Common use of Right to Cure Financial Covenant Non-Compliance Clause in Contracts

Right to Cure Financial Covenant Non-Compliance. Notwithstanding anything to the contrary contained in Section 10.01 or Section 10.02, if: (a) the Borrower fails to comply with the requirements of Section 9.01(a) or Section 9.01(b) as of the last day of any Rolling Period; and (b) during the period (the “Cure Period”) beginning ten (10) Business Days prior to such day, and ending ten (10) Business Days after the date on which financial statements as of the last day of, or covering any period ending on the last day of, such Rolling Period are required to be delivered pursuant to Section 8.01, the Borrower receives a Specified EBITDAX Equity Contribution and/or a Specified Current Asset Equity Contribution; then, to the extent applicable, Consolidated EBITDAX for the last fiscal quarter of such Rolling Period shall, for purposes of Section 9.01(a), be deemed increased by the amount of the net cash proceeds from such Specified EBITDAX Equity Contribution and/or current assets as of the last day of such Rolling Period shall, for purposes of Section 9.01(b), be deemed increased by the amount of the net cash proceeds from such Specified Current Asset Equity Contribution. The parties hereby acknowledge and agree (i) that this Section 10.03 may not be relied on or used for purposes of determining permitted amounts with respect to any covenants in this Agreement other than Section 9.01, (ii) that any such deemed increase to Consolidated EBITDAX in any fiscal quarter shall be applied solely for the purpose of determining the existence of a Default or Event of Default under Section 9.01(a) with respect to any Rolling Period that includes such fiscal quarter and not for any other purpose under any Loan Document, and (iii) any such deemed increase to current assets shall be applied solely for the purpose of determining the existence of a Default or Event of Default under Section 9.01(b) as of the last day of such Rolling Period and not for any other purpose under any Loan Document. If, after receipt of any Specified EBITDAX Equity Contribution and/or any Specified Current Asset Equity Contribution and the recalculations pursuant to this Section 10.03, the Borrower shall then be in compliance with the requirements of Section 9.01(a) and/or Section 9.01(b), as applicable, the Borrower shall be deemed to have satisfied the requirements of Section 9.01(a) and/or Section 9.01(b), as applicable, as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, and the applicable Default and Event of Default under Section 10.01 that had occurred shall be deemed cured; provided that (i) the equity cure provisions in this Section 10.03 may not be used with respect to more than five (5) financial covenant test dates in the aggregate during the term of this Agreement (it being understood that if, with respect to any fiscal quarter (or last day thereof, as applicable), the Borrower receives both a Specified EBITDAX Equity Contribution and a Specified Current Asset Equity Contribution for the benefit of the same fiscal quarter (or last day thereof, as applicable), such occurrence will only count as one financial covenant test date for purposes of this clause (i)), (ii) with respect to each four fiscal quarter period, there shall be at least two fiscal quarters in respect of which neither a Specified EBITDAX Equity Contribution nor a Specified Current Asset Equity Contribution is made, (iii) the amount of any Specified EBITDAX Equity Contribution shall be no greater than the amount required to cause the Borrower to be in compliance with Section 9.01(a) for any applicable period, (iv) the amount of any Specified Current Asset Equity Contribution shall be no greater than the amount required to cause the Borrower to be in compliance with Section 9.01(b) for any applicable period, (v) solely with respect to any Rolling Period for which a Specified EBITDAX Equity Contribution is received in order to cure, (A) there shall be no pro forma or actual reduction in Debt with the proceeds of any Specified EBITDAX Equity Contribution for determining compliance with Section 9.01(a) (even if the proceeds of any Specified EBITDAX Equity Contribution are actually used to repay Debt, regardless of whether the proceeds of the Specified EBITDAX Equity Contribution are received before or after the last day of such Rolling Period), (B) the amount of such Specified EBITDAX Equity Contribution shall not be included in the calculation of current assets as of the last day of such Rolling Period for determining compliance with Section 9.01(b), regardless of whether the proceeds of the Specified EBITDAX Equity Contribution are received before or after the last day of such Rolling Period, and (C) there shall be no pro forma or actual reduction in current liabilities with the proceeds of any Specified EBITDAX Equity Contribution for determining compliance with Section 9.01(b) (even if the proceeds of any Specified EBITDAX Equity Contribution are actually used to pay current liabilities, regardless of whether the proceeds of the Specified EBITDAX Equity Contribution are received before or after the last day of such Rolling Period), (vi) in no event shall there be any increase or deemed increase in Consolidated EBITDAX with the amount of any Specified Current Asset Equity Contribution, and (vii) for the purpose of any calculation of EBITDAX on an annualized basis hereunder, if the Borrower requests to increase EBITDAX for the fiscal quarter most recently ended by an amount equal to a Specified EBITDAX Equity Contribution pursuant to Section 9.01(a), then such increase shall be included in the calculation of EBITDAX for such fiscal quarter (and any period that includes such fiscal quarter) only after first calculating EBITDAX on an annualized basis without giving effect to such increase (i.e., the Specified EBITDAX Equity Contribution shall not be annualized).

