Certain Calculations and Tests. (a) Notwithstanding anything in this Agreement or any Loan Document to the contrary, for purposes of (i) determining compliance with any provision in this Agreement or any Loan Document that requires the calculation of any financial ratio or test (including, without limitation, Section 6.10, any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, Total Net Leverage Ratio test, any Interest Coverage Ratio test, and/or any other financial ratio or test), (ii) determining compliance with representations and warranties or the requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (iii) testing any cap measured as a percentage of Consolidated EBITDA or any other financial metric or by reference to the Available Amount, or any other availability of a “basket” or exception set forth in this Agreement, in each case, in connection with a Limited Condition Transaction, the date of determination, at the election of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), will be deemed to be (1) in the case of any acquisition or other Investment, Disposition, incurrence of Indebtedness or any transaction related to the foregoing, in each case not prohibited hereunder, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) either (x) the execution of the definitive acquisition agreements or other binding contracts or agreements, or the establishment of a commitment, as applicable, with respect to such acquisition, Investment, Disposition, Indebtedness or related transaction (or, solely in connection with an acquisition to which the United Kingdom City Code on Takeovers and Mergers applies, the date on which a “Rule 2.7 Announcement” of a firm intention to make an offer or similar announcement or determination in another jurisdiction subject to laws similar to the City Code in respect of such target company made in compliance with the City Code or similar laws or practices in other jurisdictions (a “Public Offer”)) or (y) the consummation of such acquisition, Investment, Disposition, incurrence of Indebtedness or related transaction, (2) in the case of any Restricted Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) the declaration of such Restricted Payment or (y) the making of such Restricted Payment and (3) in the case of any Restricted Debt Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Debt Payment or (y) the making of such Restricted Debt Payment (the applicable date pursuant to clause (1), (2) or (3) above, as applicable, the “LCT Test Date”), and if, after such ratios and other provisions are measured on a Pro Forma Basis (disregarding for the purposes of such pro forma calculation any Borrowing under the RC Facility or any other revolving facility) after giving effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) and, at the election of the Borrower, any other acquisition or similar Investment, Restricted Payment, Restricted Debt Payment or Disposition that has not been consummated but with respect to which the Borrower has elected to test any applicable condition prior to the date of consummation in accordance with this Section 1.09(a), as if they had occurred at the beginning of the most recently completed Test Period ending prior to the LCT Test Date, the Borrower could have taken such action on the relevant LCT Test Date in compliance with such ratios, representation, warranty, absence of Default or Event of Default or “basket”, such ratio, representation, warranty, absence of Default or Event of Default or “basket” shall be deemed to have been complied with. For the avoidance of doubt, if the Borrower has made an LCT Election and (x) any of the ratios or “baskets” for which compliance was determined or tested as of the LCT Test Date are exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of fluctuations in any such ratio or “basket” (including due to fluctuations of the target of any Limited Condition Transaction) at or prior to the consummation of the relevant Limited Condition Transaction, such “baskets” or ratios and other provisions will be deemed not to have been exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction is permitted hereunder (provided, for the avoidance of doubt, that the Borrower or any other Group Member may rely upon any improvement in any such ratio or “basket” availability) and (y) in connection with any subsequent calculation of any ratio or “basket” availability on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement or Public Offer for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or “basket” availability shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of debt and the use of proceeds thereof (but without netting the cash proceeds thereof)) had been consummated. The provisions of this Section 1.09(a) shall, for the avoidance of doubt, apply in respect of the incurrence of any Incremental Facility. For the avoidance of doubt, the making of an LCT Election shall not require notice to the Administrative Agent or any other Person. For the further avoidance of doubt, in the absence of an LCT Election, unless specifically stated in this Agreement to be otherwise, all determinations of (x) compliance with any financial ratio or test (including, without limitation, Section 6.10, any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, any Total Net Leverage Ratio test, any Interest Coverage Ratio test, and/or any other financial ratio or test) and/or any cap expressed as a percentage of Consolidated EBITDA or any other financial metric, (y) the accuracy of any representation and warranties, or any requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (z) any availability test under any “baskets” shall, in each case, be made as of the applicable date of the consummation of the Specified Transaction or the time the applicable action is taken, change is made, transaction is consummated or event occurs, as the case may be, and no Default or Event of Default shall occur solely as a result of a change in any such financial ratio or test, cap, financial metric, or “basket” availability occurring after such time (b) 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 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Fixed Amounts”) substantially concurrently (or as part of a series of related transactions) 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 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that (i) the Fixed Amounts (and any cash proceeds thereof and any concurrent borrowing under a revolving facility, including a Borrowing consisting of RC Facility Loans or any other revolving facility) shall be disregarded, and the incurrence of the Incurrence-Based Amount shall be calculated, first without giving effect to any Fixed Amount, but giving full pro forma effect to the use of proceeds of such Fixed Amount and (ii) the incurrence of the Fixed Amount shall be calculated thereafter. (c) Notwithstanding anything to the contrary herein, for purposes of the covenants described in Article VI, if any transaction or action would be permitted pursuant to one or more provisions described therein, the Borrower may divide and classify such transaction or action within any covenant in any manner that complies with the covenants set forth therein, and may later divide and reclassify any such transaction or action so long as the transaction or action (as so divided and/or reclassified) would be permitted to be made in reliance on the applicable exception as of the date of such reclassification; provided that if any financial ratio or test governing any applicable Incurrence-Based Amount would be satisfied in any subsequent period following the utilization of any Fixed Amount, such reclassification shall be deemed to have automatically occurred if not elected by the Borrower.
Appears in 4 contracts
Samples: First Lien Credit Agreement (Clarios International Inc.), First Lien Credit Agreement (Clarios International Inc.), First Lien Credit Agreement (Clarios International Inc.)
Certain Calculations and Tests. (a) Notwithstanding anything to the contrary herein (including in connection with any calculation made on a Pro Forma Basis), to the extent that the terms of this Agreement or any Loan Document to the contrary, for purposes of require (i) determining compliance with any provision in this Agreement or any Loan Document that requires the calculation of any financial ratio or test (including, without limitation, Section 6.106.15(a), any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, Total Net Leverage Ratio test, any test and/or Consolidated Cash Interest Coverage Ratio test, ) and/or any other financial ratio basket (including any basket measured as a percentage of Consolidated Adjusted EBITDA or test), Consolidated Total Assets) or (ii) determining compliance with representations and warranties the accuracy of any representation or the requirement regarding warranty or the absence of a Default or Event of Default (or any type of Default or Event of Default) or (iii) testing any cap measured as a percentage condition to (A) the consummation of Consolidated EBITDA or any other financial metric or by reference to the Available Amount, or any other availability of a “basket” or exception set forth in this Agreement, in each case, transaction in connection with any acquisition or similar Investment (including the assumption or incurrence of Indebtedness) the consummation of which is not contingent upon the availability of, or obtaining, third party financing, (B) the irrevocable declaration of any Restricted Payment and/or (C) the making of any Restricted Debt Payment requiring irrevocable notice in advance of such Restricted Debt Payment (such action pursuant to clauses (A) through (C), a “Limited Condition Transaction”), the date determination of determinationwhether the relevant condition is satisfied may be made, at the election of the Borrower Representative (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an a “LCT Election”), will be deemed to be (1) in the case of any acquisition or other Investment, Disposition, similar Investment (including the assumption or incurrence of Indebtedness or any transaction related to the foregoing, in each case not prohibited hereunderconnection therewith), at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) either (x) the execution of the definitive acquisition agreements or other binding contracts or agreements, or the establishment of a commitment, as applicable, agreement with respect to such acquisition, Investment, Disposition, Indebtedness or related transaction (or, solely in connection with an acquisition to which the United Kingdom City Code on Takeovers and Mergers applies, the date on which a “Rule 2.7 Announcement” of a firm intention to make an offer or similar announcement or determination in another jurisdiction subject to laws similar to the City Code in respect of such target company made in compliance with the City Code or similar laws or practices in other jurisdictions (a “Public Offer”)) Investment or (y) the consummation of such acquisition, acquisition or similar Investment, Disposition, incurrence of Indebtedness or related transaction, (2) in the case of any Restricted PaymentPayment (including the assumption or incurrence of Indebtedness in connection therewith), at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) either (x1) the declaration of such Restricted Payment (so long as such Restricted Payment is actually made within 90 days following the date of declaration) or (y2) the making of such Restricted Payment and and/or (3) in the case of any Restricted Debt Payment that is made within 90 days of delivery of irrevocable (which may be conditional) notice with respect to such Restricted Debt Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) delivery of irrevocable (which may be conditional) such notice with respect to such Restricted Debt Payment or (y) the making of such Restricted Debt Payment (the applicable date pursuant to clause (1), (2) or (3) above), as applicable, the “LCT Test Date”), and ifin each case, after such ratios and other provisions are measured on a Pro Forma Basis (disregarding for the purposes of such pro forma calculation any Borrowing under the RC Facility or any other revolving facilityI) after giving effect to the Limited Condition Transaction relevant acquisition, Restricted Payment and/or Restricted Debt Payment on a Pro Forma Basis, (II) based on the most recently ended Test Period and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereofIII) and, at the election of the BorrowerBorrower Representative, give effect on a Pro Forma Basis to any other acquisition prospective Limited Condition Acquisitions or similar Investment, Restricted Payment, Restricted Debt Payment or Disposition that has not been consummated but with respect to Investments for which the Borrower has elected to test any applicable condition prior to the date of consummation in accordance with this Section 1.09(a), as if they had occurred at the beginning of the most recently completed Test Period ending prior to the LCT Test Date, the Borrower could have taken such action on the relevant LCT Test Date in compliance with such ratios, representation, warranty, absence of Default or Event of Default or “basket”, such ratio, representation, warranty, absence of Default or Event of Default or “basket” shall be deemed to definitive agreements have been complied withexecuted. For the avoidance of doubt, (i) if the Borrower has made Representative makes an LCT Election and (x) any Election, no Default or Event of the ratios or “baskets” for which compliance was determined or tested as of the LCT Test Date are exceeded (or, with respect to the Interest Coverage Ratio, not reached) Default shall occur solely as a result of fluctuations a change in any such the applicable ratio or “basket” test after the time such LCT Election was made and (including due ii) the provisions of this clause (a) shall also apply to fluctuations of any Incremental Facility. If the target of Borrower Representative has made a LCT Election for any Limited Condition Transaction) at or prior to the consummation of the relevant Limited Condition Transaction, such “baskets” or ratios and other provisions will be deemed not to have been exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction is permitted hereunder (provided, for the avoidance of doubt, that the Borrower or any other Group Member may rely upon any improvement in any such ratio or “basket” availability) and (y) then in connection with any subsequent calculation determination of compliance with any financial ratio or “basket” availability test (including, without limitation, Section 6.15(a), any First Lien Leverage Ratio test, Secured Leverage Ratio test, Total Leverage Ratio test and/or Consolidated Cash Interest Coverage Ratio test) and/or any basket (including any basket measured as a percentage of Consolidated Adjusted EBITDA or Consolidated Total Assets) with respect to the incurrence of Indebtedness or Liens, or the making of Restricted Debt Payments on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement or Public Offer for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, compliance with any such financial ratio or “basket” availability test and/or basket shall be calculated tested by calculating the availability under such financial ratio or test and/or basket, as applicable, on a Pro Forma Form Basis assuming such Limited Condition Transaction and any other transactions in connection therewith have been consummated (including any incurrence of debt Indebtedness and the use of proceeds thereof (but without netting the cash proceeds thereof).
(b) had been consummated. The provisions For purposes of this Section 1.09(a) shall, for determining the avoidance of doubt, apply in respect of the incurrence permissibility of any Incremental Facility. For the avoidance action, change, transaction or event that requires a calculation of doubt, the making of an LCT Election shall not require notice to the Administrative Agent or any other Person. For the further avoidance of doubt, in the absence of an LCT Election, unless specifically stated in this Agreement to be otherwise, all determinations of (x) compliance with any financial ratio or test (including, without limitation, Section 6.106.15(a), any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, any Total Net Leverage Ratio test, test and/or any Consolidated Cash Interest Coverage Ratio testtest and/or the amount of Consolidated Adjusted EBITDA or Consolidated Total Assets), and/or any other such financial ratio or test) and/or any cap expressed as a percentage of Consolidated EBITDA or any other financial metric, (y) the accuracy of any representation and warranties, or any requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (z) any availability test under any “baskets” shall, in each case, shall be made as of the applicable date of the consummation of the Specified Transaction or calculated at the time the applicable such action is takentaken (subject to clause (a) 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 occur be deemed to have occurred solely as a result of a change in any such financial ratio or test, cap, financial metric, or “basket” availability test occurring after the time such timeaction is taken, such change is made, such transaction is consummated or such event occurs, as the case may be.
(bc) 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 6.106.15(a), any First Lien Net Leverage Ratio test, any Secured Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Consolidated Cash Interest Coverage Ratio test) (any such amounts, the “Fixed Amounts”) substantially concurrently (or as part of a series of related transactions) 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 6.106.15(a), any First Lien Net Leverage Ratio test, any Secured Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Consolidated Cash Interest Coverage Ratio test) (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that (i) the Fixed Amounts (and any cash proceeds thereof and any concurrent borrowing under a revolving facility, including a Borrowing consisting of RC Facility Loans or any other revolving facility) shall be disregarded, and the incurrence of such amount under the Incurrence-Based Amount shall first be calculated, first calculated without giving effect to any amount incurred under the Fixed Amount, but giving full pro forma effect on Pro Forma Basis to the use of proceeds of all such Fixed Amount amounts and concurrent related transactions and (ii) the thereafter, incurrence of the portion of such amount under the Fixed Amount shall be calculated thereafter.
calculated. The Borrower Representative may select that amounts incurred or transactions entered into (cor consummated) Notwithstanding anything to the contrary herein, for purposes of the covenants described be incurred or entered into (or consummated) in Article VI, if any transaction or action would be permitted pursuant to reliance on one or more provisions described therein, the Borrower may divide and classify such transaction or action within of any covenant in any manner that complies with the covenants set forth therein, and may later divide and reclassify any such transaction or action so long as the transaction or action (as so divided and/or reclassified) would be permitted to be made in reliance on the applicable exception as of the date of such reclassification; provided that if any financial ratio or test governing any applicable Incurrence-Based Amount would be satisfied in any subsequent period following the utilization of or any Fixed AmountAmount in its sole discretion; provided, such reclassification that, unless the Borrower Representative elects otherwise, the Borrowers shall be deemed to have automatically occurred if used amounts under an Incurrence-Based Amount then available to the Borrowers prior to utilization of any amount under a Fixed Amount then available to the Borrowers.
(d) The principal amount of any non-interest bearing Indebtedness or other discount security constituting Indebtedness at any date shall be the principal amount thereof that would be shown on a balance sheet of the Borrowers dated such date prepared in accordance with IFRS.
(e) 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 elected by be deemed to be the Borrowergranting of a Lien for purposes of Section 6.02.
Appears in 4 contracts
Samples: Incremental Amendment to Credit Agreement (Knowlton Development Corp Inc), Credit Agreement (Knowlton Development Corp Inc), Incremental Amendment to Credit Agreement (Knowlton Development Parent, Inc.)
Certain Calculations and Tests. (a) Notwithstanding anything in to the contrary herein, to the extent that the terms of this Agreement or any Loan Document to the contrary, for purposes of require (i) determining compliance with any provision in this Agreement or any Loan Document that requires the calculation of any financial ratio or test (including, without limitation, Section 6.10, any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, and/or any Total Net Leverage Ratio test, any Interest Coverage Ratio test, ) and/or any other financial ratio cap expressed as a percentage of Consolidated Adjusted EBITDA or test)Consolidated Total Assets, (ii) determining compliance with representations and warranties or the requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or ), (iii) testing the making or accuracy of any representation and/or warranty or (iv) compliance with availability under any basket or cap measured (including any basket expressed as a percentage of Consolidated Adjusted EBITDA or any other financial metric or by reference to the Available Amount, or any other availability of a “basket” or exception set forth in this AgreementConsolidated Total Assets), in each case, a condition to the consummation of any transaction in connection with a Limited Condition Transactionany acquisition or similar Investment (including with respect to any Indebtedness contemplated, assumed or incurred in connection therewith), the date determination of determinationwhether the relevant condition is satisfied may be made, at the election of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), will be deemed to be (1) in the case of any acquisition or other Investment, Disposition, incurrence of Indebtedness or any transaction related to the foregoing, in each case not prohibited hereunderIssuer, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) either (x) the execution of the definitive acquisition agreements or other binding contracts or agreements, or the establishment of a commitment, as applicable, agreement with respect to such acquisition, acquisition or Investment, Disposition, Indebtedness or related transaction (or, solely y) in connection with an acquisition or similar Investment to which the United Kingdom City Code on Takeovers or Takeover and Mergers (or any comparable Requirement of Law) applies, the date on which a “Rule 2.7 Announcementannouncement” of a firm intention to make an offer or similar announcement or determination in another jurisdiction subject to laws similar to the City Code in respect of such the target company made in compliance with the City Code of an acquisition (or similar laws or practices in other jurisdictions (a “Public Offer”)equivalent notice under comparable Requirements of Law) or (yz) the consummation of such acquisition, acquisition or Investment, Disposition, incurrence of Indebtedness or related transaction, (2) in the case of any Restricted Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) the declaration of such Restricted Payment or (y) the making of such Restricted Payment and (3) in the case of any Restricted Debt Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Debt Payment or (y) the making of such Restricted Debt Payment (the applicable date pursuant to clause (1), (2) or (3) above, as applicable, the “LCT Test Date”), and ifeach case, after such ratios and other provisions are measured giving effect, on a Pro Forma Basis (disregarding for the purposes of such pro forma calculation any Borrowing under the RC Facility or any other revolving facility) after giving effect Basis, to the Limited Condition Transaction and the other transactions to be entered into in connection therewith relevant acquisition or Investment (including any incurrence of Indebtedness and the use of proceeds thereof) and, at the election of the Borrower, any other acquisition or similar Investment, Restricted Payment, Restricted Debt Payment or Disposition that has not been consummated but with respect to which any Indebtedness contemplated, assumed or incurred in connection therewith); provided that (A) in the Borrower has elected to test any applicable condition event that such acquisition or Investment shall not have been consummated on or prior to the date of consummation in accordance with this Section 1.09(a), as if they had occurred at that is 270 days following the beginning execution of the most recently completed Test Period ending prior to the LCT Test Datedefinitive acquisition agreement governing such acquisition or Investment, the Borrower could determination of whether the matters specified in the preceding clauses (i) through (iv) have taken such action been satisfied shall be made on the relevant LCT Test Date in compliance with date of the consummation of such ratiosacquisition or Investment, representation, warranty, absence of Default or and (B) no Event of Default under Sections 7.01(a), 7.01(f) or “basket”, such ratio, representation, warranty, absence 7.01(g) shall have occurred and be continuing on the date of Default or Event of Default or “basket” shall be deemed to have been complied with. For the avoidance of doubt, if the Borrower has made an LCT Election and (x) any of the ratios or “baskets” for which compliance was determined or tested as of the LCT Test Date are exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of fluctuations in any such ratio or “basket” (including due to fluctuations of the target of any Limited Condition Transaction) at or prior to the consummation of the relevant Limited Condition Transaction, such “baskets” acquisition or ratios and other provisions will be deemed not to have been exceeded Investment.
(or, with respect to the Interest Coverage Ratio, not reachedb) as a result of such fluctuations solely for For purposes of determining whether the Limited Condition Transaction is permitted hereunder (providedpermissibility of any action, for the avoidance of doubtchange, transaction or event that the Borrower or any other Group Member may rely upon any improvement in any such ratio or “basket” availability) and (y) in connection with any subsequent requires a calculation of any ratio or “basket” availability on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement or Public Offer for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or “basket” availability shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of debt and the use of proceeds thereof (but without netting the cash proceeds thereof)) had been consummated. The provisions of this Section 1.09(a) shall, for the avoidance of doubt, apply in respect of the incurrence of any Incremental Facility. For the avoidance of doubt, the making of an LCT Election shall not require notice to the Administrative Agent or any other Person. For the further avoidance of doubt, in the absence of an LCT Election, unless specifically stated in this Agreement to be otherwise, all determinations of (x) compliance with any financial ratio or test (including, without limitation, Section 6.10, any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, any Total Net Leverage Ratio testtest and/or the amount of Consolidated Adjusted EBITDA or Consolidated Total Assets), any Interest Coverage Ratio test, and/or any other such financial ratio or test) and/or any cap expressed as a percentage of Consolidated EBITDA or any other financial metric, (y) the accuracy of any representation and warranties, or any requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (z) any availability test under any “baskets” shall, in each case, shall be made as of the applicable date of the consummation of the Specified Transaction or calculated at the time the applicable such action is takentaken (subject to clause (a) 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 occur be deemed to have occurred solely as a result of a change in any such financial ratio or test, cap, financial metric, test or “basket” availability amount occurring after such timecalculation, or after the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be.
(bc) 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 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Total Net Leverage Ratio test) (any such amountsamount, the a “Fixed AmountsAmount”) substantially concurrently (or as part of a series of related transactions) 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 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Total Net Leverage Ratio test) (any such amountsamount, the an “Incurrence-Based AmountsAmount”), it is understood and agreed that (i) the any Fixed Amounts (and any cash proceeds thereof and any concurrent borrowing under a revolving facility, including a Borrowing consisting of RC Facility Loans or any other revolving facility) Amount shall be disregarded, and disregarded in the incurrence calculation of the financial ratio or test applicable to the relevant Incurrence-Based Amount Amount, (ii) except as provided in clause (i), pro forma effect shall be calculatedgiven to the entire transaction and (iii) for the avoidance of doubt, first without all Indebtedness substantially concurrently incurred will be included for purposes of calculating compliance with Sections 6.04(a)(xi), 6.04(a)(xii), 6.04(a)(xiii), 6.04(b)(vii), 6.06(bb) and clause (a)(ii) of the Available Amount (in each case, giving effect to any Fixed Amount, but giving full pro forma effect to the intended use of proceeds thereof). The Issuer may elect that any amount incurred or transaction entered into (or consummated) in reliance on one or more of such any Incurrence-Based Amount or any Fixed Amount and (ii) in its sole discretion; provided, that unless the incurrence of the Fixed Amount Issuer elects otherwise, each such amount or transaction shall be calculated thereafterdeemed incurred, entered into or consummated first under any Incurrence-Based Amount to the maximum extent permitted thereunder.
(cd) Notwithstanding anything The principal amount of any non-interest bearing Indebtedness or other discount security constituting Indebtedness at any date shall be the principal amount thereof that would be shown on a balance sheet of the Issuer dated such date prepared in accordance with GAAP.
(e) 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 contrary herein, granting of a Lien for purposes of the covenants described in Article VI, if Section 6.02.
(f) With respect to any transaction or action would be permitted pursuant to one or more provisions described therein, the Borrower may divide and classify such transaction or action within any covenant in any manner pro forma calculation that complies with the covenants set forth therein, and may later divide and reclassify any such transaction or action so long as the transaction or action (as so divided and/or reclassified) would be permitted is required to be made in reliance connection with any acquisition or similar Investment in respect of which financial statements for the applicable target are not available for the same Test Period for which financial statements of the Issuer are available, the Issuer shall make the relevant calculation on the applicable exception as basis of the date relevant available financial statements (even if for differing periods) or such other commercially reasonable basis as the Issuer may elect.
(g) Any determination of the Weighted Average Life to Maturity of any Indebtedness shall be made by the Issuer in good faith at the time of the incurrence of such reclassification; provided that if any financial ratio or test governing any applicable Incurrence-Based Amount would be satisfied in any subsequent period following the utilization of any Fixed Amount, such reclassification shall be deemed to have automatically occurred if not elected by the BorrowerIndebtedness.
Appears in 4 contracts
Samples: Note Purchase Agreement (ATI Physical Therapy, Inc.), Note Purchase Agreement (ATI Physical Therapy, Inc.), Note Purchase Agreement (ATI Physical Therapy, Inc.)
