Common use of Certain Calculations and Tests Clause in Contracts

Certain Calculations and Tests. (a) Notwithstanding anything to the contrary herein, with respect to any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that does not require compliance with a financial ratio or test (including, without limitation, Section 5.2(i) and/or any Total Leverage Ratio test) (any such amounts, the “ Fixed Amounts”) substantially concurrently with any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that requires compliance with a financial ratio or test (including, without limitation, Section 5.2(i) and/or any Total Leverage Ratio) (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that the Fixed Amounts shall be disregarded in the calculation of the financial ratio or test applicable to the Incurrence-Based Amounts in connection with such substantially concurrent incurrence. Notwithstanding anything to the contrary in this Section 1.6, cash proceeds of any simultaneous incurrence of Indebtedness shall be disregarded in calculating the amount of Available Cash for purposes of determining whether Indebtedness is permitted to be incurred. (b) Any reference herein or in any other Note Document to the ranking of Liens shall be determined without regard to control of remedies. (c) For all purposes of this Agreement and the calculations subject hereto, at the Borrower’s election, the acquisition of any Person, property, business or assets (and any pro forma events to occur in connection therewith, including the assumption or incurrence of any Indebtedness or Liens and any Run Rate Benefits) shall be deemed to have “occurred” and been “consummated” upon the Borrower or any Subsidiary entering into a binding definitive agreement or letter of intent with respect thereto, and such deemed occurrence shall continue until such transaction is actually consummated or is abandoned or such definitive agreement or letter of intent is otherwise terminated.

Certain Calculations and Tests. (a) Notwithstanding anything in this Agreement or any Loan Document to the contrary hereincontrary, when calculating any applicable ratio or determining other compliance with this Agreement (including the determination of compliance with any provision of this Agreement which requires that no Specified Event of Default, Default or Event of Default has occurred, is continuing or would result therefrom, the accuracy of representations and warranties or the satisfaction of applicable covenants in connection with any action (including a Specified Transaction or any other transaction or plan undertaken or proposed to be undertaken in connection therewith) undertaken in connection with the consummation of a Limited Condition Transaction), the date of determination of such ratio or other compliance (including whether any Specified Event of Default, Default or Event of Default has occurred, is continuing or would result therefrom or the accuracy of representations and warranties (other than, in the case of clause (a) below, the Specified Representations or, at the option of the Borrower, customary European “certain funds” representations) or the satisfaction of applicable covenants) shall, in each case at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election” and such date selected, the “LCT Test Date”), be deemed to be the date that (a) in the case of any acquisition or other Investment (including with respect to any amounts Indebtedness contemplated or incurred in connection therewith), either, at the option of the Borrower, (A) as of the date the definitive acquisition agreement for such acquisition or transactions other Investment is entered into (or consummated) in reliance on a provision of this Agreement that does not require compliance any documentation or agreement with a financial ratio substantially similar effect as a binding acquisition agreement becomes effective) or test (including, without limitation, Section 5.2(iB) and/or any Total Leverage Ratio test) (any such amounts, at the “ Fixed Amounts”) substantially concurrently with any amounts incurred time the relevant acquisition or transactions entered into (or other Investment is consummated) in reliance on a provision of this Agreement that requires compliance with a financial ratio or test (including, without limitation, Section 5.2(i) and/or any Total Leverage Ratio) (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that the Fixed Amounts shall be disregarded in the calculation of the financial ratio or test applicable to the Incurrence-Based Amounts in connection with such substantially concurrent incurrence. Notwithstanding anything to the contrary in this Section 1.6, cash proceeds of any simultaneous incurrence of Indebtedness shall be disregarded in calculating the amount of Available Cash for purposes of determining whether Indebtedness is permitted to be incurred., (b) Any reference herein in the case of any Restricted Payment (including with respect to any Indebtedness contemplated or incurred in any other Note Document to connection therewith), either, at the ranking option of Liens shall be determined without regard to control the Borrower, (A) at the time such Restricted Payment is declared or (B) at the time of remedies.the making of such Restricted Payment and/or (c) For all purposes in the case of this Agreement and the calculations subject heretoany irrevocable Indebtedness