Right to Cure Financial Covenant Non-Compliance. Notwithstanding anything to the contrary contained in Section 10.01 9.1 or Section 10.029.2, if: (a) in the Borrower event Company fails to comply with the requirements of financial covenants set forth in Section 9.01(a) 8.1 or Section 9.01(b) as of the last day of any Rolling Period; and (b) during the period (the “Cure Period”) beginning ten (10) Business Days prior to such day, and ending ten (10) Business Days after the date on which financial statements as of the last day of, or covering any period ending on the last day of, such Rolling Period are required to be delivered pursuant to Section 8.01, the Borrower receives a Specified EBITDAX Equity Contribution and/or a Specified Current Asset Equity Contribution; then, to the extent applicable, Consolidated EBITDAX for the last fiscal quarter of such Rolling Period shall, for purposes of Section 9.01(a), be deemed increased by the amount of the net cash proceeds from such Specified EBITDAX Equity Contribution and/or current assets 8.2 as of the last day of such Rolling Period shallfiscal quarter, subject to the terms and conditions hereof, Company shall have the right (the “Cure Right”) from the last day of the applicable fiscal quarter until the expiration of the 10th Business Day subsequent to the date by which the financial statements for purposes the last month of such fiscal quarter are required to be delivered to Administrative Agent pursuant to Section 9.01(b6.1(b), be deemed increased by to receive a Specified EBITDA Equity Contribution in an aggregate amount equal to, but not greater than, the amount necessary to cause Company to be in compliance with Section 8.1 and Section 8.2 for such period (hereinafter, the “Cure Amount”), and upon the receipt by Company of the net cash proceeds from such Specified Current Asset Equity Contribution. The parties hereby acknowledge and agree (i) that this Section 10.03 may not thereof, the financial covenants shall then be relied on or used recalculated giving effect to the following pro forma adjustments: Annualized EBITDA and/or EBITDA shall be calculated for purposes of determining permitted amounts with respect to any covenants in this Agreement other than Section 9.01, (ii) that any such deemed increase to Consolidated EBITDAX in any the applicable fiscal quarter shall be applied and any four fiscal quarter period that contains such fiscal quarter, solely for the purpose of determining measuring compliance with the existence of a Default or Event of Default under Section 9.01(a) with respect to any Rolling Period that includes such fiscal quarter financial covenants and not for any other purpose under any Loan Documentthis Agreement, and (iii) any such deemed increase to current assets shall be applied solely for the purpose of determining the existence of a Default or Event of Default under Section 9.01(b) as of the last day of such Rolling Period and not for any other purpose under any Loan Document. If, after receipt of any Specified EBITDAX Equity Contribution and/or any Specified Current Asset Equity Contribution and the recalculations pursuant to this Section 10.03, the Borrower shall then be in compliance with the requirements of Section 9.01(a) and/or Section 9.01(b), as applicable, the Borrower shall be deemed to have satisfied the requirements of Section 9.01(a) and/or Section 9.01(b), as applicable, as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, and the applicable Default and Event of Default under Section 10.01 that had occurred shall be deemed cured; provided that (i) the equity cure provisions in this Section 10.03 may not be used with respect to more than five (5) financial covenant test dates in the aggregate during the term of this Agreement (it being understood that if, with respect to any fiscal quarter (or last day thereof, as applicable), the Borrower receives both a Specified EBITDAX Equity Contribution and a Specified Current Asset Equity Contribution for the benefit of the same fiscal quarter (or last day thereof, as applicable), such occurrence will only count as one financial covenant test date for purposes of this clause (i)), (ii) with respect to each four fiscal quarter period, there shall be at least two fiscal quarters in respect of which neither a Specified EBITDAX Equity Contribution nor a Specified Current Asset Equity Contribution is made, (iii) the amount of any Specified EBITDAX Equity Contribution shall be no greater than the amount required to cause the Borrower to be in compliance with Section 9.01(a) for any applicable