Certain Calculations and Tests. (a) Notwithstanding anything in to the contrary herein, to the extent that the terms of this Agreement or any Loan Document to the contrary, for purposes of require (i) determining compliance with any provision in this Agreement or any Loan Document that requires the calculation of any financial ratio or test (including, without limitation, Section 6.10, any First Lien Net Leverage Ratio test6.15(a) or (b) hereof, any Secured Net Leverage Ratio test, and/or any Total Net Leverage Ratio test, any Interest Coverage Ratio test, ) and/or any other financial ratio cap expressed as a percentage of Consolidated Adjusted EBITDA or test)Consolidated Total Assets, (ii) determining compliance with representations and warranties or the requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or ), (iii) testing the making or accuracy of any representation and/or warranty or (iv) compliance with availability under any basket or cap measured (including any basket expressed as a percentage of Consolidated Adjusted EBITDA or any other financial metric or by reference to the Available Amount, or any other availability of a “basket” or exception set forth in this AgreementConsolidated Total Assets), in each case, a condition to the consummation of any transaction in connection with a Limited Condition Transactionany acquisition or similar Investment (including with respect to any Indebtedness contemplated, assumed or incurred in connection therewith), the date determination of determinationwhether the relevant condition is satisfied may be made, at the election of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), will be deemed to be (1) in the case of any acquisition or other Investment, Disposition, incurrence of Indebtedness or any transaction related to the foregoing, in each case not prohibited hereunder, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) either (x) the execution of the definitive acquisition agreements or other binding contracts or agreements, or the establishment of a commitment, as applicable, agreement with respect to such acquisition, acquisition or Investment, Disposition, Indebtedness or related transaction (or, solely y) in connection with an acquisition or similar Investment to which the United Kingdom City Code on Takeovers or Takeover and Mergers (or any comparable Requirement of Law) applies, the date on which a “Rule 2.7 Announcementannouncement” of a firm intention to make an offer or similar announcement or determination in another jurisdiction subject to laws similar to the City Code in respect of such the target company made in compliance with the City Code of an acquisition (or similar laws or practices in other jurisdictions (a “Public Offer”)equivalent notice under comparable Requirements of Law) or (yz) the consummation of such acquisition, acquisition or Investment, Disposition, incurrence of Indebtedness or related transaction, (2) in the case of any Restricted Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) the declaration of such Restricted Payment or (y) the making of such Restricted Payment and (3) in the case of any Restricted Debt Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Debt Payment or (y) the making of such Restricted Debt Payment (the applicable date pursuant to clause (1), (2) or (3) above, as applicable, the “LCT Test Date”), and ifeach case, after such ratios and other provisions are measured giving effect, on a Pro Forma Basis (disregarding for the purposes of such pro forma calculation any Borrowing under the RC Facility or any other revolving facility) after giving effect Basis, to the Limited Condition Transaction and the other transactions to be entered into in connection therewith relevant acquisition or Investment (including any incurrence of Indebtedness and the use of proceeds thereof) and, at the election of the Borrower, any other acquisition or similar Investment, Restricted Payment, Restricted Debt Payment or Disposition that has not been consummated but with respect to which any Indebtedness contemplated, assumed or incurred in connection therewith); provided that (A) in the Borrower has elected to test any applicable condition event that such acquisition or Investment shall not have been consummated on or prior to the date of consummation in accordance with this Section 1.09(a), as if they had occurred at that is 270 days following the beginning execution of the most recently completed Test Period ending prior to the LCT Test Datedefinitive acquisition agreement governing such acquisition or Investment, the Borrower could determination of whether the matters specified in the preceding clauses (i) through (iv) have taken such action been satisfied shall be made on the relevant LCT Test Date in compliance with date of the consummation of such ratiosacquisition or Investment, representation, warranty, absence of Default or and (B) no Event of Default under Sections 7.01(a), 7.01(f) or “basket”, such ratio, representation, warranty, absence 7.01(g) shall have occurred and be continuing on the date of Default or Event of Default or “basket” shall be deemed to have been complied with. For the avoidance of doubt, if the Borrower has made an LCT Election and (x) any of the ratios or “baskets” for which compliance was determined or tested as of the LCT Test Date are exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of fluctuations in any such ratio or “basket” (including due to fluctuations of the target of any Limited Condition Transaction) at or prior to the consummation of the relevant Limited Condition Transaction, such “baskets” acquisition or ratios and other provisions will be deemed not to have been exceeded Investment.
(or, with respect to the Interest Coverage Ratio, not reachedb) as a result of such fluctuations solely for For purposes of determining whether the Limited Condition Transaction is permitted hereunder (providedpermissibility of any action, for the avoidance of doubtchange, transaction or event that the Borrower or any other Group Member may rely upon any improvement in any such ratio or “basket” availability) and (y) in connection with any subsequent requires a calculation of any ratio or “basket” availability on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement or Public Offer for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or “basket” availability shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of debt and the use of proceeds thereof (but without netting the cash proceeds thereof)) had been consummated. The provisions of this Section 1.09(a) shall, for the avoidance of doubt, apply in respect of the incurrence of any Incremental Facility. For the avoidance of doubt, the making of an LCT Election shall not require notice to the Administrative Agent or any other Person. For the further avoidance of doubt, in the absence of an LCT Election, unless specifically stated in this Agreement to be otherwise, all determinations of (x) compliance with any financial ratio or test (including, without limitation, Section 6.10, any First Lien Net Leverage Ratio test6.15(a) or (b) hereof, any Secured Net Leverage Ratio test, any Total Net Leverage Ratio testtest and/or the amount of Consolidated Adjusted EBITDA or Consolidated Total Assets), any Interest Coverage Ratio test, and/or any other such financial ratio or test) and/or any cap expressed as a percentage of Consolidated EBITDA or any other financial metric, (y) the accuracy of any representation and warranties, or any requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (z) any availability test under any “baskets” shall, in each case, shall be made as of the applicable date of the consummation of the Specified Transaction or calculated at the time the applicable such action is takentaken (subject to clause (a) 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 occur be deemed to have occurred solely as a result of a change in any such financial ratio or test, cap, financial metric, test or “basket” availability amount occurring after such timecalculation, or after the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be.
(bc) 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 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test6.15(b) hereof, any Secured Net Leverage Ratio test and/or any Interest Coverage Total Net Leverage Ratio test) (any such amountsamount, the a “Fixed AmountsAmount”) substantially concurrently (or as part of a series of related transactions) 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 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test6.15(b), any Secured Net Leverage Ratio test and/or any Interest Coverage Total Net Leverage Ratio test) (any such amountsamount, the an “Incurrence-Based AmountsAmount”), it is understood and agreed that (i) the any Fixed Amounts (and any cash proceeds thereof and any concurrent borrowing under a revolving facility, including a Borrowing consisting of RC Facility Loans or any other revolving facility) Amount shall be disregarded, and disregarded in the incurrence calculation of the financial ratio or test applicable to the relevant Incurrence-Based Amount Amount, (ii) except as provided in clause (i), pro forma effect shall be calculatedgiven to the entire transaction and (iii) for the avoidance of doubt, first without all Indebtedness substantially concurrently incurred will be included for purposes of calculating compliance with Sections 6.04(a)(xi), 6.04(a)(xii), 6.04(a)(xiii), 6.04(b)(vii), 6.06(bb) and clause (a)(ii) of the Available Amount (in each case, giving effect to any Fixed Amount, but giving full pro forma effect to the intended use of proceeds thereof). The Borrower may elect that any amount incurred or transaction entered into (or consummated) in reliance on one or more of such any Incurrence-Based Amount or any Fixed Amount in its sole discretion; provided, that unless the Borrower elects otherwise and (ii) except as set forth in the incurrence definition of the Fixed Amount “Incremental Cap”, each such amount or transaction shall be calculated thereafterdeemed incurred, entered into or consummated first under any Incurrence-Based Amount to the maximum extent permitted thereunder.
(cd) Notwithstanding anything The principal amount of any non-interest bearing Indebtedness or other discount security constituting Indebtedness at any date shall be the principal amount thereof that would be shown on a balance sheet of the Borrower dated such date prepared in accordance with GAAP.
(e) 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 contrary herein, granting of a Lien for purposes of the covenants described in Article VI, if Section 6.02.
(f) With respect to any transaction or action would be permitted pursuant to one or more provisions described therein, the Borrower may divide and classify such transaction or action within any covenant in any manner pro forma calculation that complies with the covenants set forth therein, and may later divide and reclassify any such transaction or action so long as the transaction or action (as so divided and/or reclassified) would be permitted is required to be made in reliance connection with any acquisition or similar Investment in respect of which financial statements for the applicable target are not available for the same Test Period for which financial statements of the Borrower are available, the Borrower shall make the relevant calculation on the applicable exception as basis of the date relevant available financial statements (even if for differing periods) or such other commercially reasonable basis as the Borrower may elect.
(g) Any determination of the Weighted Average Life to Maturity of any Indebtedness shall be made by the Borrower in good faith at the time of the incurrence of such reclassification; provided that if any financial ratio or test governing any applicable Incurrence-Based Amount would be satisfied in any subsequent period following the utilization of any Fixed Amount, such reclassification shall be deemed to have automatically occurred if not elected by the BorrowerIndebtedness.
Appears in 3 contracts
Samples: Credit Agreement (ATI Physical Therapy, Inc.), Credit Agreement (ATI Physical Therapy, Inc.), Credit Agreement (ATI Physical Therapy, Inc.)
Certain Calculations and Tests. (a) Notwithstanding anything in this Agreement or any Loan Document to the contrary, for purposes of (i) determining compliance with any provision in this Agreement or any Loan Document that requires the calculation of any financial ratio or test (including, without limitation, Section 6.10, any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, Total Net Leverage Ratio testRatio, any Interest Total Net Cash Leverage Ratio, any Contract Asset Balance Coverage Ratio test, and/or or any other financial ratio or testLTV Ratio test (including as required in the definition of “Permitted Acquisition”)), (ii) determining compliance with representations and warranties or the requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) (other than in connection with any borrowing of Revolving Loans or issuance of any Letter of Credit under the Revolving Credit Facility (or Other Revolving Commitments)) or (iii) testing any cap measured expressed as a percentage of Consolidated EBITDA EBITDA, Consolidated Cash EBITDA, Liquidity or any other financial metric or by reference to the Available Amount, or Consolidated Total Assets and any other availability of a “basket” or exception set forth in this AgreementArticle VI, in each case, case in connection with a Specified Transaction or other transaction permitted hereunder, undertaken in connection with the consummation of a Limited Condition Transaction, the date of determinationdetermination of whether any such action is permitted hereunder (but not, for the avoidance of doubt, in connection with any calculation of the Financial Maintenance Covenant for the purposes of Section 6.13 only), at the election of the Borrower (the Borrower’s such election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), will be deemed to be (1) in the case of any acquisition or other Investment, Disposition, incurrence of Indebtedness or any transaction related to the foregoing, in each case not prohibited hereunder, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) either (x) the execution of date the definitive acquisition agreements for such Limited Condition Transaction are entered into or other binding contracts or agreements, or the establishment (y) in respect of a commitment, as applicable, with respect to such acquisition, Investment, Disposition, Indebtedness or related transaction (or, solely sales in connection with an acquisition to which the United Kingdom City Code on Takeovers and Mergers appliesapplies (or similar law or practice in other jurisdictions), the date on which a “Rule 2.7 Announcementannouncement” of a firm intention intends to make an offer or similar announcement or determination in another jurisdiction subject to laws similar to the United Kingdom City Code on Takeovers and Mergers in respect of such a target company made in compliance with the City Code or similar laws or practices in other jurisdictions of a Limited Condition Transaction (a “Public Offer”)) or (y) the consummation of such acquisition, Investment, Disposition, incurrence of Indebtedness or related transaction, (2) in the case of any Restricted Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) the declaration of such Restricted Payment or (y) the making of such Restricted Payment and (3) in the case of any Restricted Debt Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Debt Payment or (y) the making of such Restricted Debt Payment (the applicable date pursuant to clause (1), (2) or (3) above, as applicable, the “LCT Test Date”), and if, after such ratios and other provisions are measured on a Pro Forma Basis (disregarding for the purposes of such giving pro forma calculation any Borrowing under the RC Facility or any other revolving facility) after giving effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) and, at the election of the Borrower, any other acquisition or similar Investment, Restricted Payment, Restricted Debt Payment or Disposition that has not been consummated but with respect to which the Borrower has elected to test any applicable condition prior to the date of consummation in accordance with this Section 1.09(a), as if they had occurred at the beginning of the most recently completed Test Tests Period ending on or prior to the LCT Test Date, the Borrower could have taken such action on the relevant LCT Test Date in compliance with such ratios, representation, warranty, absence of Default or Event of Default or “basket”, such ratio, representation, warranty, absence of Default or Event of Default or “basket” shall be deemed to have been complied with. For the avoidance of doubt, if the Borrower has made an LCT Election and (x) any of the ratios or “baskets” for which compliance was determined or tested as of the LCT Test Date are exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of fluctuations in any such ratio or “basket” (including due to fluctuations of the target of any Limited Condition Transaction) at or prior to the consummation of the relevant Limited Condition Transaction, such “baskets” or ratios and other provisions will not be deemed not to have been exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction is permitted hereunder (provided, for the avoidance of doubt, that the Borrower or any other Group Member may rely upon any improvement in any such ratio or “basket” availability) and (y) in connection with any subsequent calculation of any ratio or “basket” availability on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement or Public Offer for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or “basket” availability shall be calculated (x) on a Pro Forma Basis pro forma basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of debt Indebtedness and the use of proceeds thereof (but without netting the cash proceeds thereof)) had been consummated or (y) solely in respect of any Restricted Payment or any Restricted Debt Payment, on a standalone basis without assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof (but without netting the cash proceeds thereof)) had been consummated. The provisions of this Section 1.09(a) shall, for the avoidance of doubt, apply in respect of the incurrence of any Incremental Facility. For the avoidance of doubt, the making of an LCT Election shall not require notice to the Administrative Agent or any other Person. For the further avoidance of doubt, in the absence of an LCT Election, unless specifically stated in this Agreement to be otherwise, all determinations of (x) compliance with any financial ratio or test (including, without limitation, Section 6.10, any First Lien Total Net Leverage Ratio test, any Secured Net Leverage Ratio testRatio, any Total Net Cash Leverage Ratio testRatio, any Interest Contract Asset Balance Coverage Ratio testor any LTV Ratio test (but not, and/or for the avoidance of doubt, in connection with any other financial ratio or testcalculation of the Financial Maintenance Covenant for the purposes of Section 6.13 only)) and/or any cap expressed as a percentage of Consolidated EBITDA EBITDA, Consolidated Cash EBITDA, Liquidity or any other financial metricConsolidated Total Assets, (y) the accuracy of any representation and warranties, or any requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (z) any availability test under any “baskets” shall, in each case, shall be made as of the applicable date of the consummation of the Specified Transaction or the time the applicable action is taken, change is made, other transaction is consummated or event occurs, as the case may be, and no Default or Event of Default shall occur solely as a result of a change in any such financial ratio or test, cap, financial metric, or “basket” availability occurring after such time
(b) 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 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Fixed Amounts”) substantially concurrently (or as part of a series of related transactions) 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 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that (i) the Fixed Amounts (and any cash proceeds thereof and any concurrent borrowing under a revolving facility, including a Borrowing consisting of RC Facility Loans or any other revolving facility) shall be disregarded, and the incurrence of the Incurrence-Based Amount shall be calculated, first without giving effect to any Fixed Amount, but giving full pro forma effect to the use of proceeds of such Fixed Amount and (ii) the incurrence of the Fixed Amount shall be calculated thereafterhereunder.
(c) Notwithstanding anything to the contrary herein, for purposes of the covenants described in Article VI, if any transaction or action would be permitted pursuant to one or more provisions described therein, the Borrower may divide and classify such transaction or action within any covenant in any manner that complies with the covenants set forth therein, and may later divide and reclassify any such transaction or action so long as the transaction or action (as so divided and/or reclassified) would be permitted to be made in reliance on the applicable exception as of the date of such reclassification; provided that if any financial ratio or test governing any applicable Incurrence-Based Amount would be satisfied in any subsequent period following the utilization of any Fixed Amount, such reclassification shall be deemed to have automatically occurred if not elected by the Borrower.
Appears in 3 contracts
Samples: Credit Agreement (GoHealth, Inc.), Incremental Facility Agreement (GoHealth, Inc.), Incremental Facility Agreement (GoHealth, Inc.)
Certain Calculations and Tests. (a) Notwithstanding anything in to the contrary herein, to the extent that the terms of this Agreement or any Loan Document to the contrary, for purposes of require (i) determining compliance with any provision in this Agreement or any Loan Document that requires the calculation of any financial ratio or test (including, without limitation, Section 6.10, any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, the Total Net Leverage Ratio testRatio, any Interest Coverage Ratio test, or the Total Net Secured Leverage Ratio) and/or any other financial ratio the amount of EBITDA or test), Total Assets or (ii) determining compliance with representations and warranties or the requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (iii) testing any cap measured as a percentage condition to (A) the consummation of Consolidated EBITDA or any other financial metric or by reference to the Available Amount, or any other availability of a “basket” or exception set forth in this Agreement, in each case, transaction in connection with any acquisition or similar Investment (including the assumption or incurrence of Indebtedness), (B) the making of any Restricted Payment and/or (C) the making of any Restricted Debt Payment (such action pursuant to clause (A), (B) or (C), a “Limited Condition Transaction”), the date determination of determinationwhether the relevant condition is satisfied may be made, at the election of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an a “LCT Election”), will be deemed to be (1) in the case of any acquisition or other similar Investment, Disposition, incurrence of Indebtedness or any transaction related to the foregoing, in each case not prohibited hereunder, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) either (x) the execution of the definitive acquisition agreements or other binding contracts or agreements, or the establishment of a commitment, as applicable, agreement with respect to such acquisition, Investment, Disposition, Indebtedness acquisition or related transaction (or, solely in connection with an acquisition to which the United Kingdom City Code on Takeovers and Mergers applies, the date on which a “Rule 2.7 Announcement” of a firm intention to make an offer or similar announcement or determination in another jurisdiction subject to laws similar to the City Code in respect of such target company made in compliance with the City Code or similar laws or practices in other jurisdictions (a “Public Offer”)) Investment or (y) the consummation of such acquisition, acquisition or Investment, Disposition, incurrence of Indebtedness or related transaction, (2) in the case of any Restricted Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) the declaration of such Restricted Payment or (y) the making of such Restricted Payment and (3) in the case of any Restricted Debt Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Debt Payment or (y) the making of such Restricted Debt Payment (the applicable date pursuant to clause (1), (2) or (3) above), as applicable, the “LCT Test Date”), and ifin each case, after such ratios and other provisions are measured on a Pro Forma Basis (disregarding for the purposes of such pro forma calculation any Borrowing under the RC Facility or any other revolving facility) after giving effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) and, at the election of the Borrower, any other acquisition or similar Investmentrelevant acquisition, Restricted Payment, Payment and/or Restricted Debt Payment or Disposition that has not been consummated but with respect to which the Borrower has elected to test any applicable condition prior to the date of consummation in accordance with this Section 1.09(a), as if they had occurred at the beginning of the most recently completed Test Period ending prior to the LCT Test Date, the Borrower could have taken such action on the relevant LCT Test Date in compliance with such ratios, representation, warranty, absence of Default or Event of Default or “basket”, such ratio, representation, warranty, absence of Default or Event of Default or “basket” shall be deemed to have been complied witha Pro Forma Basis. For the avoidance of doubt, if If the Borrower has made an a LCT Election and (x) any of the ratios or “baskets” for which compliance was determined or tested as of the LCT Test Date are exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of fluctuations in any such ratio or “basket” (including due to fluctuations of the target of any Limited Condition Transaction) at or prior to the consummation of the relevant Limited Condition Transaction, such “baskets” or ratios and other provisions will be deemed not to have been exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction is permitted hereunder (provided, for the avoidance of doubt, that the Borrower or any other Group Member may rely upon any improvement in any such ratio or “basket” availability) and (y) then in connection with any subsequent calculation determination of compliance with any financial ratio or “basket” availability test (including, without limitation, the Total Net Leverage Ratio, or the Total Net Secured Leverage Ratio) and/or the amount of EBITDA or Total Assets with respect to the incurrence of Indebtedness or Liens, or the making of Restricted Payments or Restricted Debt Payments on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement or Public Offer for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, compliance with any such financial ratio or “basket” availability test and/or the amount of EBITDA or Total Assets shall be calculated tested by calculating the availability under such financial ratio or test and/or the amount of EBITDA or Total Assets, as applicable, on a Pro Forma Basis pro forma basis assuming such Limited Condition Transaction and any other transactions in connection therewith have been consummated (including any incurrence of debt Indebtedness and the use of proceeds thereof (but without netting the cash proceeds thereof)) had been consummated. The provisions of this Section 1.09(a) shall, for the avoidance of doubt, apply in respect of the incurrence of any Incremental Facility. For the avoidance of doubt, the making of an LCT Election shall not require notice to the Administrative Agent or any other Person. For the further avoidance of doubt, in the absence of an LCT Election, unless specifically stated in this Agreement to be otherwise, all determinations of (x) compliance with any financial ratio or test (including, without limitation, Section 6.10, any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, any Total Net Leverage Ratio test, any Interest Coverage Ratio test, and/or any other financial ratio or test) and/or any cap expressed as a percentage of Consolidated EBITDA or any other financial metric, (y) the accuracy of any representation and warranties, or any requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (z) any availability test under any “baskets” shall, in each case, be made as of the applicable date of the consummation of the Specified Transaction or the time the applicable action is taken, change is made, transaction is consummated or event occurs, as the case may be, and no Default or Event of Default shall occur solely as a result of a change in any such financial ratio or test, cap, financial metric, or “basket” availability occurring after such time.
(b) 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 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Total Net Secured Leverage Ratio test) (any such amounts, the “Fixed Amounts”) substantially concurrently (or as part of a series of related transactions) 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 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Total Net Secured Leverage Ratio test) (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that (i) the Fixed Amounts (and any cash proceeds thereof and any concurrent borrowing under a revolving facility, including a Borrowing consisting of RC Facility Loans or any other revolving facility) shall be disregarded, and disregarded in the incurrence calculation of the financial ratio or test applicable to the Incurrence-Based Amount shall be calculated, first without giving effect to any Fixed Amount, but giving full pro forma effect to the use of proceeds of such Fixed Amount and (ii) the incurrence of the Fixed Amount shall be calculated thereafterAmounts.
(c) Notwithstanding anything to the contrary herein, for purposes of the covenants described in Article VI, if any transaction or action would be permitted pursuant to one or more provisions described therein, the Borrower may divide and classify such transaction or action within any covenant in any manner that complies with the covenants set forth therein, and may later divide and reclassify any such transaction or action so long as the transaction or action (as so divided and/or reclassified) would be permitted to be made in reliance on the applicable exception as of the date of such reclassification; provided that if any financial ratio or test governing any applicable Incurrence-Based Amount would be satisfied in any subsequent period following the utilization of any Fixed Amount, such reclassification shall be deemed to have automatically occurred if not elected by the Borrower.
Appears in 3 contracts
Samples: Credit Agreement (Milacron Holdings Corp.), Credit Agreement (Milacron Holdings Corp.), Term Loan Agreement (Milacron Holdings Corp.)
Certain Calculations and Tests. (a) Notwithstanding anything in this Agreement or any Loan Document to the contrary, for purposes of (i) when determining compliance with any financial ratio, basket or any other provision in of this Agreement or any Loan Document that requires (including the calculation determination of any financial ratio or test (including, without limitation, Section 6.10, any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, Total Net Leverage Ratio test, any Interest Coverage Ratio test, and/or any other financial ratio or test), (ii) determining compliance with representations and warranties or the requirement regarding the absence any provision of a this Agreement which requires that no Default or Event of Default (has occurred, is continuing or any type would result therefrom or accuracy of Default or Event of Defaultrepresentations and warranties) or (iii) testing any cap measured as a percentage of Consolidated EBITDA or any other financial metric or by reference to the Available Amount, or any other availability of a “basket” or exception set forth in this Agreement, in each case, in connection with the consummation of a Limited Condition Transaction, the date of determinationdetermination of such financial ratio, basket or other provision (including determination of whether any Default or Event of Default has occurred, is continuing or would result therefrom or accuracy of representations and warranties) shall, at the election option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), will be deemed to be in the case of a LCT Election, (1i) in the case of any acquisition or other Investment, Disposition, incurrence of Indebtedness or any transaction related to the foregoing, described in each case not prohibited hereunder, at the time of clause (or on the basis a) of the financial statements for definition of “Limited Condition Transaction,” the most recently ended Test Period at the time of) either (x) the execution of date the definitive acquisition agreements or other binding contracts or agreements, or the establishment of a commitment, as applicable, with respect to agreement for such acquisition, Investment, Disposition, Indebtedness or related transaction (Limited Condition Transaction is entered into or, 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 Announcementannouncement” of a firm intention to make an offer or similar announcement or determination in another jurisdiction subject to laws similar to the City Code in respect of such a target company is made in compliance with the City Code or similar laws or practices in other jurisdictions (a “Public Offer”)) or (y) the consummation of such acquisition, Investment, Disposition, incurrence of Indebtedness or related transactionCode, (2ii) in the case of any Restricted Payment, at the time of transaction described in clause (or on the basis b) of the financial statements for definition of “Limited Condition Transaction,” the most recently ended Test Period at the time of) (x) the declaration date of such Restricted Payment irrevocable notice or (y) the making of such Restricted Payment irrevocable offer and (3iii) in the case of any Restricted Debt Payment, at the time of transaction described in clause (or on the basis c) of the financial statements for definition of “Limited Condition Transaction,” the most recently ended Test Period at the time of) (x) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Debt Payment or (y) the making date of such Restricted Debt Payment declaration (the applicable date pursuant to clause (1), (2) or (3) above, as applicableany such date, the “LCT Test Date”), and if, after such ratios financial ratios, baskets and other provisions are measured on a Pro Forma Basis (disregarding for the purposes of such pro forma calculation any Borrowing under the RC Facility or any other revolving facility) after giving effect to the such Limited Condition Transaction and the other transactions Specified Transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) and, and including, at the election Borrower’s election, the application of the Borrower, any other acquisition or similar Investment, Restricted Payment, Restricted Debt Payment or Disposition that has not been consummated but with respect to which Covenant Toggle in the Borrower has elected to test any applicable condition prior to case of a transaction described in clause (a) of the date definition of consummation in accordance with this Section 1.09(a), “Limited Condition Transaction” constituting a Material Acquisition) as if they had occurred at the beginning of the most recently completed recent Test Period ending prior to the LCT Test Date, the Borrower could have taken such action on the relevant LCT Test Date in compliance with such financial ratios, representation, warranty, absence of Default or Event of Default or “basket”baskets and other provisions, such ratiofinancial ratios, representation, warranty, absence of Default or Event of Default or “basket” baskets and other provisions shall be deemed to have been complied with; provided that in the case of any transaction with respect to which this Agreement requires that no Default or Event of Default has occurred, is continuing or would result therefrom, the consummation of such transaction as a Limited Condition Transaction shall be subject to the condition that as of the date of the consummation of such Limited Condition Transaction and after giving effect thereto, no Specified Event of Default has occurred, is continuing or would result therefrom. For the avoidance of doubt, if the Borrower has made an LCT Election and (x) if any of the such financial ratios or “baskets” for which compliance was determined or tested as of the LCT Test Date baskets are exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of fluctuations in any such financial ratio or “basket” basket (including due to fluctuations of the target of any Limited Condition Transactionin Consolidated EBITDA) at or prior to the consummation of the relevant Limited Condition Transaction, such “baskets” or financial ratios and other provisions baskets will not be deemed not to have been exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction is permitted hereunder (provided, for the avoidance of doubt, that the Borrower or any other Group Member may rely upon any improvement in any such ratio or “basket” availability) and (y) such financial ratios, baskets and other provisions shall not be tested at the time of consummation of such Limited Condition Transaction or related Specified Transactions. If the Borrower has made an LCT Election for any Limited Condition Transaction then in connection with any subsequent calculation of any financial ratio or “basket” availability basket with respect to any other Specified Transaction on or following the relevant LCT Test Date and prior to the earlier of (ix) the date on which such Limited Condition Transaction is consummated or and (iiy) the date that on which the definitive agreement agreement, binding offer, irrevocable notice or Public Offer declaration for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transactionexpires, any such financial ratio or “basket” availability basket shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions Specified Transactions in connection therewith (including any incurrence of debt Indebtedness and the use of proceeds thereof thereof, and including, at the Borrower’s election, the application of the Covenant Toggle in the case of a transaction described in clause (but without netting a) of the cash proceeds thereof)definition of “Limited Condition Transaction” constituting a Material Acquisition) had have been consummated. The provisions of this Section 1.09(a) shall, for the avoidance of doubt, apply in respect of the incurrence of any Incremental Facility. For the avoidance of doubt, the making of an LCT Election shall not require notice to the Administrative Agent or any other Person. For the further avoidance of doubt, in the absence of an LCT Election, unless specifically stated in this Agreement to be otherwise, all determinations of (x) compliance with any financial ratio or test (including, without limitation, Section 6.10, any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, any Total Net Leverage Ratio test, any Interest Coverage Ratio test, and/or any other financial ratio or test) and/or any cap expressed as a percentage of Consolidated EBITDA or any other financial metric, (y) the accuracy of any representation and warranties, or any requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (z) any availability test under any “baskets” shall, in each case, be made as of the applicable date of the consummation of the Specified Transaction or the time the applicable action is taken, change is made, transaction is consummated or event occurs, as the case may be, and no Default or Event of Default shall occur solely as a result of a change in any such financial ratio or test, cap, financial metric, or “basket” availability occurring after such time.
