action, the Lead Borrower shall be in compliance with the requirements of Equity Interests the Fixed Charge Coverage Ratio, the Lead Borrower shall be deemed to have satisfied the requirements of Section 9.3.1 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 Equity Equivalents Event of Default with respect to such Fixed Charge Coverage Ratio that had occurred shall be deemed cured for purposes of this Agreement. To the extent a Fiscal Quarter for which such Fixed Charge Coverage Ratio is initially recalculated as a result of such Cure Action is included in the calculation of the Fixed Charge Coverage Ratio in a subsequent fiscal period, the results of the Cure Action shall be included in the amount of EBITDA for such Fiscal Quarter in such subsequent fiscal period. After the occurrence of the breach, Default or Event of Default resulting from a failure to comply with Section 9.3.1, if the Lead Borrower has given the Agent notice that it intends to cure such breach, Default or Event of Default pursuant to a Cure Action, neither the Lenders nor the Agent shall exercise any rights or remedies under Section 10 (other than Disqualified Capital Stockor under any Loan Document) received by available during the Borrower continuance of any breach, Default or Event of Default on the basis of any actual or purported failure to comply with Section 9.3.1 until such failure is not cured on or prior to the day that is ten (10) Business Days after the day on which financial statements are required to be delivered for such Fiscal Quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, will, at the irrevocable election of Borrower, be included in the calculation of Consolidated EBITDA for such fiscal quarter solely for the purposes of determining compliance with such covenants at the end of such fiscal quarter and any subsequent period that includes such fiscal quarter (any such equity contribution so included in the calculation of Consolidated EBITDA, a “Specified Equity Contribution”); provided that (a) notice of Borrower’s intent to make a Specified Equity Contribution shall be delivered no later than the tenth (10th) day following the date on which financial statements are required to be delivered for the applicable Fiscal Quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, (b) in each consecutive four fiscal quarter period there will be at least two fiscal quarters in which no Specified Equity Contribution is made, (c) the amount of any Specified Equity Contribution will be no greater than the amount required to cause the Borrower to be in compliance with such covenants, (d) all Specified Equity Contributions will be disregarded for purposes expiration of the calculation of Consolidated EBITDA for all other purposes, including calculating basket levels, financial ratio determinations, pricing and other items governed by reference to Consolidated EBITDA (other than for determining compliance with this Section 7.10), (e) there shall be no more than five (5) Specified Equity Contributions made in the aggregate after the Closing Date, (f) any Term Loans voluntarily prepaid with the proceeds of Specified Equity Contributions in a manner permitted by this Agreement shall be deemed no longer outstanding for purposes of determining compliance with this Section 7.10; provided that in no event shall any such reduction of Consolidated Secured Debt be given effect during the Fiscal Quarter with regard to which the Specified Equity Contribution is made, and (g) upon the Administrative Agent’s receipt of the notice of Borrower’s intent to make a Specified Equity Contribution and until ten (10) 10 Business Days after the day on which the financial statements are required to be delivered for the applicable fiscal quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, neither the Administrative Agent nor any Lender shall accelerate the Finance Obligations or otherwise exercise any remedies available to it during the continuance of a Default or Event of Default under the Loan Documents, including any remedies pursuant to Section 8.02Day cure period referenced above.
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Financial Covenant. (a) The Lead Borrower will not permit and its Restricted Subsidiaries shall, on any date when the Secured Leverage sum of Availability is less than the greater of (a) 10% of the Aggregate Commitments, and (b) $14,000,000 (the “FCCR Test Amount”), have a Consolidated Fixed Charge Coverage Ratio of at least 1.0 to 1.0, tested for the four fiscal quarter period ending on the last day of the most recently ended fiscal quarter for which the Lead Borrowers were required to deliver Section 9.01 Financials, and at the end of any each succeeding fiscal quarter thereafter until the date on which Availability has exceeded the FCCR Test Period to exceed the ratio set forth below: September 30, 2015 through September 30, 2017 3.00:1.00 December 31, 2017 through September 30, 2018 2.75:1.00 December 31, 2018 and thereafter 2.50:1.00 In the event the Borrower fails to comply Amount for 30 consecutive days.