period, (iv) the amount of any Specified Current Asset Equity Contribution shall be no greater than the amount required to cause the Borrower to be in compliance with Section 9.01(b) for any applicable period, (v) solely with respect to any Rolling Period for which a Specified EBITDAX Equity Contribution is received in order to cure, (A) there shall be no pro forma or actual reduction in Debt with the proceeds of any Specified EBITDAX Equity Contribution for determining compliance with Section 9.01(a) (even if the proceeds of any Specified EBITDAX Equity Contribution are actually used to repay Debt, regardless of whether the proceeds of the Specified EBITDAX Equity Contribution are received before or after the last day of such Rolling Period), (B) the amount of such Specified EBITDAX Equity Contribution shall not be included in the calculation of current assets as of the last day of such Rolling Period for determining compliance with Section 9.01(b), regardless of whether the proceeds of the Specified EBITDAX Equity Contribution are received before or after the last day of such Rolling Period, and (C) there shall be no pro forma or actual reduction in current liabilities with the proceeds of any Specified EBITDAX Equity Contribution for determining compliance with Section 9.01(b) (even if the proceeds of any Specified EBITDAX Equity Contribution are actually used to pay current liabilities, regardless of whether the proceeds of the Specified EBITDAX Equity Contribution are received before or after the last day of such Rolling Period), (vi) in no event shall there be any increase or deemed increase in Consolidated EBITDAX with the amount of any Specified Current Asset Equity Contribution, and (vii) for the purpose of any calculation of EBITDAX on an annualized basis hereunder, if the Borrower requests to increase EBITDAX for the fiscal quarter most recently ended by an amount equal to a Specified EBITDAX Equity Contribution pursuant the Cure Amount (it being understood that, with respect to Section 9.01(a), then such increase shall be included in the calculation of EBITDAX for such fiscal quarter (and any period that includes such fiscal quarter) only after first calculating EBITDAX on an annualized basis without giving effect to such increase (i.e.Annualized EBITDA, the Specified EBITDAX Equity Contribution shall not Cure Amount will be annualizedadded after the amount of EBITDA set forth in clause (a) of the definition of Annualized EBITDA has been calculated for the applicable fiscal month for which Company has failed to comply with the financial covenants set forth in Section 8.2).;

Right to Cure Financial Covenant Non-Compliance. (a). Notwithstanding anything to the contrary contained in Section 10.01 9.1 or Section 10.029.2, if: (a) in the Borrower event Company fails to comply with the requirements of financial covenants set forth in Section 9.01(a) 8.1 or Section 9.01(b) as of the last day of any Rolling Period; and (b) during the period (the “Cure Period”) beginning ten (10) Business Days prior to such day, and ending ten (10) Business Days after the date on which financial statements as of the last day of, or covering any period ending on the last day of, such Rolling Period are required to be delivered pursuant to Section 8.01, the Borrower receives a Specified EBITDAX Equity Contribution and/or a Specified Current Asset Equity Contribution; then, to the extent applicable, Consolidated EBITDAX for the last fiscal quarter of such Rolling Period shall, for purposes of Section 9.01(a), be deemed increased by the amount of the net cash proceeds from such Specified EBITDAX Equity Contribution and/or current assets 8.2 as of the last day of such Rolling Period shallfiscal quarter, subject to the terms and conditions hereof, Company shall have the right (the “Cure Right”) from the last day of the applicable fiscal quarter until the expiration of the 10th Business Day subsequent to the date by which the financial statements for purposes the last month of such fiscal quarter are required to be delivered to Administrative Agent pursuant to Section 9.01(b6.1(b), be deemed increased by to receive a Specified EBITDA Equity Contribution in an aggregate amount equal to, but not greater than, the amount necessary to cause Company to be in compliance with Section 8.1 and Section 8.2 for such period (hereinafter, the “Cure Amount”), and upon the receipt by Company of the net cash proceeds from such Specified Current Asset Equity Contribution. The parties hereby acknowledge and agree (i) that this Section 10.03 may not thereof, the