(b) 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 6.10, any First Lien Net Leverage Ratio test, pro forma compliance with any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Fixed Amounts”) substantially concurrently (or as part of a series of related transactions) with any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that requires compliance with a any such financial ratio or test (including, without limitation, Section 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Incurrence-Incurrence Based Amounts”), it is understood and agreed that (i) the Fixed Amounts (and any cash proceeds thereof thereof) and (ii) any concurrent borrowing Indebtedness resulting from borrowings under a revolving facility, including a Borrowing consisting of RC any Revolving Credit Facility Loans which occur concurrently or any other revolving facility) shall be disregarded, and substantially concurrently with the incurrence of the Incurrence-Incurrence Based Amount Amounts shall in each case be calculated, first without giving effect to any Fixed Amount, but giving full pro forma effect disregarded in the calculation of the financial ratio or test applicable to the use of proceeds of Incurrence Based Amounts in connection with such Fixed Amount and (ii) the incurrence of the Fixed Amount shall be calculated thereaftersubstantially concurrent incurrence.
(c) Notwithstanding anything to the contrary herein, for purposes of the covenants described in Article VIVII, if any transaction Lien, Investment, Indebtedness, Disposition, Restricted Payment or action prepayment of Subordinated Debt (or a portion thereof) would be permitted pursuant to one or more provisions described therein, the Borrower may divide and classify such transaction Lien, Investment, Indebtedness, Disposition, Restricted Payment or action within any covenant prepayment of Subordinated Debt (or a portion thereof) in any manner that complies with the covenants set forth thereinin Article VII, and may later divide and reclassify any such transaction Lien, Investment, Indebtedness, Disposition, Restricted Payment or action prepayment of Subordinated Debt (or a portion thereof) so long as the transaction Lien, Investment, Indebtedness, Disposition, Restricted Payment or action prepayment of Subordinated Debt (or a portion thereof) (as so divided redivided and/or reclassified) would be permitted to be made in reliance on the applicable exception as of the date of such redivision or reclassification; provided that if any financial ratio or test governing any applicable Incurrence-Based Amount would such divisions, classifications, redivisions and/or reclassifications shall only be satisfied in any subsequent period following permitted within a specific type of covenant, and not, for the utilization avoidance of any Fixed Amountdoubt, such reclassification shall be deemed to have automatically occurred if not elected by the Borroweracross different types of covenants.
Appears in 3 contracts
Samples: Credit Agreement (RingCentral, Inc.), Credit Agreement (RingCentral, Inc.), Credit Agreement (RingCentral, Inc.)
Certain Calculations and Tests. (a) Notwithstanding anything in to the contrary herein, to the extent that the terms of this Agreement or any Loan Document to the contrary, for purposes of require (i) determining compliance with any provision in this Agreement or any Loan Document that requires the calculation of any financial ratio or test (including, without limitation, Section 6.10, any First Lien Net Senior Secured Leverage Ratio test, any Secured Net Leverage Ratio test, Total Net Leverage Ratio test, any Interest Total Leverage Ratio test or any Fixed Charge Coverage Ratio test, ) and/or the amount of Consolidated Adjusted EBITDA or any other financial ratio cap expressed as a percentage of Consolidated Total Assets or test), (ii) determining compliance with representations and warranties or the requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (iii) testing any cap measured as a percentage condition to (A) the consummation of Consolidated EBITDA or any other financial metric or by reference to the Available Amount, or any other availability of a “basket” or exception set forth in this Agreement, in each case, transaction in connection with any acquisition or similar Investment, (B) the making of any Restricted Payment and/or (C) the making of any Restricted Debt Payment (including in each case of clauses (A), (B) and (C), the related assumption or incurrence of Indebtedness) (such action pursuant to clauses (A), (B) or (C), a “Limited Condition Transaction”), the date determination of determinationwhether the relevant condition is satisfied may be made, at the election of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an a “LCT Election”), will be deemed to be (1) in the case of any acquisition or other Investment, Disposition, similar Investment or related incurrence or assumption of Indebtedness or any transaction related to the foregoing, in each case not prohibited hereunderIndebtedness, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) ), either (x) the execution of the definitive acquisition agreements or other binding contracts or agreements, or the establishment of a commitment, as applicable, agreement with respect to such acquisition, acquisition or Investment, Disposition, or incurrence or assumption of Indebtedness or related transaction (or, solely in connection with an acquisition to which the United Kingdom City Code on Takeovers and Mergers applies, the date on which a “Rule 2.7 Announcement” of a firm intention to make an offer or similar announcement or determination in another jurisdiction subject to laws similar to the City Code in respect of such target company made in compliance with the City Code or similar laws or practices in other jurisdictions (a “Public Offer”)) or (y) the consummation of such acquisition, acquisition or Investment, Disposition, or incurrence or assumption of Indebtedness or related transactionIndebtedness, (2) in the case of any Restricted Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) the declaration of such Restricted Payment or (y) the making of such Restricted Payment and (3) in the case of any Restricted Debt Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Debt Payment or (y) the making of such Restricted Debt Payment (the applicable date pursuant to clause (1), (2) or (3) above), as applicable, the “LCT Test Date”), and ifin each case, after such ratios and other provisions are measured on a Pro Forma Basis (disregarding for the purposes of such pro forma calculation any Borrowing under the RC Facility or any other revolving facility) after giving effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) andrelevant acquisition, at the election of the Borrower, any other acquisition or similar InvestmentIndebtedness, Restricted Payment, Payment and/or Restricted Debt Payment or Disposition that has not been consummated but with respect to which the Borrower has elected to test any applicable condition prior to the date of consummation in accordance with this Section 1.09(a), as if they had occurred at the beginning of the most recently completed Test Period ending prior to the LCT Test Date, the Borrower could have taken such action on the relevant LCT Test Date in compliance with such ratios, representation, warranty, absence of Default or Event of Default or “basket”, such ratio, representation, warranty, absence of Default or Event of Default or “basket” shall be deemed to have been complied witha Pro Forma Basis. For the avoidance of doubt, if If the Borrower has made an a LCT Election and (x) any of the ratios or “baskets” for which compliance was determined or tested as of the LCT Test Date are exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of fluctuations in any such ratio or “basket” (including due to fluctuations of the target of any Limited Condition Transaction) at or prior to the consummation of the relevant Limited Condition Transaction, such “baskets” or ratios and other provisions will be deemed not to have been exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction is permitted hereunder (provided, for the avoidance of doubt, that the Borrower or any other Group Member may rely upon any improvement in any such ratio or “basket” availability) and (y) then in connection with any subsequent calculation determination of compliance with any financial ratio or “basket” availability test and/or the amount of Consolidated Adjusted EBITDA or Consolidated Total Assets with respect to the incurrence of Indebtedness or Liens, or the making of Restricted Payments or Restricted Debt Payments on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement or Public Offer for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, compliance with any such financial ratio or “basket” availability test and/or amount of Consolidated Adjusted EBITDA or Consolidated Total Assets shall be calculated tested by calculating the availability under such financial ratio or test and/or the amount of Consolidated Adjusted EBITDA or Consolidated Total Assets, as applicable, on a Pro Forma Basis pro forma basis assuming such Limited Condition Transaction and any other transactions in connection therewith have been consummated (including any incurrence of debt Indebtedness and the use of proceeds thereof (but without netting the cash proceeds thereof).
(b) had been consummated. The provisions For purposes of this Section 1.09(a) shall, for determining the avoidance of doubt, apply in respect of the incurrence permissibility of any Incremental Facility. For the avoidance action, change, transaction or event that requires a calculation of doubt, the making of an LCT Election shall not require notice to the Administrative Agent or any other Person. For the further avoidance of doubt, in the absence of an LCT Election, unless specifically stated in this Agreement to be otherwise, all determinations of (x) compliance with any financial ratio or test (including, without limitation, Section 6.10, any First Lien Net Senior Secured Leverage Ratio test, any Secured Net Leverage Ratio test, any Total Net Leverage Ratio testtest and/or the amount of Consolidated Adjusted EBITDA or Consolidated Total Assets), any Interest Coverage Ratio test, and/or any other such financial ratio or test) and/or any cap expressed as a percentage of Consolidated EBITDA or any other financial metric, (y) the accuracy of any representation and warranties, or any requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (z) any availability test under any “baskets” shall, in each case, shall be made as of the applicable date of the consummation of the Specified Transaction or calculated at the time the applicable such action is takentaken (subject to clause (a) 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 occur be deemed to have occurred solely as a result of a change in any such financial ratio or test, cap, financial metric, or “basket” availability test occurring after the time such timeaction is taken, such change is made, such transaction is consummated or such event occurs, as the case may be.
(bc) 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 6.10, any First Lien Net Senior Secured Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Senior Leverage Ratio test and/or any Interest Total Leverage Ratio test and/or any Fixed Charge Coverage Ratio test) (any such amounts, the “Fixed Amounts”) substantially concurrently (or as part of a series of related transactions) 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 6.10, any First Lien Net Senior Secured Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Senior Leverage Ratio test and/or any Interest Coverage Total Leverage Ratio test) (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that (i) the Fixed Amounts (and any cash proceeds thereof and any concurrent borrowing under a revolving facility, including a Borrowing consisting of RC Facility Loans or any other revolving facility) shall be disregarded, and disregarded in the incurrence calculation of the financial ratio or test applicable to the Incurrence-Based Amount shall be calculatedAmounts; however, first without giving effect to any Fixed Amountfor the avoidance of doubt, but giving full pro forma effect to the use of proceeds of such Fixed Amount and (ii) the substantially concurrent incurrence of the Indebtedness and Liens in reliance upon Fixed Amount Amounts shall not be calculated thereafter.
(c) Notwithstanding anything to the contrary herein, disregarded for purposes of the covenants described in Article VI, if any transaction or action would be permitted pursuant to one or more provisions described therein, the Borrower may divide and classify such transaction or action within any covenant in any manner that complies testing compliance with the covenants set forth therein, Total Leverage Ratio or the Fixed Charge Coverage Ratio under Section 6.04 and may later divide and reclassify any such transaction or action so long as the transaction or action (as so divided and/or reclassified) would be permitted to be made in reliance on the applicable exception as of the date of such reclassification; provided that if any financial ratio or test governing any applicable Incurrence-Based Amount would be satisfied in any subsequent period following the utilization of any Fixed Amount, such reclassification shall be deemed to have automatically occurred if not elected by the BorrowerSection 6.06.
Appears in 3 contracts
Samples: Term Loan Credit Agreement (PQ Group Holdings Inc.), Term Loan Credit Agreement (PQ Group Holdings Inc.), Term Loan Credit Agreement (PQ Group Holdings Inc.)
Certain Calculations and Tests. (a) Notwithstanding anything in to the contrary herein, to the extent that the terms of this Agreement or any Loan Document to the contrary, for purposes of require (i) determining compliance with any provision in this Agreement or any Loan Document that requires the calculation of any financial ratio or test (including, without limitationincluding Section 6.10(a), Section 6.106.10(b), Section 6.10(c), any First Lien Rent Adjusted Net Leverage Ratio test, any Secured Total Rent Adjusted Net Leverage Ratio test, Total Net Leverage Ratio test, test and/or any Interest Fixed Charge Coverage Ratio test, ) and/or any other financial ratio cap expressed as a percentage of Consolidated Adjusted EBITDA, Consolidated Adjusted EBITDAR or test)Consolidated Total Assets, (ii) determining compliance with representations and warranties or the requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or ), (iii) testing the making or accuracy of any representation and/or warranty or (iv) compliance with availability under any basket or cap measured (including any basket or cap expressed as a percentage of Consolidated Adjusted EBITDA or any other financial metric or by reference to the Available Amount, or any other availability of a “basket” or exception set forth in this AgreementConsolidated Total Assets), in each case, a condition to (A) the consummation of any transaction in connection with a Limited Condition Transactionany acquisition or similar Investment (including the assumption or incurrence of Indebtedness), (B) the making of any Restricted Payment and/or (C) the making of any Restricted Debt Payment, the date determination of determinationwhether the relevant condition is satisfied may be made, at the election of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), will be deemed to be (1) in the case of any acquisition or other Investmentsimilar Investment (including with respect to any Indebtedness contemplated, Disposition, incurrence of Indebtedness assumed or any transaction related to the foregoing, incurred in each case not prohibited hereunderconnection therewith), at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) either (x) the execution of the definitive acquisition agreements or other binding contracts or agreements, or the establishment of a commitment, as applicable, agreement with respect to such acquisition, acquisition or Investment, Disposition, Indebtedness or related transaction (or, solely y) in connection with an acquisition to which the United Kingdom City Code on Takeovers or Takeover and Mergers (or any comparable Requirement of Law) applies, the date on which a “Rule 2.7 Announcementannouncement” of a firm intention to make an offer or similar announcement or determination in another jurisdiction subject to laws similar to the City Code in respect of such the target company made in compliance with the City Code of an acquisition (or similar laws or practices in other jurisdictions (a “Public Offer”)equivalent notice under comparable Requirements of Law) or (yz) the consummation of such acquisition, acquisition or Investment, Disposition, incurrence of Indebtedness or related transaction, (2) in the case of any Restricted PaymentPayment (including with respect to any Indebtedness contemplated or incurred in connection therewith), at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) either (x) the declaration of such Restricted Payment or (y) the making of such Restricted Payment and (3) in the case of any Restricted Debt PaymentPayment (including with respect to any Indebtedness contemplated or incurred in connection therewith), at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) either (x) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Debt Payment or (y) the making of such Restricted Debt Payment (the applicable date pursuant to clause (1)Payment, (2) or (3) above, as applicable, the “LCT Test Date”), and ifin each case, after such ratios and other provisions are measured giving effect, on a Pro Forma Basis Basis, to (disregarding for I) the purposes of such pro forma calculation any Borrowing under the RC Facility or any other revolving facility) after giving effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) andrelevant acquisition, at the election of the Borrower, any other acquisition or similar Investment, Restricted Payment, Restricted Debt Payment and/or any related Indebtedness (including the intended use of proceeds thereof) and (II) to the extent definitive documents in respect thereof have been executed, the Restricted Payment has been declared or Disposition that has not been consummated but delivery of notice with respect to a Restricted Debt Payment has been delivered (which definitive documents, declaration or notice has not terminated or expired without the consummation thereof), any other Subject Transaction that the Borrower has elected to test any applicable condition prior to the date of consummation treat in accordance with this Section 1.09(aclause (a), as if they had occurred at the beginning of the most recently completed Test Period ending prior to the LCT Test Date, the Borrower could have taken such action on the relevant LCT Test Date in compliance with such ratios, representation, warranty, absence of Default or Event of Default or “basket”, such ratio, representation, warranty, absence of Default or Event of Default or “basket” shall be deemed to have been complied with. .
(b) For the avoidance of doubt, if the Borrower has made an LCT Election and (x) any of the ratios or “baskets” for which compliance was determined or tested as of the LCT Test Date are exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of fluctuations in any such ratio or “basket” (including due to fluctuations of the target of any Limited Condition Transaction) at or prior to the consummation of the relevant Limited Condition Transaction, such “baskets” or ratios and other provisions will be deemed not to have been exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction is permitted hereunder (providedpermissibility of any action, for the avoidance of doubtchange, transaction or event that the Borrower or any other Group Member may rely upon any improvement in any such ratio or “basket” availability) and (y) in connection with any subsequent requires a calculation of any ratio or “basket” availability on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement or Public Offer for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or “basket” availability shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of debt and the use of proceeds thereof (but without netting the cash proceeds thereof)) had been consummated. The provisions of this Section 1.09(a) shall, for the avoidance of doubt, apply in respect of the incurrence of any Incremental Facility. For the avoidance of doubt, the making of an LCT Election shall not require notice to the Administrative Agent or any other Person. For the further avoidance of doubt, in the absence of an LCT Election, unless specifically stated in this Agreement to be otherwise, all determinations of (x) compliance with any financial ratio or test (including, without limitationincluding Section 6.10(a), Section 6.106.10(b), Section 6.10(c), any First Lien Net Leverage Ratio test, any Secured Rent Adjusted Net Leverage Ratio test, any Total Rent Adjusted Net Leverage Ratio test, test and/or any Interest Fixed Charge Coverage Ratio test, and/or any other the amount of Consolidated Adjusted EBITDA, Consolidated Adjusted EBITDAR or Consolidated Total Assets), such financial ratio or testtest shall be calculated (subject to clause (a) and/or any cap expressed as a percentage of Consolidated EBITDA or any other financial metric, (yabove) the accuracy of any representation and warranties, or any requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (z) any availability test under any “baskets” shall, in each case, be made as of the applicable date of the consummation of the Specified Transaction or at the time the applicable such action is taken, 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 occur be deemed to have occurred solely as a result of a change in any such financial ratio or test, cap, financial metric, test or “basket” availability amount occurring after such timecalculation, or after the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be.
(bc) 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 6.10, including any First Lien Rent Adjusted Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Fixed Charge Coverage Ratio test and/or any Interest Coverage Total Rent Adjusted Net Leverage Ratio test) (any such amountsamount, including any such amount drawn or deemed to have been drawn under any revolving credit facility and, for the avoidance of doubt, any amount that is expressed as a percentage of Consolidated Adjusted EBITDA, Consolidated Adjusted EBITDAR or Consolidated Total Assets, a “Fixed AmountsAmount”) substantially concurrently (or as part of a series of related transactions) 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 limitationincluding Section 6.10(a), Section 6.106.10(b), Section 6.10(c), any First Lien Net Leverage Ratio test, any Total Rent Adjusted Net Leverage Ratio test, any Secured Rent Adjusted Net Leverage Ratio test, any Fixed Charge Coverage Ratio test and/or any Interest Coverage Total Rent Adjusted Net Leverage Ratio test) (any such amountsamount, the an “Incurrence-Based AmountsAmount”), it is understood and agreed that (i) the any Fixed Amounts (and any cash proceeds thereof and any concurrent borrowing under a revolving facility, including a Borrowing consisting of RC Facility Loans or any other revolving facility) Amount shall be disregarded, and disregarded in the incurrence calculation of the financial ratio or test applicable to the relevant Incurrence-Based Amount shall be calculated, first without giving effect to any Fixed Amount, but giving full pro forma effect to the use of proceeds of such Fixed Amount and (ii) except as provided in the incurrence preceding clause (i), pro forma effect shall be given to the entire transaction. The Borrower may elect that any amount incurred or transaction entered into (or consummated) in reliance on one or more of the any Incurrence-Based Amount or any Fixed Amount in its sole discretion; provided that, unless the Borrower elects otherwise, each such amount or transaction shall be calculated thereafterdeemed incurred, entered into or consummated first under any Incurrence-Based Amount to the maximum extent permitted thereunder.
(cd) Notwithstanding anything The principal amount of any non-interest bearing Indebtedness or other discount security constituting Indebtedness at any date shall be the principal amount thereof that would be shown on a balance sheet of the Borrower dated such date prepared in accordance with GAAP.
(e) 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 contrary hereincreation, incurrence, assumption, or the permission or sufferance to exist of a Lien for purposes of the covenants described in Article VI, if Section 6.02.
(f) With respect to any transaction or action would be permitted pursuant to one or more provisions described therein, the Borrower may divide and classify such transaction or action within any covenant in any manner pro forma calculation that complies with the covenants set forth therein, and may later divide and reclassify any such transaction or action so long as the transaction or action (as so divided and/or reclassified) would be permitted is required to be made in connection with any acquisition or similar Investment in respect of which financial statements for the applicable target are not available for the same Test Period for which financial statements of the Borrower are available, the Borrower shall make the relevant calculation on the basis of the relevant available financial statements (even if for differing periods) or such other commercially reasonable basis as the Borrower may elect.
(g) In connection with the implementation or assumption of any revolving commitment and/or any delayed draw commitment (in each case, other than any such commitment implemented pursuant to Section 2.22) in reliance on any Incurrence-Based Amount, the applicable exception Borrower may, in its sole discretion elect to, by written notice to the Administrative Agent (a “Specified Commitment Notice”), either (a) treat all or any portion of such revolving commitment and/or delayed draw commitment as of having been fully drawn on the date of implementation or assumption (such reclassification; provided that if commitment (or portion thereof), a “Specified Commitment”), in which case (i) the Borrower shall not be required to comply with any financial ratio or test governing in connection with any applicable Incurrence-Based Amount would be satisfied in any subsequent period following drawing thereunder after the utilization date of any Fixed Amountincurrence or assumption and (ii) other than for purposes of (A) the Applicable Rate, (B) the Commitment Fee Rate and/or (C) actual compliance with Section 6.10(a), Section 6.10(b), Section 6.10(c), the amount of such reclassification Specified Commitment shall be deemed to have automatically occurred been an actual incurrence of Indebtedness thereunder on the date of implementation or assumption for purposes of calculating any Incurrence-Based Amount or (b) test the permissibility of all or any portion of any drawing under such revolving commitment and/or delayed draw commitment on the date of such drawing (if not elected by any), in which case, such revolving commitment and/or delayed draw commitment (or portion thereof) shall only be treated as drawn for purposes of any Incurrence-Based Amount to the Borrowerextent of any actual drawing thereunder that is outstanding at the applicable time of determination. It is understood and agreed that the Borrower may, at any time in its sole discretion, (x) deliver a Specified Commitment Notice with respect to any revolving commitment and/or delayed draw commitment and/or (y) withdraw any Specified Commitment Notice with respect to all or any portion of any revolving commitment and/or delayed draw commitment and instead elect to treat such revolving commitment and/or delayed draw commitment in accordance with clause (a) or (b) of the immediately preceding sentence.
(h) It is understood and agreed that the Borrower and/or any Restricted Subsidiary may incur Indebtedness permitted under any provision of Section 6.01 to refinance Indebtedness originally incurred under the same provision of Section 6.01 while the Indebtedness being refinanced remains outstanding so long as the proceeds of the applicable refinancing Indebtedness are promptly deposited with the trustee or other applicable representative of the holders of the Indebtedness being refinanced, which proceeds will be applied to satisfy and discharge the Indebtedness being refinanced in accordance with the documentation governing such Indebtedness.
Appears in 2 contracts
Samples: Credit Agreement (Cava Group, Inc.), Credit Agreement (Cava Group, Inc.)