(b) For purposes of determining compliance with the financial covenants covenant set forth in this Section 7.10 as 10.11(a) above, cash equity contributions (which equity shall be common equity or Qualified Preferred Stock) made to the Lead Borrower after the beginning of the last day of any relevant fiscal quarter, any Net Cash Proceeds of the issuance of Equity Interests or Equity Equivalents (other than Disqualified Capital Stock) received by the Borrower quarter and on or prior to the day that is ten (10) 10 Business Days after the day on which Lead Borrower and its Restricted Subsidiaries become subject to testing the financial statements are required to be delivered covenant under clause (a) of this Section 10.11 for such Fiscal Quarter pursuant fiscal quarter and subsequently on or prior to Section 6.01(a) or 6.01(b), the day that is 10 Business Days after the end of the subsequent financial quarter (such 10-Business Day periods being referred to herein as the case may be, “Interim Period”) will, at the irrevocable election request of the Lead Borrower, be included in the calculation of Consolidated EBITDA for such fiscal quarter solely for the purposes of determining compliance with such covenants financial covenant at the end of such fiscal quarter and any applicable subsequent period that includes periods which include such fiscal quarter (any such equity contribution so included in the calculation of Consolidated EBITDA, a “Specified Equity Contribution”); provided that (a) notice of Borrower’s intent to make a Specified Equity Contribution shall Contributions may be delivered made no later more than two times in any twelve fiscal month period and no more than five times during the tenth (10th) day following the date on which financial statements are required to be delivered for the applicable Fiscal Quarter pursuant to Section 6.01(a) or 6.01(b), as the case may beterm of this Agreement, (b) in each consecutive four fiscal quarter period there will be at least two fiscal quarters in which no Specified Equity Contribution is made, (c) the amount of any Specified Equity Contribution will shall be no greater than the amount required to cause the Borrower Borrowers to be in pro forma compliance with such covenantsfinancial covenant, (c) the Borrowers shall not be permitted to borrow hereunder during the Interim Period until the relevant Specified Equity Contribution has been made, (d) all Specified Equity Contributions will shall be disregarded for purposes of determining any baskets calculated on the calculation basis of Consolidated EBITDA for all contained herein and in the other purposes, including calculating basket levels, financial ratio determinations, pricing Credit Documents and other items governed by reference to Consolidated EBITDA (other than for determining compliance with this Section 7.10), (e) there shall be no more than five (5) Specified Equity Contributions made pro forma or other reduction in the aggregate after the Closing Date, (f) any Term Loans voluntarily prepaid Indebtedness with the proceeds of any Specified Equity Contributions in a manner permitted by this Agreement shall be deemed no longer outstanding Contribution for purposes of determining compliance with this Section 7.10; provided that the financial covenant for the fiscal quarter in no event shall any which such reduction of Consolidated Secured Debt be given effect during the Fiscal Quarter with regard to which the Specified Equity Contribution is made, and (g) upon the Administrative Agent’s receipt of the notice of Borrower’s intent to make a Specified Equity Contribution and until ten (10) Business Days after the day on made or any applicable subsequent periods which the financial statements are required to be delivered for the applicable include such fiscal quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, neither the Administrative Agent nor any Lender shall accelerate the Finance Obligations or otherwise exercise any remedies available to it during the continuance of a Default or Event of Default under the Loan Documents, including any remedies pursuant to Section 8.02quarter.
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Financial Covenant. The Borrower will not permit the Secured Leverage Ratio at the end of any Test Period to exceed the ratio set forth below: September 30, 2015 through September 30, 2017 3.00:1.00 December 31, 2017 through September 30, 2018 2.75:1.00 December 31, 2018 and thereafter 2.50:1.00 (a) In the event that, at any time, the Excess Availability plus Eligible Cash Collateral (without duplication of Borrowing Base Eligible Cash Collateral) as of such date (after giving effect to the funding of all Revolving Credit Advances and the issuance of all Letter of Credit Advances to be funded or issued as of such date) is less than 10% of the Borrowing Base, then the Borrower fails shall be required to comply with the financial covenants set forth in this Section 7.10 maintain, as of the last day of any fiscal quarterMeasurement Period that is also the end of a Fiscal Quarter, a Fixed Charge Coverage Ratio of at least 1.00:1.00 until Excess Availability plus Eligible Cash Collateral (without duplication of Borrowing Base Eligible Cash Collateral) shall be greater than 10% of the Borrowing Base for a period of fifteen (15) consecutive days.