financial covenants shall then be relied on or used recalculated giving effect to the following pro forma adjustments: Annualized EBITDA and/or EBITDA shall be calculated for purposes of determining permitted amounts with respect to any covenants in this Agreement other than Section 9.01, (ii) that any such deemed increase to Consolidated EBITDAX in any the applicable fiscal quarter shall be applied and any four fiscal quarter period that contains such fiscal quarter, solely for the purpose of determining measuring compliance with the existence of a Default or Event of Default under Section 9.01(a) with respect to any Rolling Period that includes such fiscal quarter financial covenants and not for any other purpose under any Loan Documentthis Agreement, and (iii) any such deemed increase to current assets shall be applied solely for the purpose of determining the existence of a Default or Event of Default under Section 9.01(b) as of the last day of such Rolling Period and not for any other purpose under any Loan Document. If, after receipt of any Specified EBITDAX Equity Contribution and/or any Specified Current Asset Equity Contribution and the recalculations pursuant to this Section 10.03, the Borrower shall then be in compliance with the requirements of Section 9.01(a) and/or Section 9.01(b), as applicable, the Borrower shall be deemed to have satisfied the requirements of Section 9.01(a) and/or Section 9.01(b), as applicable, as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, and the applicable Default and Event of Default under Section 10.01 that had occurred shall be deemed cured; provided that (i) the equity cure provisions in this Section 10.03 may not be used with respect to more than five (5) financial covenant test dates in the aggregate during the term of this Agreement (it being understood that if, with respect to any fiscal quarter (or last day thereof, as applicable), the Borrower receives both a Specified EBITDAX Equity Contribution and a Specified Current Asset Equity Contribution for the benefit of the same fiscal quarter (or last day thereof, as applicable), such occurrence will only count as one financial covenant test date for purposes of this clause (i)), (ii) with respect to each four fiscal quarter period, there shall be at least two fiscal quarters in respect of which neither a Specified EBITDAX Equity Contribution nor a Specified Current Asset Equity Contribution is made, (iii) the amount of any Specified EBITDAX Equity Contribution shall be no greater than the amount required to cause the Borrower to be in compliance with Section 9.01(a) for any applicable period, (iv) the amount of any Specified Current Asset Equity Contribution shall be no greater than the amount required to cause the Borrower to be in compliance with Section 9.01(b) for any applicable period, (v) solely with respect to any Rolling Period for which a Specified EBITDAX Equity Contribution is received in order to cure, (A) there shall be no pro forma or actual reduction in Debt with the proceeds of any Specified EBITDAX Equity Contribution for determining compliance with Section 9.01(a) (even if the proceeds of any Specified EBITDAX Equity Contribution are actually used to repay Debt, regardless of whether the proceeds of the Specified EBITDAX Equity Contribution are received before or after the last day of such Rolling Period), (B) the amount of such Specified EBITDAX Equity Contribution shall not be included in the calculation of current assets as of the last day of such Rolling Period for determining compliance with Section 9.01(b), regardless of whether the proceeds of the Specified EBITDAX Equity Contribution are received before or after the last day of such Rolling Period, and (C) there shall be no pro forma or actual reduction in current liabilities with the proceeds of any Specified EBITDAX Equity Contribution for determining compliance with Section 9.01(b) (even if the proceeds of any Specified EBITDAX Equity Contribution are actually used to pay current liabilities, regardless of whether the proceeds of the Specified EBITDAX Equity Contribution are received before or after the last day of such Rolling Period), (vi) in no event shall there be any increase or deemed increase in Consolidated EBITDAX with the amount of any Specified Current Asset Equity Contribution, and (vii) for the purpose of any calculation of EBITDAX on an annualized basis hereunder, if the Borrower requests to increase EBITDAX for the fiscal quarter most recently ended by an amount equal to a Specified EBITDAX Equity Contribution pursuant the Cure Amount (it being understood that, with respect to Section 9.01(a), then such increase shall be included in the calculation of EBITDAX for such fiscal quarter (and any period that includes such fiscal quarter) only after first calculating EBITDAX on an annualized basis without giving effect to such increase (i.e.Annualized EBITDA, the Specified EBITDAX Equity Contribution shall not Cure Amount will be annualizedadded after the amount of EBITDA set forth in clause (a) of the definition of Annualized EBITDA has been calculated for the applicable fiscal month for which Company has failed to comply with the financial covenants set forth in Section 8.2).;