Certain Calculations and Tests. (a) Notwithstanding anything in to the contrary herein, to the extent that the terms of this Agreement or any Loan Document to the contrary, for purposes of require (i) determining compliance with any provision in this Agreement or any Loan Document that requires the calculation of any financial ratio or test (including, without limitationincluding Section 6.10(a), Section 6.106.10(b), Section 6.10(c), any First Lien Rent Adjusted Net Leverage Ratio test, any Secured Total Rent Adjusted Net Leverage Ratio test, Total Net Leverage Ratio test, test and/or any Interest Fixed Charge Coverage Ratio test, ) and/or any other financial ratio cap expressed as a percentage of Consolidated Adjusted EBITDA, Consolidated Adjusted EBITDAR or test)Consolidated Total Assets, (ii) determining compliance with representations and warranties or the requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or ), (iii) testing the making or accuracy of any representation and/or warranty or (iv) compliance with availability under any basket or cap measured (including any basket or cap expressed as a percentage of Consolidated Adjusted EBITDA or any other financial metric or by reference to the Available Amount, or any other availability of a “basket” or exception set forth in this AgreementConsolidated Total Assets), in each case, a condition to (A) the consummation of any transaction in connection with a Limited Condition Transactionany acquisition or similar Investment (including the assumption or incurrence of Indebtedness), (B) the making of any Restricted Payment and/or (C) the making of any Restricted Debt Payment, the date determination of determinationwhether the relevant condition is satisfied may be made, at the election of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), will be deemed to be (1) in the case of any acquisition or other Investmentsimilar Investment (including with respect to any Indebtedness contemplated, Disposition, incurrence of Indebtedness assumed or any transaction related to the foregoing, incurred in each case not prohibited hereunderconnection therewith), at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) either (x) the execution of the definitive acquisition agreements or other binding contracts or agreements, or the establishment of a commitment, as applicable, agreement with respect to such acquisition, acquisition or Investment, Disposition, Indebtedness or related transaction (or, solely y) in connection with an acquisition to which the United Kingdom City Code on Takeovers or Takeover and Mergers (or any comparable Requirement of Law) applies, the date on which a “Rule 2.7 Announcementannouncement” of a firm intention to make an offer or similar announcement or determination in another jurisdiction subject to laws similar to the City Code in respect of such the target company made in compliance with the City Code of an acquisition (or similar laws or practices in other jurisdictions (a “Public Offer”)equivalent notice under comparable Requirements of Law) or (yz) the consummation of such acquisition, acquisition or Investment, Disposition, incurrence of Indebtedness or related transaction, (2) in the case of any Restricted PaymentPayment (including with respect to any Indebtedness contemplated or incurred in connection therewith), at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) either (x) the declaration of such Restricted Payment or (y) the making of such Restricted Payment and (3) in the case of any Restricted Debt PaymentPayment (including with respect to any Indebtedness contemplated or incurred in connection therewith), at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) either (x) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Debt Payment or (y) the making of such Restricted Debt Payment (the applicable date pursuant to clause (1)Payment, (2) or (3) above, as applicable, the “LCT Test Date”), and ifin each case, after such ratios and other provisions are measured giving effect, on a Pro Forma Basis Basis, to (disregarding for I) the purposes of such pro forma calculation any Borrowing under the RC Facility or any other revolving facility) after giving effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) andrelevant acquisition, at the election of the Borrower, any other acquisition or similar Investment, Restricted Payment, Restricted Debt Payment and/or any related Indebtedness (including the intended use of proceeds thereof) and (II) to the extent definitive documents in respect thereof have been executed, the Restricted Payment has been declared or Disposition that has not been consummated but delivery of notice with respect to a Restricted Debt Payment has been delivered (which definitive documents, declaration or notice has not terminated or expired without the consummation thereof), any other Subject Transaction that the Borrower has elected to test any applicable condition prior to the date of consummation treat in accordance with this Section 1.09(aclause (a), as if they had occurred at the beginning of the most recently completed Test Period ending prior to the LCT Test Date, the Borrower could have taken such action on the relevant LCT Test Date in compliance with such ratios, representation, warranty, absence of Default or Event of Default or “basket”, such ratio, representation, warranty, absence of Default or Event of Default or “basket” shall be deemed to have been complied with. .
(b) For the avoidance of doubt, if the Borrower has made an LCT Election and (x) any of the ratios or “baskets” for which compliance was determined or tested as of the LCT Test Date are exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of fluctuations in any such ratio or “basket” (including due to fluctuations of the target of any Limited Condition Transaction) at or prior to the consummation of the relevant Limited Condition Transaction, such “baskets” or ratios and other provisions will be deemed not to have been exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction is permitted hereunder (providedpermissibility of any action, for the avoidance of doubtchange, transaction or event that the Borrower or any other Group Member may rely upon any improvement in any such ratio or “basket” availability) and (y) in connection with any subsequent requires a calculation of any ratio or “basket” availability on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement or Public Offer for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or “basket” availability shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of debt and the use of proceeds thereof (but without netting the cash proceeds thereof)) had been consummated. The provisions of this Section 1.09(a) shall, for the avoidance of doubt, apply in respect of the incurrence of any Incremental Facility. For the avoidance of doubt, the making of an LCT Election shall not require notice to the Administrative Agent or any other Person. For the further avoidance of doubt, in the absence of an LCT Election, unless specifically stated in this Agreement to be otherwise, all determinations of (x) compliance with any financial ratio or test (including, without limitationincluding Section 6.10(a), Section 6.106.10(b), Section 6.10(c), any First Lien Net Leverage Ratio test, any Secured Rent Adjusted Net Leverage Ratio test, any Total Rent Adjusted Net Leverage Ratio test, test and/or any Interest Fixed Charge Coverage Ratio test, and/or any other the amount of Consolidated Adjusted EBITDA, Consolidated Adjusted EBITDAR or Consolidated Total Assets), such financial ratio or testtest shall be calculated (subject to clause (a) and/or any cap expressed as a percentage of Consolidated EBITDA or any other financial metric, (yabove) the accuracy of any representation and warranties, or any requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (z) any availability test under any “baskets” shall, in each case, be made as of the applicable date of the consummation of the Specified Transaction or at the time the applicable such action is taken, 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 occur be deemed to have occurred solely as a result of a change in any such financial ratio or test, cap, financial metric, test or “basket” availability amount occurring after such timecalculation, or after the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be.
(bc) 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 6.10, including any First Lien Rent Adjusted Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Fixed Charge Coverage Ratio test and/or any Interest Coverage Total Rent Adjusted Net Leverage Ratio test) (any such amountsamount, including any such amount drawn or deemed to have been drawn under any revolving credit facility and, for the avoidance of doubt, any amount that is expressed as a percentage of Consolidated Adjusted EBITDA, Consolidated Adjusted EBITDAR or Consolidated Total Assets, a “Fixed AmountsAmount”) substantially concurrently (or as part of a series of related transactions) 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 limitationincluding Section 6.10(a), Section 6.106.10(b), Section 6.10(c), any First Lien Net Leverage Ratio test, any Total Rent Adjusted Net Leverage Ratio test, any Secured Rent Adjusted Net Leverage Ratio test, any Fixed Charge Coverage Ratio test and/or any Interest Coverage Total Rent Adjusted Net Leverage Ratio test) (any such amountsamount, the an “Incurrence-Based AmountsAmount”), it is understood and agreed that (i) the any Fixed Amounts (and any cash proceeds thereof and any concurrent borrowing under a revolving facility, including a Borrowing consisting of RC Facility Loans or any other revolving facility) Amount shall be disregarded, and disregarded in the incurrence calculation of the financial ratio or test applicable to the relevant Incurrence-Based Amount shall be calculated, first without giving effect to any Fixed Amount, but giving full pro forma effect to the use of proceeds of such Fixed Amount and (ii) except as provided in the incurrence preceding clause (i), pro forma effect shall be given to the entire transaction. The Borrower may elect that any amount incurred or transaction entered into (or consummated) in reliance on one or more of the any Incurrence-Based Amount or any Fixed Amount in its sole discretion; provided that, unless the Borrower elects otherwise, each such amount or transaction shall be calculated thereafterdeemed incurred, entered into or consummated first under any Incurrence-Based Amount to the maximum extent permitted thereunder.
(cd) Notwithstanding anything The principal amount of any non-interest bearing Indebtedness or other discount security constituting Indebtedness at any date shall be the principal amount thereof that would be shown on a balance sheet of the Borrower dated such date prepared in accordance with GAAP.
(e) 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 contrary hereincreation, incurrence, assumption, or the permission or sufferance to exist of a Lien for purposes of the covenants described in Article VI, if Section 6.02.
(f) With respect to any transaction or action would be permitted pursuant to one or more provisions described therein, the Borrower may divide and classify such transaction or action within any covenant in any manner pro forma calculation that complies with the covenants set forth therein, and may later divide and reclassify any such transaction or action so long as the transaction or action (as so divided and/or reclassified) would be permitted is required to be made in connection with any acquisition or similar Investment in respect of which financial statements for the applicable target are not available for the same Test Period for which financial statements of the Borrower are available, the Borrower shall make the relevant calculation on the basis of the relevant available financial statements (even if for differing periods) or such other commercially reasonable basis as the Borrower may elect.
(g) In connection with the implementation or assumption of any revolving commitment and/or any delayed draw commitment (in each case, other than any such commitment implemented pursuant to Section 2.22) in reliance on any Incurrence-Based Amount, the applicable exception Borrower may, in its sole discretion elect to, by written notice to the Administrative Agent (a “Specified Commitment Notice”), either (a) treat all or any portion of such revolving commitment and/or delayed draw commitment as of having been fully drawn on the date of implementation or assumption (such reclassification; provided that if commitment (or portion thereof), a “Specified Commitment”), in which case (i) the Borrower shall not be required to comply with any financial ratio or test governing in connection with any applicable Incurrence-Based Amount would be satisfied in any subsequent period following drawing thereunder after the utilization date of any Fixed Amountincurrence or assumption and (ii) other than for purposes of (A) the Applicable Rate, (B) the Commitment Fee Rate, (C) the Ticking Fee Rate and/or (CD) actual compliance with Section 6.10(a), Section 6.10(b), Section 6.10(c), the amount of such reclassification Specified Commitment shall be deemed to have automatically occurred been an actual incurrence of Indebtedness thereunder on the date of implementation or assumption for purposes of calculating any Incurrence-Based Amount or (b) test the permissibility of all or any portion of any drawing under such revolving commitment and/or delayed draw commitment on the date of such drawing (if not elected by any), in which case, such revolving commitment and/or delayed draw commitment (or portion thereof) shall only be treated as drawn for purposes of any Incurrence-Based Amount to the Borrowerextent of any actual drawing thereunder that is outstanding at the applicable time of determination. It is understood and agreed that the Borrower may, at any time in its sole discretion, (x) deliver a Specified Commitment Notice with respect to any revolving commitment and/or delayed draw commitment and/or (y) withdraw any Specified Commitment Notice with respect to all or any portion of any revolving commitment and/or delayed draw commitment and instead elect to treat such revolving commitment and/or delayed draw commitment in accordance with clause (a) or (b) of the immediately preceding sentence.
(h) It is understood and agreed that the Borrower and/or any Restricted Subsidiary may incur Indebtedness permitted under any provision of Section 6.01 to refinance Indebtedness originally incurred under the same provision of Section 6.01 while the Indebtedness being refinanced remains outstanding so long as the proceeds of the applicable refinancing Indebtedness are promptly deposited with the trustee or other applicable representative of the holders of the Indebtedness being refinanced, which proceeds will be applied to satisfy and discharge the Indebtedness being refinanced in accordance with the documentation governing such Indebtedness.
Appears in 2 contracts
Samples: Credit Agreement (Cava Group, Inc.), Credit Agreement (Cava Group, Inc.)
Certain Calculations and Tests. (a) Notwithstanding anything in to the contrary herein, to the extent that the terms of this Agreement or any Loan Document to the contrary, for purposes of require (i) determining compliance with any provision in this Agreement or any Loan Document that requires the calculation of any financial ratio or test (including, without limitation, Section 6.106.13(a) hereof, any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test or any Total Leverage Ratio test, Total Net Leverage Ratio test, any Interest Coverage Ratio test, ) and/or any other financial ratio cap expressed as a percentage of Consolidated Adjusted EBITDA or test), (ii) determining compliance with representations and warranties or the requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (iii) testing any cap measured as a percentage condition to (A) the consummation of Consolidated EBITDA or any other financial metric or by reference to the Available Amount, or any other availability of a “basket” or exception set forth in this Agreement, in each case, transaction in connection with a Limited Condition Transactionany acquisition or similar Investment (including the assumption or incurrence of Indebtedness, other than any Credit Extension made pursuant to Section 4.02 or any Initial Delayed Draw Term Loan Extension made pursuant to Section 4.03), and/or (B) the making of any Restricted Payment, the date determination of determinationwhether the relevant condition is satisfied may be made, at the election of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), will be deemed to be (1) in the case of any acquisition or other Investment, Disposition, incurrence of similar Investment (including with respect to any Indebtedness contemplated or any transaction related to the foregoing, incurred in each case not prohibited hereunderconnection therewith), at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) either (x) the execution of the definitive acquisition agreements or other binding contracts or agreements, or the establishment of a commitment, as applicable, with respect to such acquisition, Investment, Disposition, Indebtedness or related transaction (or, solely in connection with an any acquisition to which the United Kingdom City Code on Takeovers Takeover and Mergers (or any comparable law, rule or regulation in any other jurisdiction) applies, the date on which a “Rule 2.7 Announcementannouncement” of a firm intention to make an offer or similar announcement or determination in another jurisdiction subject to laws similar to the City Code in respect of the relevant target of such target company made acquisition (or equivalent notice under such comparable law, rule or regulations in compliance such other jurisdiction) (y) the execution of the definitive agreement with the City Code respect to such acquisition or similar laws or practices in other jurisdictions (a “Public Offer”)) Investment or (yz) the consummation of such acquisition, Investment, Disposition, incurrence of Indebtedness acquisition or related transaction, Investment and (2) following the consummation of an IPO, in the case of any Restricted PaymentPayment (including with respect to any Indebtedness contemplated or incurred in connection therewith), at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) the declaration of such Restricted Payment (so long as such Restricted Payment is paid within 60 days of the declaration thereof) or (y) the making of such Restricted Payment and (3) in the case of any Restricted Debt Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Debt Payment or (y) the making of such Restricted Debt Payment (the applicable date pursuant to clause (1), (2) or (3) above, as applicable, the “LCT Test Date”), and ifin each case, after such ratios and other provisions are measured giving effect, on a Pro Forma Basis Basis, to (disregarding for I) the purposes of such pro forma calculation relevant acquisition, Investment, Restricted Payment, and/or any Borrowing under the RC Facility or any other revolving facility) after giving effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith related Indebtedness (including any incurrence of Indebtedness and the intended use of proceeds thereof) andand (II) to the extent definitive documents in respect thereof have been executed, at an announcement of intention to make an offer, or the election declaration of any Restricted Payment has been made (which definitive documents, announcement or declaration has not terminated or expired without the Borrowerconsummation thereof), any other acquisition or similar additional acquisition, Investment, Restricted Payment, Restricted Debt Payment or Disposition and/or any related Indebtedness (including the intended use of proceeds thereof) that has not been consummated but with respect to which the Borrower has elected to test any applicable condition prior to the date of consummation treat in accordance with this Section 1.09(aclause (a), as if they had occurred at the beginning of the most recently completed Test Period ending prior to the LCT Test Date, the Borrower could have taken such action on the relevant LCT Test Date in compliance with such ratios, representation, warranty, absence of Default or Event of Default or “basket”, such ratio, representation, warranty, absence of Default or Event of Default or “basket” shall be deemed to have been complied with. .
(b) For the avoidance of doubt, if the Borrower has made an LCT Election and (x) any of the ratios or “baskets” for which compliance was determined or tested as of the LCT Test Date are exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of fluctuations in any such ratio or “basket” (including due to fluctuations of the target of any Limited Condition Transaction) at or prior to the consummation of the relevant Limited Condition Transaction, such “baskets” or ratios and other provisions will be deemed not to have been exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction is permitted hereunder (providedpermissibility of any action, for the avoidance of doubtchange, transaction or event that the Borrower or any other Group Member may rely upon any improvement in any such ratio or “basket” availability) and (y) in connection with any subsequent requires a calculation of any ratio or “basket” availability on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement or Public Offer for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or “basket” availability shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of debt and the use of proceeds thereof (but without netting the cash proceeds thereof)) had been consummated. The provisions of this Section 1.09(a) shall, for the avoidance of doubt, apply in respect of the incurrence of any Incremental Facility. For the avoidance of doubt, the making of an LCT Election shall not require notice to the Administrative Agent or any other Person. For the further avoidance of doubt, in the absence of an LCT Election, unless specifically stated in this Agreement to be otherwise, all determinations of (x) compliance with any financial ratio or test (including, without limitation, Section 6.106.13(a), any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, any Total Net Leverage Ratio testtest and/or the amount of Consolidated Adjusted EBITDA), any Interest Coverage Ratio test, and/or any other such financial ratio or test) and/or any cap expressed as a percentage of Consolidated EBITDA or any other financial metric, (y) the accuracy of any representation and warranties, or any requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (z) any availability test under any “baskets” shall, in each case, shall be made as of the applicable date of the consummation of the Specified Transaction or calculated at the time the applicable such action is takentaken (subject to clause (a) 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 occur be deemed to have occurred solely as a result of a change in any such financial ratio or test, cap, financial metric, or “basket” availability test occurring after such timecalculation, or after the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be.
(bc) 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 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Total Leverage Ratio test) (any such amountsamount, the including any such amount drawn under any revolving credit facility, a “Fixed AmountsAmount”) substantially concurrently (with, or as part of a series of related transactions) with prior to, 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 6.106.13(a), any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Total Leverage Ratio test) (any such amountsamount, the an “Incurrence-Based AmountsAmount”), it is understood and agreed that (i) any Fixed Amount shall be disregarded in the calculation of the financial ratio or test applicable to the relevant Incurrence-Based Amount, except that incurrences of Indebtedness and Liens constituting Fixed Amounts shall not be disregarded for purposes of Incurrence-Based Amounts other than with respect to Incurrence-Based Amounts contained in Sections 6.01 and 6.02 and (and any cash proceeds thereof and any concurrent borrowing under a revolving facilityii) except as provided in clause (i), including a Borrowing consisting of RC Facility Loans or any other revolving facility) pro forma effect shall be disregarded, and given to the incurrence entire transaction. The Borrower may elect that amounts incurred or transactions entered into (or consummated) in reliance on one or more of the any Incurrence-Based Amount or any Fixed Amount in its sole discretion; provided, that unless the Borrower elects otherwise, each such amount or transaction shall be calculateddeemed incurred, entered into or consummated first without giving effect to under any Fixed Amount, but giving full pro forma effect to the use of proceeds of such Fixed Amount and (ii) the incurrence of the Fixed Amount shall be calculated thereafter.
(c) Notwithstanding anything to the contrary herein, for purposes of the covenants described in Article VI, if any transaction or action would be permitted pursuant to one or more provisions described therein, the Borrower may divide and classify such transaction or action within any covenant in any manner that complies with the covenants set forth therein, and may later divide and reclassify any such transaction or action so long as the transaction or action (as so divided and/or reclassified) would be permitted to be made in reliance on the applicable exception as of the date of such reclassification; provided that if any financial ratio or test governing any applicable Incurrence-Based Amount to the maximum extent permitted thereunder.
(d) The principal amount of any non-interest bearing Indebtedness or other discount security constituting Indebtedness at any date shall be the principal amount thereof that would be satisfied shown on a balance sheet of the Borrower dated such date prepared in accordance with GAAP.
(e) The increase in any subsequent period following amount secured by any Lien by virtue of the utilization 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 Fixed Amount, such reclassification shall fluctuation in the exchange rate of any applicable currency will not be deemed to have automatically occurred if not elected be the granting of a Lien for purposes of Section 6.02.
(f) With respect to determination of the permissibility of any transaction by Holdings, the Borrower and its subsidiaries under this agreement, the delivery by the BorrowerBorrower of a third party valuation report from (x) a nationally recognized accounting, appraisal, investment banking or consulting firm or (y) another firm reasonably acceptable to the Administrative Agent, in each case, shall be conclusive with respect to the value of the assets covered thereby.
Appears in 2 contracts
Samples: Credit Agreement (Definitive Healthcare Corp.), Credit Agreement (Definitive Healthcare Corp.)
Certain Calculations and Tests. (a) Notwithstanding anything to the contrary herein, but subject to this Section 1.10, all financial ratios and tests (including the Total Debt to Total Assets Ratio, the Senior Debt to Total Assets Ratio and the amount of Consolidated Total Assets and the component definitions of any of the foregoing) contained in this Agreement shall be calculated with respect to any applicable Test Period to give effect to all Subject Transactions on a Pro Forma Basis that occurred on or any Loan Document after the first day of such Test Period and on or prior to the contrary, for purposes date of (i) determining compliance with any provision in this Agreement or any Loan Document that requires the required calculation of any financial ratio or test (which may be after the end of such Test Period); provided, that solely for purposes of calculating quarterly compliance with Section 6.13(a), no Subject Transaction occurring after the last day of the Test Period shall be taken into account or given pro forma effect.
(b) With respect to any Limited Condition Transaction, notwithstanding anything to the contrary in this Agreement:
(i) To the extent that the terms of this Agreement require (A) the making or accuracy of any representations and warranties (other than in connection with any acquisition or similar Investment, the Specified Representations as related thereto), (B) compliance with any Financial Incurrence Test (including, without limitation, Section 6.106.13(a) hereof, any First Lien Net Leverage Total Debt to Total Assets Ratio test or any Senior Debt to Totals Assets Ratio test, any Secured Net Leverage Ratio test, Total Net Leverage Ratio test, any Interest Coverage Ratio test), and/or any other financial ratio or test)Basket expressed as a percentage of Consolidated Total Assets, (iiC) determining compliance with representations and warranties or the requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default), (D) compliance with, or determination of availability under, any Basket (including any categories (or subcategories) or items (iiior sub-items) testing under Section 2.22, 6.01, 6.02, 6.04, 6.06, 6.07 or 6.09 or any cap applicable defined terms used in any of the foregoing, including any measured as a percentage of Consolidated EBITDA Total Assets) or (E) compliance with, or satisfaction of, any other financial metric condition or by reference to the Available Amount, or any other availability of a “basket” or exception set forth in this Agreementrequirement, in each case, in connection with a any Limited Condition TransactionTransactions (or any actions and transactions in connection with any Limited Condition Transaction (including the incurrence of any Indebtedness (and related Liens) pursuant to Sections 2.22 and 6.01)) and any actions or transactions related thereto, determination of whether the date of determinationrelevant conditions or requirement described in subclauses (A) through (E) above (the “LCT Requirements”) are satisfied or complied with may be made, at the election of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), will be deemed to be (1) in the case of any acquisition or other Investment, Disposition, incurrence of Indebtedness or any transaction related to the foregoing, in each case not prohibited hereunder, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) either date (x) the execution of the definitive acquisition agreements or other binding contracts or agreements, or the establishment of a commitment, as applicable, with respect to such acquisition, Investment, Disposition, Indebtedness or related transaction (or, solely in connection with an acquisition to which the United Kingdom City Code on Takeovers and Mergers applies, the date on which a “Rule 2.7 Announcement” of a firm intention to make an offer or similar announcement or determination in another jurisdiction subject to laws similar to the City Code in respect of such target company made in compliance with the City Code or similar laws or practices in other jurisdictions (a “Public Offer”)) or (y) the consummation of such acquisition, Investment, Disposition, incurrence of Indebtedness or related transaction, (2) in the case of any Restricted Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) the declaration of such Restricted Payment or (y) the making of such Restricted Payment and (3) in the case of any Restricted Debt Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Debt Payment or (y) the making of such Restricted Debt Payment (the applicable date pursuant to clause (1), (2) or (3) above, as applicable, the “LCT Test Date”) the definitive agreements for such Limited Condition Transaction is entered into (or, if applicable, the date of delivery of irrevocable notice (which may be conditional or subject to deferral) with respect to Indebtedness or declaration of a Restricted Payment).
(ii) If, and if, after such ratios and other provisions are measured on a Pro Forma Basis (disregarding for the purposes of such pro forma calculation any Borrowing under the RC Facility or any other revolving facility) after giving effect to the Limited Condition Transaction (any related actions and transactions, including the other transactions to be entered into in connection therewith (including any incurrence of any Indebtedness (and related Liens) pursuant to Sections 2.22 and 6.01 and the use of proceeds thereofthereof and related Subject Transactions) and, at the election of the Borrower, and any other acquisition or similar Investment, Restricted Payment, Restricted Debt Payment or Disposition that has not been consummated but with respect to which the Borrower has elected to test any applicable condition prior to the date of consummation in accordance with this Section 1.09(a), as if they had occurred at the beginning of the most recently completed Test Period ending prior to the LCT Test Daterelated pro forma adjustments on a Pro Forma Basis, the Borrower could or any of its Restricted Subsidiaries would have taken been permitted to take such action actions or consummate such Limited Condition Transaction (and all related actions and transactions) on the relevant LCT Test Date in compliance with such ratiosany applicable LCT Requirements, representation, warranty, absence of Default or Event of Default or “basket”, such ratio, representation, warranty, absence of Default or Event of Default or “basket” all applicable LCT Requirements shall be deemed to have been complied with. For the avoidance of doubt, if with (or satisfied) for all purposes and the Borrower has made an and its Restricted Subsidiaries may consummate such Limited Condition Transaction and take or consummate all related actions and transactions at any time subsequent to the LCT Election and (x) Test Date regardless of whether any of the ratios or “baskets” for which compliance was LCT Requirement determined or tested as of the LCT Test Date are exceeded would at any time subsequent to such LCT Test Date fail to be complied with or satisfied for any reason whatsoever (or, with respect including due to the Interest Coverage Ratiooccurrence or existence of any event, not reached) fact or circumstance), and no Default or Event of Default shall be deemed to have occurred as a result of fluctuations in any such ratio or “basket” (including due to fluctuations of the target of any Limited Condition Transaction) at or prior to the consummation of the relevant such Limited Condition TransactionTransaction and taking or consummation of all related actions and transactions.