(b) For purposes of determining compliance with the foregoing clause (a), any Net Cash Proceeds of the issuance of Equity Interests equity investment made directly or Equity Equivalents (other than Disqualified Capital Stock) received by indirectly to the Borrower after the First Amendment Effective Date and on or prior to the day that is ten (10) Business Days after the day on which financial statements are required to be delivered for such a Fiscal Quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, willshall, at the irrevocable election request of Borrowerthe Borrower and in the event that the proceeds thereof have been contributed directly or indirectly to the Borrower as common equity, Permitted Preferred Stock or other equity on terms and conditions reasonably acceptable to the Administrative Agent, be included in the calculation of Consolidated EBITDA for such fiscal quarter solely for the purposes purpose of determining compliance with such covenants covenant at the end of such fiscal quarter Fiscal Quarter and any applicable subsequent period that includes such fiscal quarter periods (any such equity contribution so included in the calculation of Consolidated EBITDA, a “Specified Equity Contribution”); provided that (a) notice of Borrower’s intent to make a Specified Equity Contribution shall be delivered no later than the tenth (10th) day following the date on which financial statements are required to be delivered for the applicable Fiscal Quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, (bi) in each four consecutive four fiscal quarter Fiscal Quarter period there will shall be at least two fiscal quarters one Fiscal Quarter in which no Specified Equity Contribution is made, made and (cii) the amount of any Specified Equity Contribution will shall be no greater than the amount required to cause the Borrower to be in compliance with such covenantsthe Fixed Charge Coverage Ratio. . The Borrower shall maintain, at all times, Excess Availability of at least the greater of (di) all Specified Equity Contributions will be disregarded for purposes $25,000,000 or (ii) ten percent (10%) of the calculation sum of Consolidated EBITDA for all other purposes, including calculating basket levels, financial ratio determinations, pricing and other items governed by reference (x) the Loan Cap (calculated without giving effect to Consolidated EBITDA the Term Pushdown Reserve) plus (other than for determining compliance with this Section 7.10), y) the lesser of (eA) there shall be no more than five (5) Specified Equity Contributions made in the aggregate after outstanding principal balance of the Closing Date, (f) any Term Loans voluntarily prepaid with the proceeds of Specified Equity Contributions in a manner permitted by this Agreement shall be deemed no longer outstanding for purposes of determining compliance with this Section 7.10; provided that in no event shall any such reduction of Consolidated Secured Debt be given effect during the Fiscal Quarter with regard to which the Specified Equity Contribution is made, Obligations and (gB) upon the Administrative Agent’s receipt of the notice of Borrower’s intent to make a Specified Equity Contribution and until ten (10) Business Days after the day on which the financial statements are required to be delivered for the applicable fiscal quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, neither the Administrative Agent nor any Lender shall accelerate the Finance Obligations or otherwise exercise any remedies available to it during the continuance of a Default or Event of Default under the Loan Documents, including any remedies pursuant to Section 8.02.Term Borrowing Base. ARTICLE VI—Article VI
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Financial Covenant. (a) The Borrower will not permit Borrowers and their Restricted Subsidiaries shall, on any date during a Covenant Trigger Period, maintain a Consolidated Fixed Charge Coverage Ratio of at least 1.0 to 1.0, tested for the Secured Leverage Ratio four fiscal quarter period ending on the last day of the most recently ended fiscal quarter for which the Borrowers were required to deliver financial statements to the Administrative Agent in accordance with Section 5.04, and at the end of any Test each succeeding fiscal quarter thereafter until the date on which a Covenant Trigger Period is no longer in effect.