repurchase or repayment (including with respect to any Indebtedness contemplated or incurred in connection therewith), either, at the option of the Borrower’s election, (A) at the time of delivery of notice with respect to such repurchase or repayment or (B) at the time of the making of such repurchase or repayment, in each case, after giving effect to the relevant transaction, any related Indebtedness (including the intended use of proceeds thereof) and all other permitted pro forma adjustments on a Pro Forma Basis and if, after such applicable ratios and other provisions are measured on a Pro Forma Basis after giving effect to such Limited Condition Transaction and such other related and specified actions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) as if they occurred at the beginning of the four consecutive fiscal quarter period being used to calculate such financial ratio or otherwise determine compliance with this Agreement ending prior to the LCT Test Date, the acquisition of any PersonBorrower could have taken such action on the relevant LCT Test Date in compliance with such applicable ratios and provisions, property, business or assets (such applicable ratios and any pro forma events to occur in connection therewith, including the assumption or incurrence of any Indebtedness or Liens and any Run Rate Benefits) provisions shall be deemed to have “occurred” and been “consummated” upon complied with. For the Borrower or any Subsidiary entering into a binding definitive agreement or letter avoidance of intent with respect thereto, and such deemed occurrence shall continue until such transaction is actually consummated or is abandoned or such definitive agreement or letter of intent is otherwise terminated.doubt,

Certain Calculations and Tests. (a) Notwithstanding anything in this Agreement or any Loan Document to the contrary, when calculating any applicable ratio or determining other compliance with this Agreement (including the determination of compliance with any provision of this Agreement which requires that no Default or Event of Default has occurred, is continuing or would result therefrom) in connection with a Specified Transaction undertaken in connection with the consummation of a Limited Condition Transaction, the date of determination of such ratio or other applicable covenant and determination of whether any Default or Event of Default has occurred, is continuing or would result therefrom or other applicable covenant, shall, at the option of the Parent (the Parent’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), be deemed to be either (A) the date that the definitive agreements for such Limited Condition Transaction are entered into or (B) solely in connection with an acquisition to which the United Kingdom City Code on Takeovers and Mergers (the “City Code”) applies, the date on which a “Rule 2.7 announcement” of a firm intention to make an offer in respect of a target company is made in compliance with the City Code (any such date, the “LCT Test Date”) and if, after such ratios and other provisions are measured on a Pro Forma Basis after giving effect to such Limited Condition Transaction and the other Specified Transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) as if they occurred at the beginning of the four consecutive fiscal quarter period being used to calculate such financial ratio ending prior to the LCT Test Date, the Parent could have taken such action on the relevant LCT Test Date in compliance with such ratios and provisions, such provisions shall be deemed to have been complied with; provided that, notwithstanding anything to the contrary herein, at the time of a Limited Condition Transaction no Specified Event of Default shall have occurred and be continuing or would result therefrom. For the avoidance of doubt, (x) if any of such ratios are exceeded as a result of fluctuations in such ratio (including due to fluctuations in Consolidated EBITDA of the Parent) at or prior to the consummation of the relevant Limited Condition Transaction, such ratios and other provisions will not be deemed to have been exceeded as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction is permitted hereunder and (y) such ratios and other provisions shall not be tested at the time of consummation of such Limited Condition Transaction or related Specified Transactions. If the Parent has made an LCT Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio or basket availability with respect to any other Specified Transaction on or following the relevant LCT Test Date and prior to the earlier of the date on which such Limited Condition Transaction is consummated, or the date that the definitive agreement for, or “Rule 2.7 announcement” in respect of, as applicable, such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or basket shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated. (b) [Reserved.]