(iii) If internal financial statements of the Borrower of the type described in Section 5.01(a) or Section 5.01(b), as applicable, are available (as determined in good faith by the Borrower) or such financial statements have been delivered pursuant to Section 5.01(a) or Section 5.01(b), as applicable, (a) the Borrower may elect, in its sole discretion, to re-determine compliance with, or satisfaction of, all applicable LCT Requirements on the basis of such financial statements, in which case, such “baskets” or ratios and other provisions will date of re-determination shall thereafter be deemed not to have been exceeded (or, with respect to be the Interest Coverage Ratio, not reached) as a result of such fluctuations solely applicable LCT Test Date for purposes of determining whether the Limited Condition Transaction is permitted hereunder (providedsuch ratios, for the avoidance of doubttests or baskets, that the Borrower or any other Group Member may rely upon any improvement in any such ratio or “basket” availability) and (yb) except as contemplated in the foregoing clause (a), compliance with such ratios, tests or baskets (and any related requirements and conditions) shall not be determined or tested at any time after the applicable LCT Test Date.
(iv) In calculating the availability under any ratio, test, basket, cap or threshold in connection with any subsequent calculation of action or transaction unrelated to such Limited Condition Transaction (including any ratio or “basket” availability on or other Limited Condition Transaction and related actions and transactions) following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement agreement, the notice redemption, purchase or Public Offer repayment or the declaration for such Limited Condition Transaction is terminated terminated, expires, passes or expires is revoked, as applicable, without consummation of such Limited Condition Transaction, any such ratio ratio, test, basket, cap or “basket” availability threshold shall be calculated on a Pro Forma Basis assuming determined or tested giving pro forma effect to such Limited Condition Transaction (and other transactions in connection therewith related actions and transactions).
(including any incurrence c) For purposes of debt and determining the use of proceeds thereof (but without netting the cash proceeds thereof)) had been consummated. The provisions of this Section 1.09(a) shall, for the avoidance of doubt, apply in respect of the incurrence permissibility of any Incremental Facility. For the avoidance action, change, transaction or event that requires a calculation of doubt, the making of an LCT Election shall not require notice to the Administrative Agent or any other Person. For the further avoidance of doubt, in the absence of an LCT Election, unless specifically stated in this Agreement to be otherwise, all determinations of (x) compliance with any financial ratio or test (including, without limitation, Section 6.106.13(a) hereof, any First Lien Net Leverage Total Debt to Total Assets Ratio test, any Secured Net Leverage Senior Debt to Total Assets Ratio testtest and/or the amount of Consolidated Total Assets), any Total Net Leverage Ratio test, any Interest Coverage Ratio test, and/or any other such financial ratio or test) and/or any cap expressed as a percentage of Consolidated EBITDA or any other financial metric, (y) the accuracy of any representation and warranties, or any requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (z) any availability test under any “baskets” shall, in each case, shall be made as of the applicable date of the consummation of the Specified Transaction or calculated at the time the applicable such action is takentaken (subject to clause (b) 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 occur or be deemed to have occurred solely as a result of a change in any such financial ratio or test, cap, financial metric, or “basket” availability test occurring after such timecalculation.
(bd) Notwithstanding anything in this Agreement or any Loan Document to the contrary hereincontrary, in calculating any Non-Fixed Basket any (x) Indebtedness incurred to fund original issue discount and/or upfront fees with respect to Indebtedness incurred under an applicable Non-Fixed Basket or in a concurrent transaction, a single transaction or a series of related transactions with the amount incurred, or transaction entered into or consummated, under an applicable Non-Fixed Basket and (y) any amounts incurred incurred, or transactions entered into (or consummated) , in reliance on a provision Fixed Basket (including the Free and Clear Incremental Amount) in a concurrent transaction, a single transaction or a series of this Agreement related transactions with the amount incurred, or transaction entered into or consummated, under an applicable Non-Fixed Basket, in each case of the foregoing clauses (x) and (y), shall be disregarded in the calculation of such Non-Fixed Basket. For all purposes hereunder, (i) “Fixed Basket” shall mean any Basket that does not require is subject to a fixed-dollar limit (including Baskets based on a percentage of Consolidated Total Assets), (ii) “Non-Fixed Basket” shall mean any Basket that is subject to compliance with a financial ratio or test (including, without limitation, Section 6.10the Financial Covenant, any First Lien Net Leverage the Senior Debt to Total Assets Ratio test, any and the Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Ratio testDebt to Total Assets Ratio) (any such amounts, the “Fixed Amounts”) substantially concurrently (or as part of a series of related transactions) 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 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the a “Financial Incurrence-Based Amounts”), it is understood and agreed that (i) the Fixed Amounts (and any cash proceeds thereof and any concurrent borrowing under a revolving facility, including a Borrowing consisting of RC Facility Loans or any other revolving facility) shall be disregarded, and the incurrence of the Incurrence-Based Amount shall be calculated, first without giving effect to any Fixed Amount, but giving full pro forma effect to the use of proceeds of such Fixed Amount and (ii) the incurrence of the Fixed Amount shall be calculated thereafter.
(c) Notwithstanding anything to the contrary herein, for purposes of the covenants described in Article VI, if any transaction or action would be permitted pursuant to one or more provisions described therein, the Borrower may divide and classify such transaction or action within any covenant in any manner that complies with the covenants set forth therein, and may later divide and reclassify any such transaction or action so long as the transaction or action (as so divided and/or reclassified) would be permitted to be made in reliance on the applicable exception as of the date of such reclassification; provided that if any financial ratio or test governing any applicable Incurrence-Based Amount would be satisfied in any subsequent period following the utilization of any Fixed Amount, such reclassification shall be deemed to have automatically occurred if not elected by the Borrower.
Appears in 2 contracts
Samples: Term Loan Credit Agreement (Blackstone Mortgage Trust, Inc.), Term Loan Credit Agreement (Blackstone Mortgage Trust, Inc.)
Certain Calculations and Tests. (a) Notwithstanding anything in this Agreement or any Loan Document to the contrary, for purposes when calculating any applicable ratio or determining other compliance with this Agreement (including the determination of (i) determining compliance with any provision in of this Agreement which requires that no Specified Event of Default, Default or any Loan Document that requires Event of Default has occurred, is continuing or would result therefrom, the calculation accuracy of any financial ratio or test (including, without limitation, Section 6.10, any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, Total Net Leverage Ratio test, any Interest Coverage Ratio test, and/or any other financial ratio or test), (ii) determining compliance with representations and warranties or the requirement regarding 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 absence consummation of a Limited Condition Transaction (but excluding the determination of compliance with Excess Availability, Distribution Conditions, Payment Conditions or any other ratios or baskets based upon the Borrowing Base)), 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 (or any type other than, in the case of Default or Event of Defaultclause (a) below, the Specified Representations) or the satisfaction of applicable covenants (iii) testing any cap measured as a percentage but excluding the determination of Consolidated EBITDA compliance with Excess Availability, Distribution Conditions, Payment Conditions or any other financial metric ratios or by reference to baskets based upon the Available Amount, or any other availability of a “basket” or exception set forth in this AgreementBorrowing Base)) shall, in each case, in connection with a Limited Condition Transaction, the date of determination, case at the election option of the Borrower Company (the BorrowerCompany’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election” and such date selected, the “LCT Test Date”), will be deemed to be the date that
(1a) in the case of any acquisition or other InvestmentInvestment (including with respect to any Indebtedness contemplated or incurred in connection therewith), Disposition, incurrence of Indebtedness or any transaction related to the foregoing, in each case not prohibited hereundereither, at the time option of the Company, (i) as of the date the definitive acquisition agreement for such acquisition or other Investment is entered into (or on the basis of the financial statements for the most recently ended Test Period any documentation or agreement with a substantially similar effect as a binding acquisition agreement becomes effective) or (ii) at the time of) either (x) the execution of the definitive relevant acquisition agreements or other binding contracts or agreements, or the establishment of a commitment, as applicable, with respect to such acquisition, Investment, Disposition, Indebtedness or related transaction Investment is consummated,
(or, solely in connection with an acquisition to which the United Kingdom City Code on Takeovers and Mergers applies, the date on which a “Rule 2.7 Announcement” of a firm intention to make an offer or similar announcement or determination in another jurisdiction subject to laws similar to the City Code in respect of such target company made in compliance with the City Code or similar laws or practices in other jurisdictions (a “Public Offer”)) or (y) the consummation of such acquisition, Investment, Disposition, incurrence of Indebtedness or related transaction, (2b) in the case of any Restricted PaymentPayment (including with respect to any Indebtedness contemplated or incurred in connection therewith), either, at the option of the Company, (i) at the time such Restricted Payment is declared or (ii) at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) the declaration of such Restricted Payment or (y) the making of such Restricted Payment and and/or
(3c) in the case of any Restricted Debt Paymentirrevocable Indebtedness repurchase or repayment (including with respect to any Indebtedness contemplated or incurred in connection therewith), either, at the option of the Company, (i) at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Debt Payment repurchase or repayment or (yii) at the time of the making of such Restricted Debt Payment repurchase or repayment, in each case, after giving effect to the relevant transaction, any related Indebtedness (including the applicable date pursuant to clause (1), (2intended use of proceeds thereof) or (3) above, as applicable, the “LCT Test Date”), 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 (disregarding for the purposes of such pro forma calculation any Borrowing under the RC Facility or any other revolving facility) after giving effect to the such Limited Condition Transaction and the such other transactions related and specified actions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) and, at the election of the Borrower, any other acquisition or similar Investment, Restricted Payment, Restricted Debt Payment or Disposition that has not been consummated but with respect to which the Borrower has elected to test any applicable condition prior to the date of consummation in accordance with this Section 1.09(a), as if they had occurred at the beginning of the most recently completed Test Period 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 Borrower Company could have taken such action on the relevant LCT Test Date in compliance with such ratios, representation, warranty, absence of Default or Event of Default or “basket”applicable ratios and provisions, such ratio, representation, warranty, absence of Default or Event of Default or “basket” applicable ratios and provisions shall be deemed to have been complied with. For the avoidance of doubt, if the Borrower has made an LCT Election and (x) any of the ratios or “baskets” for which compliance was determined or tested as of the LCT Test Date are exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of fluctuations in any such ratio or “basket” (including due to fluctuations of the target of any Limited Condition Transaction) at or prior to the consummation of the relevant Limited Condition Transaction, such “baskets” or ratios and other provisions will be deemed not to have been exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction is permitted hereunder (provided, for the avoidance of doubt, that the Borrower or any other Group Member may rely upon any improvement in any such ratio or “basket” availability) and (y) in connection with any subsequent calculation of any ratio or “basket” availability on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement or Public Offer for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or “basket” availability shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of debt and the use of proceeds thereof (but without netting the cash proceeds thereof)) had been consummated. The provisions of this Section 1.09(a) shall, for the avoidance of doubt, apply in respect of the incurrence of any Incremental Facility. For the avoidance of doubt, the making of an LCT Election shall not require notice to the Administrative Agent or any other Person. For the further avoidance of doubt, in the absence of an LCT Election, unless specifically stated in this Agreement to be otherwise, all determinations of (x) compliance with any financial ratio or test (including, without limitation, Section 6.10, any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, any Total Net Leverage Ratio test, any Interest Coverage Ratio test, and/or any other financial ratio or test) and/or any cap expressed as a percentage of Consolidated EBITDA or any other financial metric, (y) the accuracy of any representation and warranties, or any requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (z) any availability test under any “baskets” shall, in each case, be made as of the applicable date of the consummation of the Specified Transaction or the time the applicable action is taken, change is made, transaction is consummated or event occurs, as the case may be, and no Default or Event of Default shall occur solely as a result of a change in any such financial ratio or test, cap, financial metric, or “basket” availability occurring after such time
(b) 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 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Fixed Amounts”) substantially concurrently (or as part of a series of related transactions) 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 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that (i) the Fixed Amounts (and any cash proceeds thereof and any concurrent borrowing under a revolving facility, including a Borrowing consisting of RC Facility Loans or any other revolving facility) shall be disregarded, and the incurrence of the Incurrence-Based Amount shall be calculated, first without giving effect to any Fixed Amount, but giving full pro forma effect to the use of proceeds of such Fixed Amount and (ii) the incurrence of the Fixed Amount shall be calculated thereafter.
(c) Notwithstanding anything to the contrary herein, for purposes of the covenants described in Article VI, if any transaction or action would be permitted pursuant to one or more provisions described therein, the Borrower may divide and classify such transaction or action within any covenant in any manner that complies with the covenants set forth therein, and may later divide and reclassify any such transaction or action so long as the transaction or action (as so divided and/or reclassified) would be permitted to be made in reliance on the applicable exception as of the date of such reclassification; provided that if any financial ratio or test governing any applicable Incurrence-Based Amount would be satisfied in any subsequent period following the utilization of any Fixed Amount, such reclassification shall be deemed to have automatically occurred if not elected by the Borrower.,
Appears in 2 contracts
Samples: Credit Agreement (Xerox Corp), Credit Agreement (Xerox Corp)
Certain Calculations and Tests. (a) Notwithstanding anything to the contrary herein, but subject to Sections 1.06(b) and (c), all financial ratios and tests (including the Leverage Ratio, the Interest Coverage Ratio, the Aggregation Test and the amount of Consolidated EBITDA) contained in this Agreement or that are calculated with respect to any Loan Document Test Period shall be calculated with respect to such Test Period on a Pro Forma basis.
(b) Notwithstanding anything to the contrarycontrary herein (including in connection with any calculation made on a Pro Forma basis), for purposes to the extent that the terms of this Agreement require (i) determining compliance with any provision in this Agreement or any Loan Document that requires the calculation of any financial ratio or test (including, without limitation, Section 6.107.01, Section 7.02 and Section 5.09(a), any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, Total Net Leverage Ratio test, Aggregation Test and/or any Interest Coverage Ratio test, ) and/or any other financial ratio cap expressed as a percentage of Consolidated EBITDA or test), (ii) determining compliance with representations and warranties or the requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (iii) testing any cap measured the making of representations and warranties by each Loan Party as a percentage of Consolidated EBITDA or any other financial metric or by reference to the Available Amount, or any other availability of a “basket” or exception set forth in this Agreement, in each case, the Loan Documents as conditions to (A) the making of any acquisition or similar Investment or the consummation of any transaction in connection with a Limited Condition Transactiontherewith (including the assumption or incurrence of Indebtedness) and/or (B) the making of any Restricted Payment, the date determination of determinationwhether the relevant condition is satisfied may be made, at the election (any such election, a “Testing Election”) of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), will be deemed to be (1) in the case of any acquisition or other similar Investment, Disposition, incurrence of Indebtedness or any transaction related to the foregoing, in each case not prohibited hereunder, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) either (x) the execution of the definitive acquisition agreements or other binding contracts or agreements, or the establishment of a commitment, as applicable, agreement with respect to such acquisition, Investment, Disposition, Indebtedness acquisition or related transaction (or, solely in connection with an acquisition to which the United Kingdom City Code on Takeovers and Mergers applies, the date on which a “Rule 2.7 Announcement” of a firm intention to make an offer or similar announcement or determination in another jurisdiction subject to laws similar to the City Code in respect of such target company made in compliance with the City Code or similar laws or practices in other jurisdictions (a “Public Offer”)) Investment or (y) the consummation of such acquisition, acquisition or Investment, Disposition, incurrence of Indebtedness or related transaction, (2) in the case of any Restricted Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) the declaration of such Restricted Payment or (y) the making of such Restricted Payment and (3) in the case of any Restricted Debt Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Debt Payment or (y) the making of such Restricted Debt Payment (the applicable date pursuant to clause (1), (2) or (3) above, as applicable, the “LCT Test Date”), and if, after such ratios and other provisions are measured on a Pro Forma Basis (disregarding for the purposes of such pro forma calculation any Borrowing under the RC Facility or any other revolving facility) after giving effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) and, at the election of the Borrower, any other relevant acquisition or similar Investment, and/or Restricted Payment, Restricted Debt Payment or Disposition that has not been consummated but with respect to which the Borrower has elected to test any applicable condition prior to the date of consummation in accordance with this Section 1.09(a), as if they had occurred at the beginning of the most recently completed Test Period ending prior to the LCT Test Date, the Borrower could have taken such action on the relevant LCT Test Date in compliance with such ratios, representation, warranty, absence of Default or Event of Default or “basket”, such ratio, representation, warranty, absence of Default or Event of Default or “basket” shall be deemed to have been complied with. For the avoidance of doubt, if the Borrower has made an LCT Election and (x) any of the ratios or “baskets” for which compliance was determined or tested as of the LCT Test Date are exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of fluctuations in any such ratio or “basket” (including due to fluctuations of the target of any Limited Condition Transaction) at or prior to the consummation of the relevant Limited Condition Transaction, such “baskets” or ratios and other provisions will be deemed not to have been exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction is permitted hereunder (provided, for the avoidance of doubt, that the Borrower or any other Group Member may rely upon any improvement in any such ratio or “basket” availability) and (y) in connection with any subsequent calculation of any ratio or “basket” availability on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement or Public Offer for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or “basket” availability shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith basis.
(including any incurrence c) For purposes of debt and determining the use of proceeds thereof (but without netting the cash proceeds thereof)) had been consummated. The provisions of this Section 1.09(a) shall, for the avoidance of doubt, apply in respect of the incurrence permissibility of any Incremental Facility. For the avoidance action, change, transaction or event that requires a calculation of doubt, the making of an LCT Election shall not require notice to the Administrative Agent or any other Person. For the further avoidance of doubt, in the absence of an LCT Election, unless specifically stated in this Agreement to be otherwise, all determinations of (x) compliance with any financial ratio or test (including, without limitation, Section 6.107.01, Section 7.02 and Section 5.09(a), any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, any Total Net Leverage Ratio test, any Interest Coverage Ratio test, any Aggregation Test and/or any other the amount of Consolidated EBITDA), such financial ratio or test) and/or any cap expressed as a percentage of Consolidated EBITDA or any other financial metric, (y) the accuracy of any representation and warranties, or any requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (z) any availability test under any “baskets” shall, in each case, shall be made as of the applicable date of the consummation of the Specified Transaction or calculated at the time the applicable such action is takentaken (subject to clause (b) 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 occur be deemed to have occurred solely as a result of a change in any such financial ratio or test, cap, financial metric, or “basket” availability test occurring after the time such time
(b) Notwithstanding anything to the contrary hereinaction is taken, 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 (includingsuch change is made, without limitation, Section 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Fixed Amounts”) substantially concurrently (or as part of a series of related transactions) 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 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that (i) the Fixed Amounts (and any cash proceeds thereof and any concurrent borrowing under a revolving facility, including a Borrowing consisting of RC Facility Loans or any other revolving facility) shall be disregarded, and the incurrence of the Incurrence-Based Amount shall be calculated, first without giving effect to any Fixed Amount, but giving full pro forma effect to the use of proceeds of such Fixed Amount and (ii) the incurrence of the Fixed Amount shall be calculated thereafter.
(c) Notwithstanding anything to the contrary herein, for purposes of the covenants described in Article VI, if any transaction or action would be permitted pursuant to one or more provisions described therein, the Borrower may divide and classify such transaction is consummated or action within any covenant in any manner that complies with the covenants set forth thereinsuch event occurs, and may later divide and reclassify any such transaction or action so long as the transaction or action (as so divided and/or reclassified) would be permitted to be made in reliance on the applicable exception as of the date of such reclassification; provided that if any financial ratio or test governing any applicable Incurrence-Based Amount would be satisfied in any subsequent period following the utilization of any Fixed Amount, such reclassification shall be deemed to have automatically occurred if not elected by the Borrowercase may be.
Appears in 1 contract
Samples: Credit Agreement (IHS Markit Ltd.)
Certain Calculations and Tests. (a) Notwithstanding anything to the contrary herein, but subject to Sections 1.06(b) and (c), all financial ratios and tests (including the Leverage Ratio, the Interest Coverage Ratio and the amount of Consolidated EBITDA) contained in this Agreement or that are calculated with respect to any Loan Document Test Period shall be calculated with respect to such Test Period on a Pro Forma basis.
(b) Notwithstanding anything to the contrarycontrary herein (including in connection with any calculation made on a Pro Forma basis), for purposes to the extent that the terms of this Agreement require (i) determining compliance with any provision in this Agreement or any Loan Document that requires the calculation of any financial ratio or test (including, without limitation, Section 6.107.01, Section 7.02, any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, Total Net Leverage Ratio test, test and/or any Interest Coverage Ratio test, ) and/or any other financial ratio cap expressed as a percentage of Consolidated EBITDA or test), (ii) determining compliance with representations and warranties or the requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (iii) testing any cap measured the making of representations and warranties by each Loan Party as a percentage of Consolidated EBITDA or any other financial metric or by reference to the Available Amount, or any other availability of a “basket” or exception set forth in this Agreement, in each case, the Loan Documents as conditions to the assumption or incurrence of Indebtedness in connection with a Limited Condition Transactionan acquisition or similar investment, the date determination of determinationwhether the relevant condition is satisfied may be made, at the election (any such election, a “Testing Election”) of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), will be deemed to be (1) in the case of any acquisition or other Investment, Disposition, incurrence of Indebtedness or any transaction related to the foregoing, in each case not prohibited hereunder, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) either (x) the execution of the definitive acquisition agreements or other binding contracts or agreements, or the establishment of a commitment, as applicable, agreement with respect to such acquisition, Investment, Disposition, Indebtedness acquisition or related transaction (or, solely in connection with an acquisition to which the United Kingdom City Code on Takeovers and Mergers applies, the date on which a “Rule 2.7 Announcement” of a firm intention to make an offer or similar announcement or determination in another jurisdiction subject to laws similar to the City Code in respect of such target company made in compliance with the City Code or similar laws or practices in other jurisdictions (a “Public Offer”)) investment or (y) the consummation of such acquisition, Investment, Disposition, incurrence of Indebtedness acquisition or related transaction, (2) in the case of any Restricted Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) the declaration of such Restricted Payment or (y) the making of such Restricted Payment and (3) in the case of any Restricted Debt Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Debt Payment or (y) the making of such Restricted Debt Payment (the applicable date pursuant to clause (1), (2) or (3) above, as applicable, the “LCT Test Date”), and if, after such ratios and other provisions are measured on a Pro Forma Basis (disregarding for the purposes of such pro forma calculation any Borrowing under the RC Facility or any other revolving facility) investment after giving effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) and, at the election of the Borrower, any other relevant acquisition or similar Investment, Restricted Payment, Restricted Debt Payment or Disposition that has not been consummated but with respect to which the Borrower has elected to test any applicable condition prior to the date of consummation in accordance with this Section 1.09(a), as if they had occurred at the beginning of the most recently completed Test Period ending prior to the LCT Test Date, the Borrower could have taken such action on the relevant LCT Test Date in compliance with such ratios, representation, warranty, absence of Default or Event of Default or “basket”, such ratio, representation, warranty, absence of Default or Event of Default or “basket” shall be deemed to have been complied with. For the avoidance of doubt, if the Borrower has made an LCT Election and (x) any of the ratios or “baskets” for which compliance was determined or tested as of the LCT Test Date are exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of fluctuations in any such ratio or “basket” (including due to fluctuations of the target of any Limited Condition Transaction) at or prior to the consummation of the relevant Limited Condition Transaction, such “baskets” or ratios and other provisions will be deemed not to have been exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction is permitted hereunder (provided, for the avoidance of doubt, that the Borrower or any other Group Member may rely upon any improvement in any such ratio or “basket” availability) and (y) in connection with any subsequent calculation of any ratio or “basket” availability on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement or Public Offer for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or “basket” availability shall be calculated investment on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith basis.