Right to Cure Financial Covenant Non-Compliance. Notwithstanding anything to the contrary contained in Section 10.01 9.1 or Section 10.029.2, if: (a) in the Borrower event Company fails to comply with the requirements of financial covenants set forth in Section 9.01(a) 8.1 or Section 9.01(b) as of the last day of any Rolling Period; and (b) during the period (the “Cure Period”) beginning ten (10) Business Days prior to such day, and ending ten (10) Business Days after the date on which financial statements as of the last day of, or covering any period ending on the last day of, such Rolling Period are required to be delivered pursuant to Section 8.01, the Borrower receives a Specified EBITDAX Equity Contribution and/or a Specified Current Asset Equity Contribution; then, to the extent applicable, Consolidated EBITDAX for the last fiscal quarter of such Rolling Period shall, for purposes of Section 9.01(a), be deemed increased by the amount of the net cash proceeds from such Specified EBITDAX Equity Contribution and/or current assets 8.2 as of the last day of such Rolling Period shallfiscal quarter, subject to the terms and conditions hereof, Company shall have the right (the “Cure Right”) from the last day of the applicable fiscal quarter until the expiration of the 10th Business Day subsequent to the date by which the financial statements for purposes the last month of such fiscal quarter are required to be delivered to Administrative Agent pursuant to Section 9.01(b6.1(b), be deemed increased by to receive a Specified EBITDA Equity Contribution in an aggregate amount equal to, but not greater than, the amount necessary to cause Company to be in compliance with Section 8.1 and Section 8.2 for such period (hereinafter, the “Cure Amount”), and upon the receipt by Company of the net cash proceeds from such Specified Current Asset Equity Contribution. The parties hereby acknowledge and agree thereof, the financial covenants shall then be recalculated giving effect to the following pro forma adjustments: (ia) that this Section 10.03 may not Annualized EBITDA and/or EBITDA shall be relied on or used calculated for purposes of determining permitted amounts with respect to any covenants in this Agreement other than Section 9.01, (ii) that any such deemed increase to Consolidated EBITDAX in any the applicable fiscal quarter shall be applied and any four fiscal quarter period that contains such fiscal quarter, solely for the purpose of determining measuring compliance with the existence of a Default or Event of Default under Section 9.01(a) with respect to any Rolling Period that includes such fiscal quarter financial covenants and not for any other purpose under any Loan Documentthis Agreement, and by an amount equal to the Cure Amount (iiiit being understood that, with respect to the calculation of Annualized EBITDA, the Cure Amount will be added after the amount of EBITDA set forth in clause (a) any such deemed increase to current assets shall be applied solely of the definition of Annualized EBITDA has been calculated for the purpose of determining applicable fiscal month for which Company has failed to comply with the existence of a Default or Event of Default under financial covenants set forth in Section 9.01(b8.2); (b) as of the last day of such Rolling Period and not for any other purpose under any Loan Document. Ifif, after receipt of any Specified EBITDAX Equity Contribution and/or any Specified Current Asset Equity Contribution and giving effect to the recalculations pursuant to this Section 10.03foregoing recalculations, the Borrower Company shall then be in compliance with the requirements of Section 9.01(a) and/or Section 9.01(b)all financial covenants, as applicable, the Borrower Company shall be deemed to have satisfied the requirements of Section 9.01(a) and/or Section 9.01(b), as applicable, been in compliance with such financial covenants