. (c) Notwithstanding anything to the contrary herein, with respect to for purposes of the covenants described in Article VII, if any amounts incurred Indebtedness, Lien, Investment, Disposition, Restricted Payment or transactions entered into repayment of Subordinated Debt (or consummateda portion thereof) would be permitted pursuant to one or more provisions described therein, the Parent may divide and classify such Indebtedness, Liens, Investments, Disposition, Restricted Payment or repayment of Subordinated Debt (or a portion thereof) in any manner that complies with the covenants set forth in Article VII, and may later divide and reclassify any such Indebtedness, Lien, Investment, Disposition, Restricted Payment or repayment of Subordinated Debt so long as the Indebtedness, Lien, Investment, Disposition, Restricted Payment or repayment of Subordinated Debt (as so redivided and/or reclassified) would be permitted to be made in reliance on a provision the applicable exception as of this Agreement the date of such redivision or reclassification; provided that does not require compliance with a financial ratio or test (including, without limitation, Section 5.2(i) and/or any Total Leverage Ratio test) (any such amountsdivisions, the “ Fixed Amounts”) substantially concurrently with any amounts incurred or transactions entered into (or consummated) in reliance on classifications, redivisions and/or reclassifications shall only be permitted within a provision specific type of this Agreement that requires compliance with a financial ratio or test (including, without limitation, Section 5.2(i) and/or any Total Leverage Ratio) (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that the Fixed Amounts shall be disregarded in the calculation of the financial ratio or test applicable to the Incurrence-Based Amounts in connection with such substantially concurrent incurrence. Notwithstanding anything to the contrary in this Section 1.6, cash proceeds of any simultaneous incurrence of Indebtedness shall be disregarded in calculating the amount of Available Cash for purposes of determining whether Indebtedness is permitted to be incurred. (b) Any reference herein or in any other Note Document to the ranking of Liens shall be determined without regard to control of remedies. (c) For all purposes of this Agreement and the calculations subject hereto, at the Borrower’s election, the acquisition of any Person, property, business or assets (and any pro forma events to occur in connection therewith, including the assumption or incurrence of any Indebtedness or Liens and any Run Rate Benefits) shall be deemed to have “occurred” and been “consummated” upon the Borrower or any Subsidiary entering into a binding definitive agreement or letter of intent with respect theretocovenant, and such deemed occurrence shall continue until such transaction is actually consummated or is abandoned or such definitive agreement or letter not, for the avoidance of intent is otherwise terminateddoubt, across different types of covenants.

Certain Calculations and Tests. (a) Notwithstanding anything to the contrary herein, with respect to any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement (including, without limitation, Revolving Loans and, to the extent established or incurred under the Free and Clear Incremental Amount, Incremental Facilities and Incremental Equivalent Debt) that does not require compliance with a financial ratio or test (including, without limitation, Section 5.2(i) 6.09 and/or any Total Leverage Ratio test) (any such amounts, the “ “Fixed Amounts”) substantially concurrently with any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that requires compliance with a financial ratio or test (including, without limitation, Section 5.2(i) 6.09 and/or any Total Leverage RatioRatio test) (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that the Fixed Amounts shall be disregarded in the calculation of the financial ratio or test applicable to the Incurrence-Based Amounts in connection with such substantially concurrent incurrence. Notwithstanding anything to the contrary in this Section 1.61.05, cash proceeds of any simultaneous incurrence of Indebtedness shall be disregarded in calculating the amount of Available Cash for purposes of determining whether Indebtedness is permitted to be incurred. (b) For the avoidance of doubt, in connection with the incurrence of any Indebtedness under Section 2.20, the definition of “Required Lenders” shall be calculated on a Pro Forma Basis in accordance with this Section 1.04, Section 2.20 and the definition of “Incremental Cap”; provided that any waiver, amendment or modification obtained on such basis (i) will not become operative until substantially contemporaneously with the incurrence of such Indebtedness, (ii) is not required in order to avoid a covenant Default and (iii) does not affect the rights or duties under this Agreement of Lenders holding Loans or Commitments of any then outstanding Class but not the Lenders in respect of such Indebtedness to be incurred. (a) [Reserved]. (b) Any reference herein or in any other Note Loan Document to the ranking of Liens shall be determined without regard to control of remedies. (c) For all purposes of this Agreement and the calculations subject hereto, at the Borrower’s election, the acquisition of any Person, property, business or assets (and any pro forma events to occur in connection therewith, including the assumption or incurrence of any Indebtedness or Liens and any Run Rate Benefits) shall be deemed to have “occurred” and been “consummated” upon the Borrower or any Subsidiary entering into a binding definitive agreement or letter of intent with respect thereto, and such deemed occurrence shall continue until such transaction is actually consummated or is abandoned or such definitive agreement or letter of intent is otherwise terminated.