(including any incurrence c) For purposes of debt and determining the use of proceeds thereof (but without netting the cash proceeds thereof)) had been consummated. The provisions of this Section 1.09(a) shall, for the avoidance of doubt, apply in respect of the incurrence permissibility of any Incremental Facility. For the avoidance action, change, transaction or event that requires a calculation of doubt, the making of an LCT Election shall not require notice to the Administrative Agent or any other Person. For the further avoidance of doubt, in the absence of an LCT Election, unless specifically stated in this Agreement to be otherwise, all determinations of (x) compliance with any financial ratio or test (including, without limitation, Section 6.107.01, Section 7.02 , any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, any Total Net Leverage Ratio test, any Interest Coverage Ratio testtest and/or the amount of Consolidated EBITDA), and/or any other such financial ratio or test) and/or any cap expressed as a percentage of Consolidated EBITDA or any other financial metric, (y) the accuracy of any representation and warranties, or any requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (z) any availability test under any “baskets” shall, in each case, shall be made as of the applicable date of the consummation of the Specified Transaction or calculated at the time the applicable such action is takentaken (subject to clause (b) 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 occur be deemed to have occurred solely as a result of a change in any such financial ratio or test, cap, financial metric, or “basket” availability test occurring after the time such time
(b) Notwithstanding anything to the contrary hereinaction is taken, 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 (includingsuch change is made, without limitation, Section 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Fixed Amounts”) substantially concurrently (or as part of a series of related transactions) 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 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that (i) the Fixed Amounts (and any cash proceeds thereof and any concurrent borrowing under a revolving facility, including a Borrowing consisting of RC Facility Loans or any other revolving facility) shall be disregarded, and the incurrence of the Incurrence-Based Amount shall be calculated, first without giving effect to any Fixed Amount, but giving full pro forma effect to the use of proceeds of such Fixed Amount and (ii) the incurrence of the Fixed Amount shall be calculated thereafter.
(c) Notwithstanding anything to the contrary herein, for purposes of the covenants described in Article VI, if any transaction or action would be permitted pursuant to one or more provisions described therein, the Borrower may divide and classify such transaction is consummated or action within any covenant in any manner that complies with the covenants set forth thereinsuch event occurs, and may later divide and reclassify any such transaction or action so long as the transaction or action (as so divided and/or reclassified) would be permitted to be made in reliance on the applicable exception as of the date of such reclassification; provided that if any financial ratio or test governing any applicable Incurrence-Based Amount would be satisfied in any subsequent period following the utilization of any Fixed Amount, such reclassification shall be deemed to have automatically occurred if not elected by the Borrowercase may be.
Appears in 1 contract
Samples: Credit Agreement (IHS Markit Ltd.)
Certain Calculations and Tests. (a) Notwithstanding anything in to the contrary herein, to the extent that the terms of this Agreement or require (including any Loan Document such requirement that is to the contrary, for purposes of be determined on a Pro Forma Basis) (i) determining compliance with any provision in this Agreement or any Loan Document that requires the calculation of any financial ratio or test (including, without limitation, including Section 6.106.14(a), any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, test or any Total Net Leverage Ratio test, any Interest Coverage Ratio test, ) and/or any other financial ratio cap expressed as a percentage of Consolidated Adjusted EBITDA or test)Consolidated Total Assets, (ii) determining compliance with representations and warranties the making or the requirement regarding accuracy of any representation or warranty or (iii) the absence of a any Default or Event of Default (or any type of Default or Event of Default) or (iii) testing any cap measured as a percentage condition to (A) the consummation of Consolidated EBITDA any transaction in connection with any acquisition or any other financial metric or by reference to the Available Amount, or any other availability of similar Investment that is not conditioned on obtaining third party financing (a “basket” or exception set forth in this AgreementLimited Condition Acquisition”) and/or (B) the making of any Restricted Debt Payment requiring irrevocable advance notice thereof (or, in each case, any assumption or incurrence of any Indebtedness in connection with a Limited Condition Transactiontherewith, including any Incremental Facility), the date determination of determinationwhether the relevant condition is satisfied may be made, at the election of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), will be deemed to be (1) in the case of any acquisition or other Investment, Disposition, incurrence of Indebtedness or any transaction related to the foregoing, in each case not prohibited hereunderLimited Condition Acquisition, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) either (x) the execution of the definitive acquisition agreements or other binding contracts or agreements, or the establishment of a commitment, as applicable, agreement with respect to such acquisition, Investment, Disposition, Indebtedness acquisition or related transaction (or, solely in connection with an acquisition to which the United Kingdom City Code on Takeovers and Mergers applies, the date on which a “Rule 2.7 Announcement” of a firm intention to make an offer or similar announcement or determination in another jurisdiction subject to laws similar to the City Code in respect of such target company made in compliance with the City Code or similar laws or practices in other jurisdictions (a “Public Offer”)) Investment or (y) the consummation of such acquisitionLimited Condition Acquisition, Investmentprovided, Dispositionthat, in any event no Event of Default pursuant to Section 7.01(a), 7.01(g) or 7.01(h) shall be continuing at the time any such transaction is consummated, provided, that, in the case of clause (x) above, during the period between the signing of the definitive agreement with respect to such Limited Condition Acquisition and such time as such Limited Condition Acquisition has been consummated or the definitive documentation with respect to such Limited Condition Acquisition has been terminated or abandoned or expires without consummation of such Limited Condition Acquisition, (I) any such financial ratio or test shall be calculated on a Pro Forma Basis assuming such acquisition or Investment (and other transactions in connection therewith, including any assumption or incurrence of Indebtedness and the use of proceeds thereof) has been consummated and (II) solely with respect to any calculation of compliance with a financial ratio that is a condition to the making of any Restricted Payment or related transactionRestricted Debt Payment, the calculation of such financial ratio shall be tested both on a Pro Forma Basis for such Limited Condition Acquisition and assuming such Limited Condition Acquisition is not consummated and (2) in the case of any Restricted Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) the declaration of such Restricted Payment or (y) the making of such Restricted Payment and (3) in the case of any Restricted Debt Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Debt Payment or (y) the making of such Restricted Debt Payment (the applicable date pursuant to clause (1)Payment, (2) or (3) above, as applicable, the “LCT Test Date”), and ifin each case, after such ratios and other provisions are measured giving effect to the relevant Limited Condition Acquisition or Restricted Debt Payment on a Pro Forma Basis (disregarding for the purposes of such and if, after giving pro forma calculation any Borrowing under the RC Facility or any other revolving facility) after giving effect to the relevant Limited Condition Transaction Acquisition and/or Restricted Debt Payment and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) and, at the election of the Borrower, any other acquisition or similar Investment, Restricted Payment, Restricted Debt Payment or Disposition that has not been consummated but with respect to which the Borrower has elected to test any applicable condition prior to the date of consummation in accordance with this Section 1.09(a), as if they had occurred at the beginning of the most recently completed recent Test Period ending prior to the LCT Test Dateapplicable test date, the Borrower could have taken such action on the relevant LCT Test Date test date in compliance with such ratios, representation, warranty, absence of Default financial ratio or Event of Default or “basket”, such ratio, representation, warranty, absence of Default financial ratio or Event of Default or “basket” basket shall be deemed to have been complied with; provided, further, that any transaction described in clauses (A) and (B) above shall no longer be subject to the limited conditionality provisions of this Section 1.10(a) following the date that is 120 days after (x) in the case of clause (A) above, the date the definitive documentation with regards to such Limited Condition Acquisition is executed and (y) in the case of clause (B) above, the date of delivery of such irrevocable notice. For the avoidance of doubt, if the Borrower has made an LCT Election election pursuant to this Section 1.10(a) and (x) if any of the ratios such ratios, baskets or “baskets” for which compliance was determined or tested as of the LCT Test Date amounts are exceeded (or, with respect subsequent to the Interest Coverage Ratio, not reached) applicable test date as a result of fluctuations in any such ratio or “basket” amount (including due to fluctuations in Consolidated Adjusted EBITDA of the target of any Borrower or the person subject to such Limited Condition Transaction) Acquisition), at or prior to the consummation of the relevant Limited Condition Transactiontransaction or action, such “baskets” ratios, baskets or ratios and other provisions amounts will not be deemed not to have been exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction relevant transaction or action is permitted hereunder to be consummated or taken.
(providedb) For purposes of determining the permissibility of any action, for the avoidance of doubtchange, transaction or event that the Borrower or any other Group Member may rely upon any improvement in any such ratio or “basket” availability) and (y) in connection with any subsequent requires a calculation of any ratio or “basket” availability on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement or Public Offer for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or “basket” availability shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of debt and the use of proceeds thereof (but without netting the cash proceeds thereof)) had been consummated. The provisions of this Section 1.09(a) shall, for the avoidance of doubt, apply in respect of the incurrence of any Incremental Facility. For the avoidance of doubt, the making of an LCT Election shall not require notice to the Administrative Agent or any other Person. For the further avoidance of doubt, in the absence of an LCT Election, unless specifically stated in this Agreement to be otherwise, all determinations of (x) compliance with any financial ratio or test (including, without limitation, including Section 6.106.14(a), any First Lien Net Leverage Ratio testRatio, any Secured Net Leverage Ratio test, any Total Net Leverage Ratio testtest and/or the amount of Consolidated Adjusted EBITDA or Consolidated Total Assets), any Interest Coverage Ratio test, and/or any other such financial ratio or test) and/or any cap expressed as a percentage of Consolidated EBITDA or any other financial metric, (y) the accuracy of any representation and warranties, or any requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (z) any availability test under any “baskets” shall, in each case, shall be made as of the applicable date of the consummation of the Specified Transaction or calculated at the time the applicable such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may bebe (or, in each case, such other time as is applicable thereto pursuant to clause (a) above), and no Default or Event of Default shall occur be deemed to have occurred solely as a result of a subsequent change in any such financial ratio or test, cap, financial metric, or “basket” availability occurring after such time.
(bc) 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 Incremental Facilities) that does not require compliance with a financial ratio or test (including, without limitation, including Section 6.106.14(a), any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio testRatio, any Secured Net Leverage Ratio test and/or any Interest Coverage Total Net Leverage Ratio test) (for the avoidance of doubt, excluding the Revolving Facilities and any other revolving facility) (any such amounts, the “Fixed Amounts”) ), substantially concurrently (or as part of a series of related transactions) 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, including Section 6.106.14(a), any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio testRatio, any Secured Net Leverage Ratio test and/or any Interest Coverage Total Net Leverage Ratio test) (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that (i) the Fixed Amounts (and even if part of the same transaction or, in the case of Indebtedness, the same tranche, as any cash proceeds thereof and any concurrent borrowing under a revolving facility, including a Borrowing consisting of RC Facility Loans or any other revolving facilityIncurrence-Based Amounts) shall be disregarded, and disregarded in the incurrence calculation of the financial ratio or test applicable to the Incurrence-Based Amount shall be calculated, first without giving effect to any Fixed AmountAmounts, but giving full pro forma effect to any increase in the use amount of Consolidated Adjusted EBITDA or Consolidated Total Assets (including Unrestricted Cash) resulting from the reliance on the Fixed Amounts. It is further agreed that in connection with the calculation of any financial ratio applicable to the Incurrence-Based Amounts, such test shall be calculated on a Pro Forma Basis for the incurrence of such Indebtedness (including the application of the proceeds thereof), but without netting the Cash proceeds of such Indebtedness, and in the case of any such Indebtedness constituting revolving Indebtedness or delayed draw Indebtedness, assuming that such Indebtedness is fully drawn. Any amounts incurred or transactions entered into (or consummated) in reliance on a Fixed Amount shall be automatically reclassified as incurred under the Incurrence-Based Amount at such time as the Borrower meets the applicable ratio under the Incurrence-Based Amount at such time on a pro forma basis.
(d) It is understood and agreed that any Indebtedness, Lien, Restricted Payment, Restricted Debt Payment, Investment, Disposition or Affiliate transaction need not be permitted solely by reference to one clause or subclause of Section 6.01, 6.02, 6.03, 6.04, 6.05, 6.06 or 6.08, respectively, but may instead be permitted in part under any combination of clauses or subclauses of such Section, all as classified or, to the extent such alternative classification would have been permitted at the time of the relevant action, reclassified by the Borrower in its sole discretion, and shall constitute a usage of any availability under such clause or subclause only to the extent so classified or reclassified thereto; provided that (i) the Credit Facilities may only be permitted under Section 6.01(a) and secured by Liens permitted pursuant to Section 6.02(a), (ii) Indebtedness incurred under Section 6.01(q), 6.01(w) or 6.01(y), to the extent such Indebtedness is secured by Liens on the Collateral that are junior to the Liens on the Collateral securing the Credit Facilities, may not be reclassified to any other clause of Section 6.01 and such Liens on the Collateral may only be incurred under Section 6.02(s) or 6.02(t), as applicable and (iii) Restricted Payments and Restricted Debt Payments may not be reclassified. In addition, for purposes of determining compliance at any time with Section 6.01, 6.02 or 6.05, if any Indebtedness, Lien or Investment (or a portion thereof), as applicable, that was previously incurred, made or otherwise undertaken as having been incurred, made or otherwise undertaken under any “ratio-based” basket set forth in such Section would, using the figures as of the end of or for the most recently ended Test Period, be permitted under the applicable “ratio-based” basket, then such item (or such portion thereof) shall be automatically reclassified as having been incurred under the applicable “ratio-based” basket; provided that, in the case of Sections 6.01 and 6.02, any such reclassification shall be subject to the limitations set forth in the proviso to the immediately preceding sentence.
(e) For purposes of determining compliance with this Agreement, (i) the outstanding principal amount of any Indebtedness issued at a price that is less than the principal amount thereof shall be equal, as of any date of determination, to the principal amount thereof that would appear on a consolidated balance sheet of the Borrower as of such date prepared in accordance with GAAP and (ii) the incurrence accrual of the Fixed Amount shall be calculated thereafter.
(c) Notwithstanding anything to the contrary herein, for purposes of the covenants described in Article VI, if any transaction or action would be permitted pursuant to one or more provisions described thereininterest, the Borrower may divide and classify such transaction accrual of dividends, the accretion of accreted value, the amortization of original issue discount, the payment of interest or action within a dividend in the form of additional Indebtedness or additional shares of Capital Stock and/or any covenant increase in the amount of Indebtedness outstanding solely as a result of any manner that complies with fluctuation in the covenants set forth therein, and may later divide and reclassify any such transaction or action so long as the transaction or action (as so divided and/or reclassified) would be permitted to be made in reliance on the applicable exception as exchange rate of the date of such reclassification; provided that if any financial ratio or test governing any applicable Incurrence-Based Amount would be satisfied in any subsequent period following the utilization of any Fixed Amount, such reclassification currency shall not be deemed to have automatically occurred if be an incurrence of Indebtedness and, to the extent secured, shall not elected by be deemed to result in an increase of the Borrowerobligations so secured or to be a grant of a Lien securing any such obligations.
Appears in 1 contract
Samples: Credit Agreement (Cano Health, Inc.)
Certain Calculations and Tests. (a) Notwithstanding anything in to the contrary herein, to the extent that the terms of this Agreement or any Loan Document to the contrary, for purposes of require (i) determining compliance with any provision in this Agreement or any Loan Document that requires the calculation of any financial ratio or test (including, without limitation, Section 6.107.10, any First Lien Net Leverage Ratio test, any Senior Secured Net Leverage Ratio test and/or any Leverage Ratio test, Total Net Leverage Ratio test, any Interest Coverage Ratio test, ) and/or any other financial ratio cap expressed as a percentage of Consolidated EBITDA or test), (ii) determining compliance with representations and warranties or the requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (iii) testing any cap measured as a percentage condition to (A) the consummation of Consolidated EBITDA or any other financial metric or by reference to the Available Amount, or any other availability of a “basket” or exception set forth in this Agreement, in each case, transaction in connection with a Limited Condition Transactionany acquisition or similar Investment (including the assumption or incurrence of Indebtedness), (B) the making of any Restricted Payment and/or (C) the making of any Restricted Prepayment, the date determination of determinationwhether the relevant condition is satisfied may be made, at the election of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), will be deemed to be (1) in the case of any acquisition or other similar Investment, Disposition, incurrence of Indebtedness or any transaction related to the foregoing, in each case not prohibited hereunder, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) either (x) the execution of the definitive acquisition agreements or other binding contracts or agreements, or the establishment of a commitment, as applicable, 32 agreement with respect to such acquisition, Investment, Disposition, Indebtedness acquisition or related transaction (or, solely in connection with an acquisition to which the United Kingdom City Code on Takeovers and Mergers applies, the date on which a “Rule 2.7 Announcement” of a firm intention to make an offer or similar announcement or determination in another jurisdiction subject to laws similar to the City Code in respect of such target company made in compliance with the City Code or similar laws or practices in other jurisdictions (a “Public Offer”)) Investment or (y) the consummation of such acquisition, acquisition or Investment, Disposition, incurrence of Indebtedness or related transaction, (2) in the case of any Restricted Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) the declaration of such Restricted Payment (provided such Restricted Payment is made within 60 days after the date of declaration thereof), or (y) the making of such Restricted Payment and (3) in the case of any Restricted Debt PaymentPrepayment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) delivery of irrevocable (which may be conditional) notice of prepayment issued in compliance with the definitive documents applicable to such Junior Indebtedness with respect to such Restricted Debt Payment Prepayment or (y) the making of such Restricted Debt Payment (the applicable date pursuant to clause (1)Prepayment, (2) or (3) abovein each case, as applicable, the “LCT Test Date”), and if, after such ratios and other provisions are measured on a Pro Forma Basis (disregarding for the purposes of such pro forma calculation any Borrowing under the RC Facility or any other revolving facility) after giving effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) and, at the election of the Borrower, any other acquisition or similar Investmentrelevant acquisition, Restricted Payment, Payment and/or Restricted Debt Payment or Disposition that has not been consummated but with respect to which the Borrower has elected to test any applicable condition prior to the date of consummation in accordance with this Section 1.09(a), as if they had occurred at the beginning of the most recently completed Test Period ending prior to the LCT Test Date, the Borrower could have taken such action on the relevant LCT Test Date in compliance with such ratios, representation, warranty, absence of Default or Event of Default or “basket”, such ratio, representation, warranty, absence of Default or Event of Default or “basket” shall be deemed to have been complied with. For the avoidance of doubt, if the Borrower has made an LCT Election and (x) any of the ratios or “baskets” for which compliance was determined or tested as of the LCT Test Date are exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of fluctuations in any such ratio or “basket” (including due to fluctuations of the target of any Limited Condition Transaction) at or prior to the consummation of the relevant Limited Condition Transaction, such “baskets” or ratios and other provisions will be deemed not to have been exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction is permitted hereunder (provided, for the avoidance of doubt, that the Borrower or any other Group Member may rely upon any improvement in any such ratio or “basket” availability) and (y) in connection with any subsequent calculation of any ratio or “basket” availability on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement or Public Offer for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or “basket” availability shall be calculated Prepayment on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith Basis.
(including any incurrence b) For purposes of debt and determining the use of proceeds thereof (but without netting the cash proceeds thereof)) had been consummated. The provisions of this Section 1.09(a) shall, for the avoidance of doubt, apply in respect of the incurrence permissibility of any Incremental Facility. For the avoidance action, change, transaction or event that requires a calculation of doubt, the making of an LCT Election shall not require notice to the Administrative Agent or any other Person. For the further avoidance of doubt, in the absence of an LCT Election, unless specifically stated in this Agreement to be otherwise, all determinations of (x) compliance with any financial ratio or test (including, without limitation, Section 6.107.10, any First Lien Net Leverage Ratio test, any Senior Secured Net Leverage Ratio test, any Total Net Leverage Ratio test, any Interest Coverage Ratio test, test and/or any other financial ratio or test) and/or any cap expressed as a percentage the amount of Consolidated EBITDA or any other Total Consolidated Assets), such financial metric, (y) the accuracy of any representation and warranties, ratio or any requirement regarding the absence of test shall be calculated on a Default or Event of Default (or any type of Default or Event of Default) or (z) any availability test under any “baskets” shall, in each case, be made as of the applicable date of the consummation of the Specified Transaction or pro forma basis at the time the applicable such action is takentaken (subject to clause (a) 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 occur be deemed to have occurred solely as a result of a change in any such financial ratio or test, cap, financial metric, or “basket” availability test occurring after the time such time
(b) Notwithstanding anything to the contrary hereinaction is taken, 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 (includingsuch change is made, without limitation, Section 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Fixed Amounts”) substantially concurrently (or as part of a series of related transactions) 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 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that (i) the Fixed Amounts (and any cash proceeds thereof and any concurrent borrowing under a revolving facility, including a Borrowing consisting of RC Facility Loans or any other revolving facility) shall be disregarded, and the incurrence of the Incurrence-Based Amount shall be calculated, first without giving effect to any Fixed Amount, but giving full pro forma effect to the use of proceeds of such Fixed Amount and (ii) the incurrence of the Fixed Amount shall be calculated thereafter.
(c) Notwithstanding anything to the contrary herein, for purposes of the covenants described in Article VI, if any transaction or action would be permitted pursuant to one or more provisions described therein, the Borrower may divide and classify such transaction is consummated or action within any covenant in any manner that complies with the covenants set forth thereinsuch event occurs, and may later divide and reclassify any such transaction or action so long as the transaction or action (as so divided and/or reclassified) would be permitted to be made in reliance on the applicable exception as of the date of such reclassification; provided that if any financial ratio or test governing any applicable Incurrence-Based Amount would be satisfied in any subsequent period following the utilization of any Fixed Amount, such reclassification shall be deemed to have automatically occurred if not elected by the Borrowercase may be.
Appears in 1 contract
Samples: Credit and Guaranty Agreement
Certain Calculations and Tests. (a) Notwithstanding anything in this Agreement or any Loan Document to the contrary, for purposes of (i) determining compliance with any provision in this Agreement or any Loan Document that requires the calculation of any financial ratio or test (including, without limitation, Section 6.10, any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, Total Net Leverage Ratio testRatio, any Interest Total Net Cash Leverage Ratio, any Contract Asset Balance Coverage Ratio test, and/or or any other financial ratio or testLTV Ratio test (including as required in the definition of “Permitted Acquisition”)), (ii) determining compliance with representations and warranties or the requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) (other than in connection with any borrowing of Revolving Loans or issuance of any Letter of Credit under the Revolving Credit Facility (or Other Revolving Commitments)) or (iii) testing any cap measured expressed as a percentage of Consolidated EBITDA EBITDA, Consolidated Cash EBITDA, Liquidity or any other financial metric or by reference to the Available Amount, or Consolidated Total Assets and any other availability of a “basket” or exception set forth in this AgreementArticle VI, in each case, case in connection with a Specified Transaction or other transaction permitted hereunder, undertaken in connection with the consummation of a Limited Condition Transaction, the date of determinationdetermination of whether any such action is permitted hereunder (but not, for the avoidance of doubt, in connection with any calculation of the Financial Maintenance Covenant for the purposes of Section 6.13 only), at the election of the Borrower (the Borrower’s such election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), will be deemed to be (1) in the case of any acquisition or other Investment, Disposition, incurrence of Indebtedness or any transaction related to the foregoing, in each case not prohibited hereunder, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) either (x) the execution of date the definitive acquisition agreements for such Limited Condition Transaction are entered into or other binding contracts or agreements, or the establishment (y) in respect of a commitment, as applicable, with respect to such acquisition, Investment, Disposition, Indebtedness or related transaction (or, solely sales in connection with an acquisition to which the United Kingdom City Code on Takeovers and Mergers appliesapplies (or similar law or practice in other jurisdictions), the date on which a “Rule 2.7 Announcementannouncement” of a firm intention intends to make an offer or similar announcement or determination in another jurisdiction subject to laws similar to the United Kingdom City Code on Takeovers and Mergers in respect of such a target company made in compliance with the City Code or similar laws or practices in other jurisdictions of a Limited Condition Transaction (a “Public Offer”)) or (y) the consummation of such acquisition, Investment, Disposition, incurrence of Indebtedness or related transaction, (2) in the case of any Restricted Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) the declaration of such Restricted Payment or (y) the making of such Restricted Payment and (3) in the case of any Restricted Debt Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Debt Payment or (y) the making of such Restricted Debt Payment (the applicable date pursuant to clause (1), (2) or (3) above, as applicable, the “LCT Test Date”), and if, after such ratios and other provisions are measured on a Pro Forma Basis (disregarding for the purposes of such giving pro forma calculation any Borrowing under the RC Facility or any other revolving facility) after giving effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) and, at the election of the Borrower, any other acquisition or similar Investment, Restricted Payment, Restricted Debt Payment or Disposition that has not been consummated but with respect to which the Borrower has elected to test any applicable condition prior to the date of consummation in accordance with this Section 1.09(a), as if they had occurred at the beginning of the most recently completed Test Tests Period ending on or prior to the LCT Test Date, the Borrower could have taken such action on the relevant LCT Test Date in compliance with such ratios, representation, warranty, absence of Default or Event of Default or “basket”, such ratio, representation, warranty, absence of Default or Event of Default or “basket” shall be deemed to have been complied with. For the avoidance of doubt, if the Borrower has made an LCT Election and (x) any of the ratios or “baskets” for which compliance was determined or tested as of the LCT Test Date are exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of fluctuations in any such ratio or “basket” (including due to fluctuations of the target of any Limited Condition Transaction) at or prior to the consummation of the relevant Limited Condition Transaction, such “baskets” or ratios and other provisions will be deemed not to have been exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction is permitted hereunder (provided, for the avoidance of doubt, that the Borrower or any other Group Member may rely upon any improvement in any such ratio or “basket” availability) and (y) in connection with any subsequent calculation of any ratio or “basket” availability on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement or Public Offer for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or “basket” availability shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of debt and the use of proceeds thereof (but without netting the cash proceeds thereof)) had been consummated. The provisions of this Section 1.09(a) shall, for the avoidance of doubt, apply in respect of the incurrence of any Incremental Facility. For the avoidance of doubt, the making of an LCT Election shall not require notice to the Administrative Agent or any other Person. For the further avoidance of doubt, in the absence of an LCT Election, unless specifically stated in this Agreement to be otherwise, all determinations of (x) compliance with any financial ratio or test (including, without limitation, Section 6.10, any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, any Total Net Leverage Ratio test, any Interest Coverage Ratio test, and/or any other financial ratio or test) and/or any cap expressed as a percentage of Consolidated EBITDA or any other financial metric, (y) the accuracy of any representation and warranties, or any requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (z) any availability test under any “baskets” shall, in each case, be made as of the applicable date of the consummation of the Specified Transaction or the time the applicable action is taken, change is made, transaction is consummated or event occurs, as the case may be, and no Default or Event of Default shall occur solely as a result of a change in any such financial ratio or test, cap, financial metric, or “basket” availability occurring after such time
(b) 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 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Fixed Amounts”) substantially concurrently (or as part of a series of related transactions) 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 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that (i) the Fixed Amounts (and any cash proceeds thereof and any concurrent borrowing under a revolving facility, including a Borrowing consisting of RC Facility Loans or any other revolving facility) shall be disregarded, and the incurrence of the Incurrence-Based Amount shall be calculated, first without giving effect to any Fixed Amount, but giving full pro forma effect to the use of proceeds of such Fixed Amount and (ii) the incurrence of the Fixed Amount shall be calculated thereafter.