(b) Notwithstanding anything to exceed contrary in this Agreement (including Article VII), upon an Event of Default as a result of the ratio Borrowers’ failure to comply with Section 6.10(a) above, such Event of Default shall, subject to the limitations set forth below: September 30, 2015 through September 30, 2017 3.00:1.00 December 31, 2017 through September 30, 2018 2.75:1.00 December 31, 2018 be deemed cured ab initio and thereafter 2.50:1.00 In cease to exist in the event the Borrower fails to comply with the financial covenants set forth in this Section 7.10 as of the last day of any fiscal quarterthat, any Net Cash Proceeds of the issuance of Equity Interests or Equity Equivalents (other than Disqualified Capital Stock) received by the Borrower on or prior to the day that is within ten (10) Business Days after the day date on which the Borrowers were required to deliver financial statements are required in accordance with Section 5.04 for the fiscal quarter in which such Event of Default occurs, cash proceeds of a sale of, or contribution to, equity (which equity shall be common equity, “qualified” preferred equity or other equity (such other equity to be delivered for on terms reasonably acceptable to the Administrative Agent)) of Parent are received as a cash common equity contribution by the Lead Borrower. Each such Fiscal Quarter pursuant equity contribution is referred to Section 6.01(a) or 6.01(b), as the case a “Cure Action.” The proceeds of any Cure Action may be, will, at the irrevocable election of Borrower, be included solely in the calculation of Consolidated EBITDA for such fiscal quarter (solely for purposes of calculating the ratio in Section 6.10(a), and not for any other purpose hereunder (including for purposes of determining compliance any financial ratio-based conditions, pricing or the availability of any basket under Article VI of this Agreement), and there shall be no pro forma or other reduction in Indebtedness (directly through repayment or indirectly through netting) with the proceeds of such covenants Cure Action in connection with determining such calculation during the period in which such proceeds are included in EBITDA) at the end request of the Lead Borrower as if such fiscal quarter and any subsequent period that includes such fiscal quarter (any such equity contribution so included in proceeds were contributed on the calculation last day of Consolidated EBITDA, a “Specified Equity Contribution”); provided that (a) notice of Borrower’s intent to make a Specified Equity Contribution shall be delivered no later than the tenth (10th) day following the date on which financial statements are required to be delivered for the applicable Fiscal Quarter pursuant to Section 6.01(a) or 6.01(b)fiscal quarter, as the case and must be sufficient (but may be, (b) not be in each consecutive four fiscal quarter period there will be at least two fiscal quarters in which no Specified Equity Contribution is made, (c) excess of the amount of any Specified Equity Contribution will be no greater than the amount required required) to cause the Borrower Loan Parties to be in compliance on a Pro Forma Basis with such covenants, the financial covenant set forth in Section 6.10(a). No more than two Cure Actions may be taken in any four (d4) all Specified Equity Contributions will be disregarded for purposes of the calculation of Consolidated EBITDA for all other purposes, including calculating basket levels, financial ratio determinations, pricing fiscal quarter period and other items governed by reference to Consolidated EBITDA (other than for determining compliance with this Section 7.10), (e) there shall be no more than five (5) Specified Equity Contributions made Cure Actions may be taken during the term of this Agreement. If, after giving effect to the Cure Action, the Borrowers shall be in the aggregate after the Closing Date, (f) any Term Loans voluntarily prepaid compliance with the proceeds requirements of Specified Equity Contributions in a manner permitted by this Agreement Section 6.10(a), the Borrowers shall be deemed to have satisfied the requirements of Section 6.10(a) as of the relevant date of determination with the same effect as though there had been no longer outstanding failure to comply therewith at such date, and the applicable breach or Event of Default with respect to Section 6.10(a) that had occurred shall be deemed cured for purposes of determining compliance this Agreement. To the extent a fiscal quarter for which such Fixed Charge Coverage Ratio is initially recalculated as a result of such Cure Action is included in the calculation of the Fixed Charge Coverage Ratio in a subsequent fiscal period, the results of the Cure Action shall be included in the amount of EBITDA for such fiscal quarter in such subsequent fiscal period. After the occurrence of the breach, Default or Event of Default resulting from a failure to comply with this Section 7.10; provided 6.10(a), if the Lead Borrower has given the Administrative Agent notice that in no event it intends to cure such breach, Default or Event of Default pursuant to a Cure Action, neither the Lenders nor the Administrative Agent shall exercise any such reduction of Consolidated Secured Debt be given effect rights or remedies under Article VII (or under any Loan Document) available during the Fiscal Quarter continuance of any breach, Default or Event of Default on the basis of any actual or purported failure to comply with regard Section 6.10(a) (provided, that during such time no Lender shall be required to which fund any Revolver Loans and the Specified Equity Contribution Issuing Bank shall not be required to issue any Letters of Credit) until such failure is made, and (g) upon not cured on or prior to the Administrative Agent’s receipt expiration of the notice of Borrower’s intent to make a Specified Equity Contribution and until ten (10) Business Days after the day on which the financial statements are required to be delivered for the applicable fiscal quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, neither the Administrative Agent nor any Lender shall accelerate the Finance Obligations or otherwise exercise any remedies available to it during the continuance of a Default or Event of Default under the Loan Documents, including any remedies pursuant to Section 8.02Day cure period referenced above.