Certain Calculations and Tests. (ai) For purposes of determining the permissibility of any action, change, transaction or event that requires a calculation of any financial ratio or test, such financial ratio or test shall be calculated (subject to Section 1.3 above) at the time such action is taken (subject to Section 1.3 above), such change is made, such transaction is consummated or such event occurs, as the case may be, and no Default or Event of Default shall be deemed to have occurred solely as a result of a change in such financial ratio or test occurring after such calculation. (ii) Notwithstanding anything to the contrary herein, with respect to any amounts amount incurred or transactions transaction entered into (or consummated) in reliance on a provision of this Agreement that does not require compliance with a financial ratio or test (including, without limitation, Section 5.2(i) and/or any Total Leverage Ratio test) (any such amountsamount, the “ a “Fixed AmountsAmount”) substantially concurrently with any amounts amount incurred or transactions transaction entered into (or consummated) in reliance on a provision of this Agreement that requires compliance with a financial ratio or test (including, without limitation, Section 5.2(i) and/or any Total Leverage Ratio) (any such amountsamount, the an “Incurrence-Based AmountsAmount”), it is understood and agreed that (i) any Fixed Amount (even if part of the Fixed Amounts same transaction or, in the case of Indebtedness the same tranche, as any Incurrence-Based Amount) shall be disregarded in the calculation of the financial ratio or test applicable to the relevant Incurrence-Based Amounts Amount and (ii), but giving full pro forma effect to any increase in connection with such substantially concurrent incurrence. Notwithstanding anything to the contrary in this Section 1.6, cash proceeds of any simultaneous incurrence of Indebtedness shall be disregarded in calculating the amount of Available Cash LTM EBITDA or Trailing EBITDA or consolidated total assets of the U.S. Borrower (or any component thereof) resulting from the applicable transaction consummated in reliance on (or, in the case of Indebtedness, with the use of proceeds of) such Fixed Amount. In connection with any Fixed Amount that is measured on the basis of Trailing EBITDA, the applicable Trailing EBITDA shall be givendetermined giving pro forma effect to any increase in the entireamount thereof resulting from the applicable transaction consummated in reliance on (or, in the case of Indebtedness, with the use of proceeds of) such Fixed Amount. (iii) The increase in any amount secured by any Lien by virtue of the accrual of interest, the accretion of accreted value, the payment of interest or a dividend in the form of additional Indebtedness, amortization of original issue discount and/or any increase in the amount of Indebtedness outstanding solely as a result of any fluctuation in the exchange rate of any applicable currency will not be deemed to be the granting of a Lien for purposes of determining whether Indebtedness is permitted to be incurredSection 0. (b) Any reference herein or in any other Note Document to the ranking of Liens shall be determined without regard to control of remedies. (c) For all purposes of this Agreement and the calculations subject hereto, at the Borrower’s election, the acquisition of any Person, property, business or assets (and any pro forma events to occur in connection therewith, including the assumption or incurrence of any Indebtedness or Liens and any Run Rate Benefits) shall be deemed to have “occurred” and been “consummated” upon the Borrower or any Subsidiary entering into a binding definitive agreement or letter of intent with respect thereto, and such deemed occurrence shall continue until such transaction is actually consummated or is abandoned or such definitive agreement or letter of intent is otherwise terminated.