(c) Notwithstanding anything to the contrary herein, for purposes of the covenants described in Article VI, if any transaction or action would be permitted pursuant to one or more provisions described therein, the Borrower may divide and classify such transaction or action within any covenant in any manner that complies with the covenants set forth therein, and may later divide and reclassify any such transaction or action so long as the transaction or action (as so divided and/or reclassified) would be permitted to be made in reliance on the applicable exception as of the date of such reclassification; provided that if any financial ratio or test governing any applicable Incurrence-Based Amount would be satisfied in any subsequent period following the utilization of any Fixed Amount, such reclassification shall be deemed to have automatically occurred if not elected by the Borrower.complied
Appears in 1 contract
Samples: Credit Agreement (GoHealth, Inc.)
Certain Calculations and Tests. (a) Notwithstanding anything in to the contrary herein, to the extent that the terms of this Agreement or any Loan Document to the contrary, for purposes of require (i) determining compliance with any provision in this Agreement or any Loan Document that requires the calculation of any financial ratio or test (including, without limitation, Section 6.106.10(a), any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, test or any Total Net Leverage Ratio test, any Interest Coverage Ratio test, ) and/or any other financial ratio cap expressed as a percentage of Consolidated Adjusted EBITDA or test)Consolidated Total Assets, (ii) determining compliance with representations and warranties or the requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or ), (iii) testing the making or accuracy of any representation and/or warranty or (iv) compliance with availability under any basket or cap measured (including any basket or cap expressed as a percentage of Consolidated Adjusted EBITDA or any other financial metric or by reference to the Available Amount, or any other availability of a “basket” or exception set forth in this AgreementConsolidated Total Assets), in each case, a condition to (A) the consummation of any transaction in connection with a Limited Condition Transactionany acquisition or similar Investment (including the assumption or incurrence of Indebtedness), (B) the making of any Restricted Payment and/or (C) the making of any Restricted Debt Payment, the date determination of determinationwhether the relevant condition is satisfied may be made, at the election of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), will be deemed to be (1) in the case of any acquisition or other Investmentsimilar Investment (including with respect to any Indebtedness contemplated, Disposition, incurrence of Indebtedness assumed or any transaction related to the foregoing, 7070 WXXX:\98093729\19\40590.0004 incurred in each case not prohibited hereunderconnection therewith), at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) either (x) the execution of the definitive acquisition agreements or other binding contracts or agreements, or the establishment of a commitment, as applicable, agreement with respect to such acquisition, acquisition or Investment, Disposition, Indebtedness or related transaction (or, solely y) in connection with an acquisition to which the United Kingdom City Code on Takeovers or Takeover and Mergers (or any comparable Requirement of Law) applies, the date on which a “Rule 2.7 Announcementannouncement” of a firm intention to make an offer or similar announcement or determination in another jurisdiction subject to laws similar to the City Code in respect of such the target company made in compliance with the City Code of an acquisition (or similar laws or practices in other jurisdictions (a “Public Offer”)equivalent notice under comparable Requirements of Law) or (yz) the consummation of such acquisition, Investment, Disposition, incurrence of Indebtedness or related transaction, (2) in the case of any Restricted Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) the declaration of such Restricted Payment or (y) the making of such Restricted Payment and (3) in the case of any Restricted Debt Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Debt Payment or (y) the making of such Restricted Debt Payment (the applicable date pursuant to clause (1), (2) or (3) above, as applicable, the “LCT Test Date”), and if, after such ratios and other provisions are measured on a Pro Forma Basis (disregarding for the purposes of such pro forma calculation any Borrowing under the RC Facility or any other revolving facility) after giving effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) and, at the election of the Borrower, any other acquisition or similar Investment, Restricted Payment, Restricted Debt Payment or Disposition that has not been consummated but with respect to which the Borrower has elected to test any applicable condition prior to the date of consummation in accordance with this Section 1.09(a), as if they had occurred at the beginning of the most recently completed Test Period ending prior to the LCT Test Date, the Borrower could have taken such action on the relevant LCT Test Date in compliance with such ratios, representation, warranty, absence of Default or Event of Default or “basket”, such ratio, representation, warranty, absence of Default or Event of Default or “basket” shall be deemed to have been complied with. For the avoidance of doubt, if the Borrower has made an LCT Election and (x) any of the ratios or “baskets” for which compliance was determined or tested as of the LCT Test Date are exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of fluctuations in any such ratio or “basket” (including due to fluctuations of the target of any Limited Condition Transaction) at or prior to the consummation of the relevant Limited Condition Transaction, such “baskets” or ratios and other provisions will be deemed not to have been exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction is permitted hereunder (provided, for the avoidance of doubt, that the Borrower or any other Group Member may rely upon any improvement in any such ratio or “basket” availability) and (y) in connection with any subsequent calculation of any ratio or “basket” availability on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement or Public Offer for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or “basket” availability shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of debt and the use of proceeds thereof (but without netting the cash proceeds thereof)) had been consummated. The provisions of this Section 1.09(a) shall, for the avoidance of doubt, apply in respect of the incurrence of any Incremental Facility. For the avoidance of doubt, the making of an LCT Election shall not require notice to the Administrative Agent or any other Person. For the further avoidance of doubt, in the absence of an LCT Election, unless specifically stated in this Agreement to be otherwise, all determinations of (x) compliance with any financial ratio or test (including, without limitation, Section 6.10, any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, any Total Net Leverage Ratio test, any Interest Coverage Ratio test, and/or any other financial ratio or test) and/or any cap expressed as a percentage of Consolidated EBITDA or any other financial metric, (y) the accuracy of any representation and warranties, or any requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (z) any availability test under any “baskets” shall, in each case, be made as of the applicable date of the consummation of the Specified Transaction or the time the applicable action is taken, change is made, transaction is consummated or event occurs, as the case may be, and no Default or Event of Default shall occur solely as a result of a change in any such financial ratio or test, cap, financial metric, or “basket” availability occurring after such time
(b) 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 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Fixed Amounts”) substantially concurrently (or as part of a series of related transactions) 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 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that (i) the Fixed Amounts (and any cash proceeds thereof and any concurrent borrowing under a revolving facility, including a Borrowing consisting of RC Facility Loans or any other revolving facility) shall be disregarded, and the incurrence of the Incurrence-Based Amount shall be calculated, first without giving effect to any Fixed Amount, but giving full pro forma effect to the use of proceeds of such Fixed Amount and (ii) the incurrence of the Fixed Amount shall be calculated thereafter.
(c) Notwithstanding anything to the contrary herein, for purposes of the covenants described in Article VI, if any transaction or action would be permitted pursuant to one or more provisions described therein, the Borrower may divide and classify such transaction or action within any covenant in any manner that complies with the covenants set forth therein, and may later divide and reclassify any such transaction or action so long as the transaction or action (as so divided and/or reclassified) would be permitted to be made in reliance on the applicable exception as of the date of such reclassification; provided that if any financial ratio or test governing any applicable Incurrence-Based Amount would be satisfied in any subsequent period following the utilization of any Fixed Amount, such reclassification shall be deemed to have automatically occurred if not elected by the Borrower.,
Appears in 1 contract
Certain Calculations and Tests. (a) Notwithstanding anything in this Agreement or any Loan Document to the contrary, for purposes of (i) determining compliance with any provision in this Agreement or any Loan Document that requires the calculation of any financial ratio or test (including, without limitation, Section 6.10, any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, Total Net Leverage Ratio testRatio, any Interest Total Net Cash Leverage Ratio, or any Contract Asset Balance Coverage Ratio test, and/or or any other financial ratio or testLTV Ratio test (including as required in the definition of “Permitted Acquisition”)), (ii) determining compliance with representations and warranties or the requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) (other than in connection with any borrowing of Revolving Loans or issuance of any Letter of Credit under the Revolving Credit Facility (or Other Revolving Commitments)) or (iii) testing any cap measured expressed as a percentage of Consolidated EBITDA EBITDA, Consolidated Cash EBITDA, Liquidity or any other financial metric or by reference to the Available Amount, or Consolidated Total Assets and any other availability of a “basket” or exception set forth in this AgreementArticle 6VI, in each case, case in connection with a Specified Transaction or other transaction permitted hereunder, undertaken in connection with the consummation of a Limited Condition Transaction, the date of determinationdetermination of whether any such action is permitted hereunder (but not, for the avoidance of doubt, in connection with any calculation of the Financial Maintenance Covenant for the purposes of Section 6.13 only), at the election of the Borrower (the Borrower’s such election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), will be deemed to be (1) in the case of any acquisition or other Investment, Disposition, incurrence of Indebtedness or any transaction related to the foregoing, in each case not prohibited hereunder, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) either (x) the execution of date the definitive acquisition agreements for such Limited Condition Transaction are entered into or other binding contracts or agreements, or the establishment (y) in respect of a commitment, as applicable, with respect to such acquisition, Investment, Disposition, Indebtedness or related transaction (or, solely sales in connection with an acquisition to which the United Kingdom City Code on Takeovers and Mergers appliesapplies (or similar law or practice in other jurisdictions), the date on which a “Rule 2.7 Announcementannouncement” of a firm intention intends to make an offer or similar announcement or determination in another jurisdiction subject to laws similar to the United Kingdom City Code on Takeovers and Mergers in respect of such a target company made in compliance with the City Code or similar laws or practices in other jurisdictions of a Limited Condition Transaction (a “Public Offer”)) or (y) the consummation of such acquisition, Investment, Disposition, incurrence of Indebtedness or related transaction, (2) in the case of any Restricted Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) the declaration of such Restricted Payment or (y) the making of such Restricted Payment and (3) in the case of any Restricted Debt Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Debt Payment or (y) the making of such Restricted Debt Payment (the applicable date pursuant to clause (1), (2) or (3) above, as applicable, the “LCT Test Date”), and if, after such ratios and other provisions are measured on a Pro Forma Basis (disregarding for the purposes of such giving pro forma calculation any Borrowing under the RC Facility or any other revolving facility) after giving effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) and, at the election of the Borrower, any other acquisition or similar Investment, Restricted Payment, Restricted Debt Payment or Disposition that has not been consummated but with respect to which the Borrower has elected to test any applicable condition prior to the date of consummation in accordance with this Section 1.09(a), as if they had occurred at the beginning of the most recently completed Test Tests Period ending on or prior to the LCT Test Date, the Borrower could have taken such action on the relevant LCT Test Date in compliance with such ratios, representation, warranty, absence of Default or Event of Default or “basket,”, such ratio, representation, warranty, absence of Default or Event of Default or “basket” shall be deemed to have been complied with. For the avoidance of doubt, if the Borrower has made an LCT Election and (x) any of the ratios or “baskets” for which compliance was determined or tested as of the LCT Test Date are exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of fluctuations in any such ratio or “basket” (including due to fluctuations of the target of any Limited Condition Transaction) at or prior to the consummation of the relevant Limited Condition Transaction, such “baskets” or ratios and other provisions will not be deemed not to have been exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction is permitted hereunder (provided, for the avoidance of doubt, that the Borrower or any other Group Member may rely upon any improvement in any such ratio or “basket” availability) and (y) in connection with any subsequent calculation of any ratio or “basket” availability on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement or Public Offer for such Limited Condition Transaction is terminated or expires without 104 #97964454v4 #97964454v11 consummation of such Limited Condition Transaction, any such ratio or “basket” availability shall be calculated (x) on a Pro Forma Basis pro forma basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of debt Indebtedness and the use of proceeds thereof (but without netting the cash proceeds thereof)) had been consummated or (y) solely in respect of any Restricted Payment or any Restricted Debt Payment, on a standalone basis without assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof (but without netting the cash proceeds thereof)) had been consummated. The provisions of this Section 1.09(a) shall, for the avoidance of doubt, apply in respect of the incurrence of any Incremental Facility. For the avoidance of doubt, the making of an LCT Election shall not require notice to the Administrative Agent or any other Person. For the further avoidance of doubt, in the absence of an LCT Election, unless specifically stated in this Agreement to be otherwise, all determinations of (x) compliance with any financial ratio or test (including, without limitation, Section 6.10, any First Lien Total Net Leverage Ratio test, any Secured Net Leverage Ratio testRatio, any Total Net Cash Leverage Ratio testRatio, any Interest or Contract Asset Balance Coverage Ratio testor any LTV Ratio test (but not, and/or for the avoidance of doubt, in connection with any other financial ratio or testcalculation of the Financial Maintenance Covenant for the purposes of Section 6.13 only)) and/or any cap expressed as a percentage of Consolidated EBITDA EBITDA, Consolidated Cash EBITDA, Liquidity or any other financial metricConsolidated Total Assets, (y) the accuracy of any representation and warranties, or any requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (z) any availability test under any “baskets” shall, in each case, shall be made as of the applicable date of the consummation of the Specified Transaction or the time the applicable action is taken, change is made, other transaction is consummated or event occurs, as the case may be, and no Default or Event of Default shall occur solely as a result of a change in any such financial ratio or test, cap, financial metric, or “basket” availability occurring after such time
(b) 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 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Fixed Amounts”) substantially concurrently (or as part of a series of related transactions) 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 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that (i) the Fixed Amounts (and any cash proceeds thereof and any concurrent borrowing under a revolving facility, including a Borrowing consisting of RC Facility Loans or any other revolving facility) shall be disregarded, and the incurrence of the Incurrence-Based Amount shall be calculated, first without giving effect to any Fixed Amount, but giving full pro forma effect to the use of proceeds of such Fixed Amount and (ii) the incurrence of the Fixed Amount shall be calculated thereafterhereunder.
(c) Notwithstanding anything to the contrary herein, for purposes of the covenants described in Article VI, if any transaction or action would be permitted pursuant to one or more provisions described therein, the Borrower may divide and classify such transaction or action within any covenant in any manner that complies with the covenants set forth therein, and may later divide and reclassify any such transaction or action so long as the transaction or action (as so divided and/or reclassified) would be permitted to be made in reliance on the applicable exception as of the date of such reclassification; provided that if any financial ratio or test governing any applicable Incurrence-Based Amount would be satisfied in any subsequent period following the utilization of any Fixed Amount, such reclassification shall be deemed to have automatically occurred if not elected by the Borrower.
Appears in 1 contract
Samples: Credit Agreement (GoHealth, Inc.)
Certain Calculations and Tests. (a) Notwithstanding anything in to the contrary herein, to the extent that the terms of this Agreement or any Loan Document to the contrary, for purposes of require (i) determining compliance with any provision in this Agreement or any Loan Document that requires the calculation of any financial ratio or test (including, without limitation, Section 6.10, any First Lien Net Senior Secured Leverage Ratio test, any Secured Net Leverage Ratio test, Total Net Leverage Ratio test, any Interest Coverage Total Leverage Ratio test, any Fixed Charge Coverage Ratio test or any Payment Conditions test) and/or the amount of Consolidated Adjusted EBITDA or any other financial ratio cap expressed as a percentage of Consolidated Total Assets or test), (ii) determining compliance with representations and warranties or the requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (iii) testing any cap measured as a percentage condition to (A) the consummation of Consolidated EBITDA or any other financial metric or by reference to the Available Amount, or any other availability of a “basket” or exception set forth in this Agreement, in each case, transaction in connection with any acquisition or similar Investment, (B) the making of any Restricted Payment, and/or (C) the making of any Restricted Debt Payment (including in each case of clauses (A), (B) and (C), the related assumption or incurrence of Indebtedness) (such action pursuant to clauses (A), (B) or (C), a “Limited Condition Transaction”), the date determination of determinationwhether the relevant condition is satisfied may be made, at the election of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an a “LCT Election”), will be deemed to be (1) in the case of any acquisition or other Investment, Disposition, similar Investment or related incurrence or assumption of Indebtedness or any transaction related to the foregoing, in each case not prohibited hereunderIndebtedness, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) ), either (x) the execution of the definitive acquisition agreements or other binding contracts or agreements, or the establishment of a commitment, as applicable, agreement with respect to such acquisition, Investment, Disposition, acquisition or Investment or incurrence or assumption of Indebtedness or related transaction (or, solely in connection with an acquisition to which the United Kingdom City Code on Takeovers and Mergers applies, the date on which a “Rule 2.7 Announcement” of a firm intention to make an offer or similar announcement or determination in another jurisdiction subject to laws similar to the City Code in respect of such target company made in compliance with the City Code or similar laws or practices in other jurisdictions (a “Public Offer”)) or (y) the consummation of such acquisition, acquisition or Investment, Disposition, or incurrence or assumption of Indebtedness or related transactionIndebtedness, (2) in the case of any Restricted Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) the declaration of such Restricted Payment or (y) the making of such Restricted Payment and (3) in the case of any Restricted Debt Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Debt Payment or (y) the making of such Restricted Debt Payment (the applicable date pursuant to clause (1), (2) or (3) above), as applicable, the “LCT Test Date”), and ifin each case, after such ratios and other provisions are measured on a Pro Forma Basis (disregarding for the purposes of such pro forma calculation any Borrowing under the RC Facility or any other revolving facility) after giving effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) andrelevant acquisition, at the election of the Borrower, any other acquisition or similar InvestmentIndebtedness, Restricted Payment, Payment and/or Restricted Debt Payment or Disposition that has not been consummated but with respect to which the Borrower has elected to test any applicable condition prior to the date of consummation in accordance with this Section 1.09(a), as if they had occurred at the beginning of the most recently completed Test Period ending prior to the LCT Test Date, the Borrower could have taken such action on the relevant LCT Test Date in compliance with such ratios, representation, warranty, absence of Default or Event of Default or “basket”, such ratio, representation, warranty, absence of Default or Event of Default or “basket” shall be deemed to have been complied witha Pro Forma Basis. For the avoidance of doubt, if If the Borrower has made an a LCT Election and (x) any of the ratios or “baskets” for which compliance was determined or tested as of the LCT Test Date are exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of fluctuations in any such ratio or “basket” (including due to fluctuations of the target of any Limited Condition Transaction) at or prior to the consummation of the relevant Limited Condition Transaction, such “baskets” or ratios and other provisions will be deemed not to have been exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction is permitted hereunder (provided, for the avoidance of doubt, that the Borrower or any other Group Member may rely upon any improvement in any such ratio or “basket” availability) and (y) then in connection with any subsequent calculation determination of compliance with any financial ratio or “basket” availability test and/or the amount of Consolidated Adjusted EBITDA or Consolidated Total Assets with respect to |NY\7652510.20US-DOCS\114316435.10|| the incurrence of Indebtedness or Liens, or the making of Restricted Payments or Restricted Debt Payments on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement or Public Offer for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, compliance with any such financial ratio or “basket” availability test and/or amount of Consolidated Adjusted EBITDA or Consolidated Total Assets shall be calculated tested by calculating the availability under such financial ratio or test and/or the amount of Consolidated Adjusted EBITDA or Consolidated Total Assets, as applicable, on a Pro Forma Basis pro forma basis assuming such Limited Condition Transaction and any other transactions in connection therewith have been consummated (including any incurrence of debt Indebtedness and the use of proceeds thereof (but without netting the cash proceeds thereof)) had been consummated. The provisions of this Section 1.09(a) shall, for the avoidance of doubt, apply in respect of the incurrence of any Incremental Facility. For the avoidance of doubt, the making of an LCT Election shall not require notice to the Administrative Agent or any other Person. For the further avoidance of doubt, in the absence of an LCT Election, unless specifically stated in this Agreement to be otherwise, all determinations of (x) compliance with any financial ratio or test (including, without limitation, Section 6.10, any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, any Total Net Leverage Ratio test, any Interest Coverage Ratio test, and/or any other financial ratio or test) and/or any cap expressed as a percentage of Consolidated EBITDA or any other financial metric, (y) the accuracy of any representation and warranties, or any requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (z) any availability test under any “baskets” shall, in each case, be made as of the applicable date of the consummation of the Specified Transaction or the time the applicable action is taken, change is made, transaction is consummated or event occurs, as the case may be, and no Default or Event of Default shall occur solely as a result of a change in any such financial ratio or test, cap, financial metric, or “basket” availability occurring after such time
(b) 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 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Fixed Amounts”) substantially concurrently (or as part of a series of related transactions) 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 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that (i) the Fixed Amounts (and any cash proceeds thereof and any concurrent borrowing under a revolving facility, including a Borrowing consisting of RC Facility Loans or any other revolving facility) shall be disregarded, and the incurrence of the Incurrence-Based Amount shall be calculated, first without giving effect to any Fixed Amount, but giving full pro forma effect to the use of proceeds of such Fixed Amount and (ii) the incurrence of the Fixed Amount shall be calculated thereafter.
(c) Notwithstanding anything to the contrary herein, for purposes of the covenants described in Article VI, if any transaction or action would be permitted pursuant to one or more provisions described therein, the Borrower may divide and classify such transaction or action within any covenant in any manner that complies with the covenants set forth therein, and may later divide and reclassify any such transaction or action so long as the transaction or action (as so divided and/or reclassified) would be permitted to be made in reliance on the applicable exception as of the date of such reclassification; provided that if any financial ratio or test governing any applicable Incurrence-Based Amount would be satisfied in any subsequent period following the utilization of any Fixed Amount, such reclassification shall be deemed to have automatically occurred if not elected by the Borrower.
Appears in 1 contract
Certain Calculations and Tests. (a) Notwithstanding anything to the contrary herein, but subject to this Section 1.10, all financial ratios and tests (including the Total Debt to Tangible Net Worth Ratio, the Senior Debt to Tangible Net Worth Ratio and the amount of Consolidated Total Assets and the component definitions of any of the foregoing) contained in this Agreement shall be calculated with respect to any applicable Test Period to give effect to all Subject Transactions on a Pro Forma Basis that occurred on or any Loan Document after the first day of such Test Period and on or prior to the contrary, for purposes date of (i) determining compliance with any provision in this Agreement or any Loan Document that requires the required calculation of any financial ratio or test (which may be after the end of such Test Period); provided, that solely for purposes of calculating quarterly compliance with Section 6.13(a), no Subject Transaction occurring after the last day of the Test Period shall be taken into account or given pro forma effect.
(b) With respect to any Limited Condition Transaction, notwithstanding anything to the contrary in this Agreement:
(i) To the extent that the terms of this Agreement require (A) the making or accuracy of any representations and warranties (other than in connection with any acquisition or similar Investment, the Specified Representations as related thereto), (B) compliance with any Financial Incurrence Test (including, without limitation, Section 6.106.13(a) hereof, any First Lien Total Debt to Tangible Net Leverage Worth Ratio test or any Senior Debt to Tangible Net Worth Ratio test, any Secured Net Leverage Ratio test, Total Net Leverage Ratio test, any Interest Coverage Ratio test), and/or any other financial ratio or test)Basket expressed as a percentage of Consolidated Total Assets, (iiC) determining compliance with representations and warranties or the requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default), (D) compliance with, or determination of availability under, any Basket (including any categories (or subcategories) or items (iiior sub-items) testing under Section 2.22, 6.01, 6.02, 6.04, 6.06, 6.07 or 6.09 or any cap applicable defined terms used in any of the foregoing, including any measured as a percentage of Consolidated EBITDA Total Assets) or (E) compliance with, or satisfaction of, any other financial metric condition or by reference to the Available Amount, or any other availability of a “basket” or exception set forth in this Agreementrequirement, in each case, in connection with a any Limited Condition TransactionTransactions (or any actions and transactions in connection with any Limited Condition Transaction (including the incurrence of any Indebtedness (and related Liens) pursuant to Sections 2.22 and 6.01)) and any actions or transactions related thereto, determination of whether the date of determinationrelevant conditions or requirement described in subclauses (A) through (E) above (the “LCT Requirements”) are satisfied or complied with may be made, at the election of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), will be deemed to be (1) in the case of any acquisition or other Investment, Disposition, incurrence of Indebtedness or any transaction related to the foregoing, in each case not prohibited hereunder, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) either date (x) the execution of the definitive acquisition agreements or other binding contracts or agreements, or the establishment of a commitment, as applicable, with respect to such acquisition, Investment, Disposition, Indebtedness or related transaction (or, solely in connection with an acquisition to which the United Kingdom City Code on Takeovers and Mergers applies, the date on which a “Rule 2.7 Announcement” of a firm intention to make an offer or similar announcement or determination in another jurisdiction subject to laws similar to the City Code in respect of such target company made in compliance with the City Code or similar laws or practices in other jurisdictions (a “Public Offer”)) or (y) the consummation of such acquisition, Investment, Disposition, incurrence of Indebtedness or related transaction, (2) in the case of any Restricted Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) the declaration of such Restricted Payment or (y) the making of such Restricted Payment and (3) in the case of any Restricted Debt Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Debt Payment or (y) the making of such Restricted Debt Payment (the applicable date pursuant to clause (1), (2) or (3) above, as applicable, the “LCT Test Date”) the definitive agreements for such Limited Condition Transaction is entered into (or, if applicable, the date of delivery of irrevocable notice (which may be conditional or subject to deferral) with respect to Indebtedness or declaration of a Restricted Payment).