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Samples: Credit Agreement (Ollie's Bargain Outlet Holdings, Inc.)
Financial Covenant. (a) The Borrower will not permit Company and any Restricted Subsidiary shall not, on any date when Specified Availability is less than the Secured Leverage greater of (a) 10% of the Line Cap, and (b) $50,000,00045,000,000 (the “FCCR Test Amount”) for two consecutive Business Days, have a Consolidated Fixed Charge Coverage Ratio of less than 1.0 to 1.0, tested for the four fiscal quarter period ending on the last day of the most recently ended fiscal quarter for which the Borrowers were required to deliver Section 9.01 Financials, and at the end of any each succeeding fiscal quarter thereafter until the date on which Specified Availability has exceeded the FCCR Test Period to exceed the ratio set forth below: September 30, 2015 through September 30, 2017 3.00:1.00 December 31, 2017 through September 30, 2018 2.75:1.00 December 31, 2018 and thereafter 2.50:1.00 In the event the Borrower fails to comply Amount for 21 consecutive days.
(b) For purposes of determining compliance with the financial covenants covenant set forth in this Section 7.10 as 10.11(a) above, cash equity contributions (which equity shall be common equity) made to the Company (which shall be contributed in cash to the common equity of the last day of any fiscal quarter, any Net Cash Proceeds Company) after the end of the issuance of Equity Interests or Equity Equivalents (other than Disqualified Capital Stock) received by the Borrower relevant fiscal quarter and on or prior to the day that is ten (10) 10 Business Days after the day on which Company is required to deliver financial statements are required to be delivered for such Fiscal Quarter pursuant to under Section 6.01(a9.01(a) or 6.01(b), (b) (such 10-Business Day periods being referred to herein as the case may be, “Interim Period”) will, at the irrevocable election request of Borrowerthe Company, be included in the calculation of Consolidated EBITDA for such fiscal quarter solely for the purposes of determining compliance with such covenants financial covenant at the end of such fiscal quarter and any applicable subsequent period that includes periods which include such fiscal quarter (any such equity contribution so included in the calculation of Consolidated EBITDA, a “Specified Equity Contribution”); provided that (a) notice of Borrower’s intent to make a Specified Equity Contribution shall Contributions may be delivered made no later more than two times in any twelve fiscal month period and no more than five times during the tenth (10th) day following the date on which financial statements are required to be delivered for the applicable Fiscal Quarter pursuant to Section 6.01(a) or 6.01(b), as the case may beterm of this Agreement, (b) in each consecutive four fiscal quarter period there will be at least two fiscal quarters in which no Specified Equity Contribution is made, (c) the amount of any Specified Equity Contribution will shall be no greater than the amount required to cause the Borrower Borrowers to be in pro forma compliance with such covenantsfinancial covenant, (c) the Borrowers shall not be permitted to borrow hereunder during the Interim Period until the relevant Specified Equity Contribution has been made, (d) all Specified Equity Contributions will shall be disregarded for purposes of determining any baskets calculated on the calculation basis of Consolidated EBITDA for all contained herein and in the other purposes, including calculating basket levels, financial ratio determinations, pricing Credit Documents and other items governed by reference to Consolidated EBITDA (other than for determining compliance with this Section 7.10), (e) there shall be no more than five (5) Specified Equity Contributions made pro forma or other reduction in the aggregate after the Closing Date, (f) any Term Loans voluntarily prepaid Indebtedness with the proceeds of any Specified Equity Contributions in a manner permitted by this Agreement shall be deemed no longer outstanding Contribution for purposes of determining compliance with this Section 7.10; provided that the financial covenant for the fiscal quarter in no event shall any which such reduction of Consolidated Secured Debt be given effect during the Fiscal Quarter with regard to which the Specified Equity Contribution is made, and (g) upon the Administrative Agent’s receipt of the notice of Borrower’s intent to make a Specified Equity Contribution and until ten (10) Business Days after the day on made or any applicable subsequent periods which the financial statements are required to be delivered for the applicable include such fiscal quarter pursuant to Section 6.01(a) or 6.01(b), as the case may be, neither the Administrative Agent nor any Lender shall accelerate the Finance Obligations or otherwise exercise any remedies available to it during the continuance of a Default or Event of Default under the Loan Documents, including any remedies pursuant to Section 8.02quarter.
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