as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, and the applicable breach, Default and or Event of Default under Section 10.01 of such financial covenants that had occurred shall be deemed cured; provided that not to have occurred for this purpose of the Agreement; (c) notwithstanding anything herein to the contrary, (i) the equity cure provisions in this Section 10.03 may not be used with respect to more than five (5) financial covenant test dates in the aggregate during the term of this Agreement (it being understood that if, with respect to any each four consecutive fiscal quarter (or last day thereof, as applicable), the Borrower receives both a Specified EBITDAX Equity Contribution and a Specified Current Asset Equity Contribution for the benefit period of the same fiscal quarter (or last day thereof, as applicable), such occurrence will only count as one financial covenant test date for purposes of this clause (i)), (ii) with respect to each four fiscal quarter period, Company there shall be at least two fiscal quarters in respect which the Cure Right is not exercised, (ii) during the term of which neither a Specified EBITDAX Equity Contribution nor a Specified Current Asset Equity Contribution is madethis Agreement, the Cure Right shall not be exercised more than five (5) times, (iii) the amount of any Specified EBITDAX Equity Contribution Cure Amount shall be no greater than the amount required to cause for purposes of complying with the Borrower financial covenants and any amounts in excess thereof shall not be deemed to be in compliance with Section 9.01(a) for any applicable period, a Cure Amount and (iv) the amount of any Specified Current Asset Equity Contribution shall be no greater than the amount required to cause the Borrower to be in compliance with Section 9.01(b) for any applicable period, (v) solely with respect to any Rolling Period for which a Specified EBITDAX Equity Contribution is received in order to cure, (A) there shall be no pro forma or actual reduction in Debt with the proceeds of any Cure Amount. Notwithstanding any other provision in this Agreement to the contrary, the Cure Amount received pursuant to any exercise of the Cure Right shall be disregarded for purposes of determining the satisfaction of any Default or Event of Default condition, any financial ratio-based conditions or tests, the Applicable Margin or other pricing or any available basket under Article 7 of this Agreement; and (d) the mandatory prepayment of the Loans made pursuant to Section 2.9(c) with respect to any cash proceeds of Specified EBITDAX EBITDA Equity Contribution shall not serve as a reduction to Debt for determining compliance with Section 9.01(a) purposes of calculating the Leverage Ratio for the four fiscal quarter period then ending (even if the proceeds of any Specified EBITDAX EBITDA Equity Contribution are actually used to repay Debt, regardless of whether the proceeds of the any Specified EBITDAX EBITDA Equity Contribution are received before or after the last day of such Rolling Period), (B) the amount of such Specified EBITDAX Equity Contribution shall not be included in the calculation of current assets as of the last day of such Rolling Period for determining compliance with Section 9.01(b), regardless of whether the proceeds of the Specified EBITDAX Equity Contribution are received before or after the last day of such Rolling Period, and (C) there shall be no pro forma or actual reduction in current liabilities with the proceeds of any Specified EBITDAX Equity Contribution for determining compliance with Section 9.01(b) (even if the proceeds of any Specified EBITDAX Equity Contribution are actually used to pay current liabilities, regardless of whether the proceeds of the Specified EBITDAX Equity Contribution are received before or after the last day of such Rolling Period), (vi) in no event shall there be any increase or deemed increase in Consolidated EBITDAX with the amount of any Specified Current Asset Equity Contribution, and (vii) for the purpose of any calculation of EBITDAX on an annualized basis hereunder, if the Borrower requests to increase EBITDAX for the fiscal quarter most recently ended by an amount equal to a Specified EBITDAX Equity Contribution pursuant to Section 9.01(a), then such increase shall be included in the calculation of EBITDAX for such fiscal quarter (and any period that includes such fiscal quarter) only after first calculating EBITDAX on an annualized basis without giving effect to such increase (i.e., the Specified EBITDAX Equity Contribution shall not be annualizedperiod).