(ii) If, and if, after such ratios and other provisions are measured on a Pro Forma Basis (disregarding for the purposes of such pro forma calculation any Borrowing under the RC Facility or any other revolving facility) after giving effect to the Limited Condition Transaction (any related actions and transactions, including the other transactions to be entered into in connection therewith (including any incurrence of any Indebtedness (and related Liens) pursuant to Sections 2.22 and 6.01 and the use of proceeds thereofthereof and related Subject Transactions) and, at the election of the Borrower, and any other acquisition or similar Investment, Restricted Payment, Restricted Debt Payment or Disposition that has not been consummated but with respect to which the Borrower has elected to test any applicable condition prior to the date of consummation in accordance with this Section 1.09(a), as if they had occurred at the beginning of the most recently completed Test Period ending prior to the LCT Test Daterelated pro forma adjustments on a Pro Forma Basis, the Borrower could or any of its Restricted Subsidiaries would have taken been permitted to take such action actions or consummate such Limited Condition Transaction (and all related actions and transactions) on the relevant LCT Test Date in compliance with such ratiosany applicable LCT Requirements, representation, warranty, absence of Default or Event of Default or “basket”, such ratio, representation, warranty, absence of Default or Event of Default or “basket” all applicable LCT Requirements shall be deemed to have been complied with. For the avoidance of doubt, if with (or satisfied) for all purposes and the Borrower has made an and its Restricted Subsidiaries may consummate such Limited Condition Transaction and take or consummate all related actions and transactions at any time subsequent to the LCT Election and (x) Test Date regardless of whether any of the ratios or “baskets” for which compliance was LCT Requirement determined or tested as of the LCT Test Date are exceeded would at any time subsequent to such LCT Test Date fail to be complied with or satisfied for any reason whatsoever (or, with respect including due to the Interest Coverage Ratiooccurrence or existence of any event, not reached) fact or circumstance), and no Default or Event of Default shall be deemed to have occurred as a result of fluctuations in any such ratio or “basket” (including due to fluctuations of the target of any Limited Condition Transaction) at or prior to the consummation of the relevant such Limited Condition TransactionTransaction and taking or consummation of all related actions and transactions.
(iii) If internal financial statements of the Borrower of the type described in Section 5.01(a) or Section 5.01(b), as applicable, are available (as determined in good faith by the Borrower) or such financial statements have been delivered pursuant to Section 5.01(a) or Section 5.01(b), as applicable, (a) the Borrower may elect, in its sole discretion, to re-determine compliance with, or satisfaction of, all applicable LCT Requirements on the basis of such financial statements, in which case, such “baskets” or ratios and other provisions will date of re-determination shall thereafter be deemed not to have been exceeded (or, with respect to be the Interest Coverage Ratio, not reached) as a result of such fluctuations solely applicable LCT Test Date for purposes of determining whether the Limited Condition Transaction is permitted hereunder (providedsuch ratios, for the avoidance of doubttests or baskets, that the Borrower or any other Group Member may rely upon any improvement in any such ratio or “basket” availability) and (yb) except as contemplated in the foregoing clause (a), compliance with such ratios, tests or baskets (and any related requirements and conditions) shall not be determined or tested at any time after the applicable LCT Test Date.
(iv) In calculating the availability under any ratio, test, basket, cap or threshold in connection with any subsequent calculation of action or transaction unrelated to such Limited Condition Transaction (including any ratio or “basket” availability on or other Limited Condition Transaction and related actions and transactions) following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement agreement, the notice redemption, purchase or Public Offer repayment or the declaration for such Limited Condition Transaction is terminated terminated, expires, passes or expires is revoked, as applicable, without consummation of such Limited Condition Transaction, any such ratio ratio, test, basket, cap or “basket” availability threshold shall be calculated on a Pro Forma Basis assuming determined or tested giving pro forma effect to such Limited Condition Transaction (and other transactions in connection therewith related actions and transactions).
(including any incurrence c) For purposes of debt and determining the use of proceeds thereof (but without netting the cash proceeds thereof)) had been consummated. The provisions of this Section 1.09(a) shall, for the avoidance of doubt, apply in respect of the incurrence permissibility of any Incremental Facility. For the avoidance action, change, transaction or event that requires a calculation of doubt, the making of an LCT Election shall not require notice to the Administrative Agent or any other Person. For the further avoidance of doubt, in the absence of an LCT Election, unless specifically stated in this Agreement to be otherwise, all determinations of (x) compliance with any financial ratio or test (including, without limitation, Section 6.106.13(a) hereof, any First Lien Total Debt to Tangible Net Leverage Worth Ratio test, any Secured Senior Debt to Tangible Net Leverage Worth Ratio testtest and/or the amount of Consolidated Total Assets), any Total Net Leverage Ratio test, any Interest Coverage Ratio test, and/or any other such financial ratio or test) and/or any cap expressed as a percentage of Consolidated EBITDA or any other financial metric, (y) the accuracy of any representation and warranties, or any requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (z) any availability test under any “baskets” shall, in each case, shall be made as of the applicable date of the consummation of the Specified Transaction or calculated at the time the applicable such action is takentaken (subject to clause (b) 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 occur or be deemed to have occurred solely as a result of a change in any such financial ratio or test, cap, financial metric, or “basket” availability test occurring after such timecalculation.
(bd) Notwithstanding anything in this Agreement or any Loan Document to the contrary hereincontrary, in calculating any Non-Fixed Basket any (x) Indebtedness incurred to fund original issue discount and/or upfront fees with respect to Indebtedness incurred under an applicable Non-Fixed Basket or in a concurrent transaction, a single transaction or a series of related transactions with the amount incurred, or transaction entered into or consummated, under an applicable Non-Fixed Basket and (y) any amounts incurred incurred, or transactions entered into (or consummated) , in reliance on a provision Fixed Basket (including the Free and Clear Incremental Amount) in a concurrent transaction, a single transaction or a series of this Agreement related transactions with the amount incurred, or transaction entered into or consummated, under an applicable Non-Fixed Basket, in each case of the foregoing clauses (x) and (y), shall be disregarded in the calculation of such Non-Fixed Basket. For all purposes hereunder, (i) “Fixed Basket” shall mean any Basket that does not require is subject to a fixed-dollar limit (including Baskets based on a percentage of Consolidated Total Assets), (ii) “Non-Fixed Basket” shall mean any Basket that is subject to compliance with a financial ratio or test (including, without limitation, Section 6.10the Financial Covenants, any First Lien the Senior Debt to Tangible Net Leverage Worth Ratio test, any and the Total Debt to Tangible Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Ratio testWorth Ratio) (any such amountsratio or test, a “Financial Incurrence Test”) and (iii) “Basket” means any amount, threshold, exception or value (including by reference to the Senior Debt to Tangible Net Worth Ratio, the “Fixed Amounts”Total Debt to Tangible Net Worth Ratio or Consolidated Total Assets) substantially concurrently permitted or prescribed with respect to any Indebtedness (including any Incremental Facility, Incremental Term Loan or as part of a series of related transactions) with Incremental Equivalent Debt), Lien, Restricted Payment, Restricted Debt Payment, Burdensome Agreement, Investment, Disposition, Affiliate transaction or any amounts incurred transaction, action, judgment or transactions entered into (or consummated) amount under any provision in reliance on a provision of this Agreement that requires compliance with a financial ratio or test (including, without limitation, Section 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that (i) the Fixed Amounts (and any cash proceeds thereof and any concurrent borrowing under a revolving facility, including a Borrowing consisting of RC Facility Loans or any other revolving facility) shall be disregarded, and the incurrence of the Incurrence-Based Amount shall be calculated, first without giving effect to any Fixed Amount, but giving full pro forma effect to the use of proceeds of such Fixed Amount and (ii) the incurrence of the Fixed Amount shall be calculated thereafterLoan Document.
(c) Notwithstanding anything to the contrary herein, for purposes of the covenants described in Article VI, if any transaction or action would be permitted pursuant to one or more provisions described therein, the Borrower may divide and classify such transaction or action within any covenant in any manner that complies with the covenants set forth therein, and may later divide and reclassify any such transaction or action so long as the transaction or action (as so divided and/or reclassified) would be permitted to be made in reliance on the applicable exception as of the date of such reclassification; provided that if any financial ratio or test governing any applicable Incurrence-Based Amount would be satisfied in any subsequent period following the utilization of any Fixed Amount, such reclassification shall be deemed to have automatically occurred if not elected by the Borrower.
Appears in 1 contract
Samples: Term Loan Credit Agreement
Certain Calculations and Tests. (a) Notwithstanding anything in to the contrary herein, to the extent that the terms of this Agreement or any Loan Document to the contrary, for purposes of require (i) determining compliance with any provision in this Agreement or any Loan Document that requires the calculation of any financial ratio or test (including, without limitation, Section 6.10, any First Lien Net Senior Secured Leverage Ratio test, any Secured Net Leverage Ratio test, Total Net Leverage Ratio test, any Interest Coverage Total Leverage Ratio test, any Fixed Charge Coverage Ratio test or any Payment Conditions test) and/or the amount of Consolidated Adjusted EBITDA or any other financial ratio cap expressed as a percentage of Consolidated Total Assets or test), (ii) determining compliance with representations and warranties or the requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (iii) testing any cap measured as a percentage condition to (A) the consummation of Consolidated EBITDA or any other financial metric or by reference to the Available Amount, or any other availability of a “basket” or exception set forth in this Agreement, in each case, transaction in connection with any acquisition or similar Investment, (B) the making of any Restricted Payment, and/or (C) the making of any Restricted Debt Payment (including in each case of clauses (A), (B) and (C), the related assumption or incurrence of Indebtedness) (such action pursuant to clauses (A), (B) or (C), a “Limited Condition Transaction”), the date determination of determinationwhether the relevant condition is satisfied may be made, at the election of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an a “LCT Election”), will be deemed to be (1) in the case of any acquisition or other Investment, Disposition, similar Investment or related incurrence or assumption of Indebtedness or any transaction related to the foregoing, in each case not prohibited hereunderIndebtedness, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) ), either (x) the execution of the definitive acquisition agreements or other binding contracts or agreements, or the establishment of a commitment, as applicable, agreement with respect to such acquisition, Investment, Disposition, acquisition or Investment or incurrence or assumption of Indebtedness or related transaction (or, solely in connection with an acquisition to which the United Kingdom City Code on Takeovers and Mergers applies, the date on which a “Rule 2.7 Announcement” of a firm intention to make an offer or similar announcement or determination in another jurisdiction subject to laws similar to the City Code in respect of such target company made in compliance with the City Code or similar laws or practices in other jurisdictions (a “Public Offer”)) or (y) the consummation of such acquisition, acquisition or Investment, Disposition, or incurrence or assumption of Indebtedness or related transactionIndebtedness, (2) in the case of any Restricted Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) the declaration of such Restricted Payment or (y) the making of such Restricted Payment and (3) in the case of any Restricted Debt Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Debt Payment or (y) the making of such Restricted Debt Payment (the applicable date pursuant to clause (1), (2) or (3) above), as applicable, the “LCT Test Date”), and ifin each case, after such ratios and other provisions are measured on a Pro Forma Basis (disregarding for the purposes of such pro forma calculation any Borrowing under the RC Facility or any other revolving facility) after giving effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) andrelevant acquisition, at the election of the Borrower, any other acquisition or similar InvestmentIndebtedness, Restricted Payment, Payment and/or Restricted Debt Payment or Disposition that has not been consummated but with respect to which the Borrower has elected to test any applicable condition prior to the date of consummation in accordance with this Section 1.09(a), as if they had occurred at the beginning of the most recently completed Test Period ending prior to the LCT Test Date, the Borrower could have taken such action on the relevant LCT Test Date in compliance with such ratios, representation, warranty, absence of Default or Event of Default or “basket”, such ratio, representation, warranty, absence of Default or Event of Default or “basket” shall be deemed to have been complied witha Pro Forma Basis. For the avoidance of doubt, if If the Borrower has made an a LCT Election and (x) any of the ratios or “baskets” for which compliance was determined or tested as of the LCT Test Date are exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of fluctuations in any such ratio or “basket” (including due to fluctuations of the target of any Limited Condition Transaction) at or prior to the consummation of the relevant Limited Condition Transaction, such “baskets” or ratios and other provisions will be deemed not to have been exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction is permitted hereunder (provided, for the avoidance of doubt, that the Borrower or any other Group Member may rely upon any improvement in any such ratio or “basket” availability) and (y) then in connection with any subsequent calculation determination of compliance with any financial ratio or “basket” availability test and/or the amount of Consolidated Adjusted EBITDA or Consolidated Total Assets with respect to the incurrence of Indebtedness or Liens, or the making of Restricted Payments or Restricted Debt Payments on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement or Public Offer for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, compliance with any such financial ratio or “basket” availability test and/or amount of Consolidated Adjusted EBITDA or Consolidated Total Assets shall be calculated tested by calculating the availability under such financial ratio or test and/or the amount of Consolidated Adjusted EBITDA or Consolidated Total Assets, as applicable, on a Pro Forma Basis pro forma basis assuming such Limited Condition Transaction and any other transactions in connection therewith have been consummated (including any incurrence of debt Indebtedness and the use of proceeds thereof (but without netting the cash proceeds thereof).
(b) had been consummated. The provisions For purposes of this Section 1.09(a) shall, for determining the avoidance of doubt, apply in respect of the incurrence permissibility of any Incremental Facility. For the avoidance action, change, transaction or event that requires a calculation of doubt, the making of an LCT Election shall not require notice to the Administrative Agent or any other Person. For the further avoidance of doubt, in the absence of an LCT Election, unless specifically stated in this Agreement to be otherwise, all determinations of (x) compliance with any financial ratio or test (including, without limitation, Section 6.106.15, any First Lien Net Senior Secured Leverage Ratio test, any Secured Net Leverage Ratio test, any Total Net Leverage Ratio testtest and/or the amount of Consolidated Adjusted EBITDA or Consolidated Total Assets), any Interest Coverage Ratio test, and/or any other such financial ratio or test) and/or any cap expressed as a percentage of Consolidated EBITDA or any other financial metric, (y) the accuracy of any representation and warranties, or any requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (z) any availability test under any “baskets” shall, in each case, shall be made as of the applicable date of the consummation of the Specified Transaction or calculated at the time the applicable such action is takentaken (subject to clause (a) 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 occur be deemed to have occurred solely as a result of a change in any such financial ratio or test, cap, financial metric, or “basket” availability test occurring after the time such timeaction is taken, such change is made, such transaction is consummated or such event occurs, as the case may be.
(bc) 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 6.10, any First Lien Net Senior Secured Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Senior Leverage Ratio test and/or any Interest Total Leverage Ratio test and/or any Fixed Charge Coverage Ratio test) (any such amounts, the “Fixed Amounts”) substantially concurrently (or as part of a series of related transactions) 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 6.10, any First Lien Net Senior Secured Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Senior Leverage Ratio test and/or any Interest Coverage Total Leverage Ratio test) (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that (i) the Fixed Amounts (and any cash proceeds thereof and any concurrent borrowing under a revolving facility, including a Borrowing consisting of RC Facility Loans or any other revolving facility) shall be disregarded, and disregarded in the incurrence calculation of the financial ratio or test applicable to the Incurrence-Based Amount shall be calculatedAmounts, first without giving effect to any Fixed Amounthowever, but giving full pro forma effect to for the use avoidance of proceeds of such Fixed Amount and (ii) the doubt, substantially concurrent incurrence of the Indebtedness and Liens in reliance upon Fixed Amount Amounts shall not be calculated thereafter.
(c) Notwithstanding anything to the contrary herein, disregarded for purposes of the covenants described in Article VI, if any transaction or action would be permitted pursuant to one or more provisions described therein, the Borrower may divide and classify such transaction or action within any covenant in any manner that complies testing compliance with the covenants set forth therein, Total Leverage Ratio or the Fixed Charge Coverage Ratio under Section 6.04 and may later divide and reclassify any such transaction or action so long as the transaction or action (as so divided and/or reclassified) would be permitted to be made in reliance on the applicable exception as of the date of such reclassification; provided that if any financial ratio or test governing any applicable Incurrence-Based Amount would be satisfied in any subsequent period following the utilization of any Fixed Amount, such reclassification shall be deemed to have automatically occurred if not elected by the BorrowerSection 6.06.
Appears in 1 contract
Certain Calculations and Tests. (a) Notwithstanding anything in this Agreement or any Loan Document to the contrary, for purposes of (i) determining compliance with any provision in this Agreement or any Loan Document that requires the calculation of any financial ratio or test (including, without limitation, Section 6.10, any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, Total Net Leverage Ratio testRatio, any Interest Total Net Cash Leverage Ratio, any Contract Asset Balance Coverage Ratio test, and/or or any other financial ratio or testLTV Ratio test (including as required in the definition of “Permitted Acquisition”)), (ii) determining compliance with representations and warranties or the requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) (other than in connection with any borrowing of Revolving Loans or issuance of any Letter of Credit under the Revolving Credit Facility (or Other Revolving Commitments)) or (iii) testing any cap measured expressed as a percentage of Consolidated EBITDA EBITDA, Consolidated Cash EBITDA, Liquidity or any other financial metric or by reference to the Available Amount, or Consolidated Total Assets and any other availability of a “basket” or exception set forth in this AgreementArticle VI, in each case, case in connection with a Specified Transaction or other transaction permitted hereunder, undertaken in connection with the consummation of a Limited Condition Transaction, the date of determinationdetermination of whether any such action is permitted hereunder (but not, for the avoidance of doubt, in connection with any calculation of the Financial Maintenance Covenant for the purposes of Section 6.13 only), at the election of the Borrower (the Borrower’s such election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), will be deemed to be (1) in the case of any acquisition or other Investment, Disposition, incurrence of Indebtedness or any transaction related to the foregoing, in each case not prohibited hereunder, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) either (x) the execution of date the definitive acquisition agreements for such Limited Condition Transaction are entered into or other binding contracts or agreements, or the establishment (y) in respect of a commitment, as applicable, with respect to such acquisition, Investment, Disposition, Indebtedness or related transaction (or, solely sales in connection with an acquisition to which the United Kingdom City Code on Takeovers and Mergers appliesapplies (or similar law or practice in other jurisdictions), the date on which a “Rule 2.7 Announcementannouncement” of a firm intention intends to make an offer or similar announcement or determination in another jurisdiction subject to laws similar to the City Code in respect of such target company made in compliance with the City Code or similar laws or practices in other jurisdictions (a “Public Offer”)) or (y) the consummation of such acquisition, Investment, Disposition, incurrence of Indebtedness or related transaction, (2) in the case of any Restricted Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) the declaration of such Restricted Payment or (y) the making of such Restricted Payment and (3) in the case of any Restricted Debt Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Debt Payment or (y) the making of such Restricted Debt Payment (the applicable date pursuant to clause (1), (2) or (3) above, as applicable, the “LCT Test Date”), and if, after such ratios and other provisions are measured on a Pro Forma Basis (disregarding for the purposes of such pro forma calculation any Borrowing under the RC Facility or any other revolving facility) after giving effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) and, at the election of the Borrower, any other acquisition or similar Investment, Restricted Payment, Restricted Debt Payment or Disposition that has not been consummated but with respect to which the Borrower has elected to test any applicable condition prior to the date of consummation in accordance with this Section 1.09(a), as if they had occurred at the beginning of the most recently completed Test Period ending prior to the LCT Test Date, the Borrower could have taken such action on the relevant LCT Test Date in compliance with such ratios, representation, warranty, absence of Default or Event of Default or “basket”, such ratio, representation, warranty, absence of Default or Event of Default or “basket” shall be deemed to have been complied with. For the avoidance of doubt, if the Borrower has made an LCT Election and (x) any of the ratios or “baskets” for which compliance was determined or tested as of the LCT Test Date are exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of fluctuations in any such ratio or “basket” (including due to fluctuations of the target of any Limited Condition Transaction) at or prior to the consummation of the relevant Limited Condition Transaction, such “baskets” or ratios and other provisions will be deemed not to have been exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction is permitted hereunder (provided, for the avoidance of doubt, that the Borrower or any other Group Member may rely upon any improvement in any such ratio or “basket” availability) and (y) in connection with any subsequent calculation of any ratio or “basket” availability on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement or Public Offer for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or “basket” availability shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of debt and the use of proceeds thereof (but without netting the cash proceeds thereof)) had been consummated. The provisions of this Section 1.09(a) shall, for the avoidance of doubt, apply in respect of the incurrence of any Incremental Facility. For the avoidance of doubt, the making of an LCT Election shall not require notice to the Administrative Agent or any other Person. For the further avoidance of doubt, in the absence of an LCT Election, unless specifically stated in this Agreement to be otherwise, all determinations of (x) compliance with any financial ratio or test (including, without limitation, Section 6.10, any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, any Total Net Leverage Ratio test, any Interest Coverage Ratio test, and/or any other financial ratio or test) and/or any cap expressed as a percentage of Consolidated EBITDA or any other financial metric, (y) the accuracy of any representation and warranties, or any requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (z) any availability test under any “baskets” shall, in each case, be made as of the applicable date of the consummation of the Specified Transaction or the time the applicable action is taken, change is made, transaction is consummated or event occurs, as the case may be, and no Default or Event of Default shall occur solely as a result of a change in any such financial ratio or test, cap, financial metric, or “basket” availability occurring after such time
(b) 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 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Fixed Amounts”) substantially concurrently (or as part of a series of related transactions) 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 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that (i) the Fixed Amounts (and any cash proceeds thereof and any concurrent borrowing under a revolving facility, including a Borrowing consisting of RC Facility Loans or any other revolving facility) shall be disregarded, and the incurrence of the Incurrence-Based Amount shall be calculated, first without giving effect to any Fixed Amount, but giving full pro forma effect to the use of proceeds of such Fixed Amount and (ii) the incurrence of the Fixed Amount shall be calculated thereafter.
(c) Notwithstanding anything to the contrary herein, for purposes of the covenants described in Article VI, if any transaction or action would be permitted pursuant to one or more provisions described therein, the Borrower may divide and classify such transaction or action within any covenant in any manner that complies with the covenants set forth therein, and may later divide and reclassify any such transaction or action so long as the transaction or action (as so divided and/or reclassified) would be permitted to be made in reliance on the applicable exception as of the date of such reclassification; provided that if any financial ratio or test governing any applicable Incurrence-Based Amount would be satisfied in any subsequent period following the utilization of any Fixed Amount, such reclassification shall be deemed to have automatically occurred if not elected by the Borrower.United
Appears in 1 contract
Samples: Credit Agreement and Incremental Facility Agreement (GoHealth, Inc.)
Certain Calculations and Tests. (a) Notwithstanding anything to the contrary herein, but subject to Sections 1.06 (b) and (c), all financial ratios and tests (including the Leverage Ratio, the Interest Coverage Ratio and the amount of Consolidated EBITDA) contained in this Agreement or that are calculated with respect to any Loan Document Test Period shall be calculated with respect to such Test Period on a Pro Forma basis.
(b) Notwithstanding anything to the contrarycontrary herein (including in connection with any calculation made on a Pro Forma basis), for purposes to the extent that the terms of this Agreement require (i) determining compliance with any provision in this Agreement or any Loan Document that requires the calculation of any financial ratio or test (including, without limitation, Section 6.107.01, Section 7.02, any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, Total Net Leverage Ratio test, test and/or any Interest Coverage Ratio test, ) and/or any other financial ratio cap expressed as a percentage of Consolidated EBITDA or test), (ii) determining compliance with representations and warranties or the requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (iii) testing any cap measured the making of representations and warranties by each Loan Party as a percentage of Consolidated EBITDA or any other financial metric or by reference to the Available Amount, or any other availability of a “basket” or exception set forth in this Agreement, in each case, the Loan Documents as conditions to the assumption or incurrence of Indebtedness in connection with a Limited Condition Transactionan acquisition or similar investment, the date determination of determinationwhether the relevant condition is satisfied may be made, at the election (any such election, a “Testing Election”) of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), will be deemed to be (1) in the case of any acquisition or other Investment, Disposition, incurrence of Indebtedness or any transaction related to the foregoing, in each case not prohibited hereunder, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) either (x) the execution of the definitive acquisition agreements or other binding contracts or agreements, or the establishment of a commitment, as applicable, agreement with respect to such acquisition, Investment, Disposition, Indebtedness acquisition or related transaction (or, solely in connection with an acquisition to which the United Kingdom City Code on Takeovers and Mergers applies, the date on which a “Rule 2.7 Announcement” of a firm intention to make an offer or similar announcement or determination in another jurisdiction subject to laws similar to the City Code in respect of such target company made in compliance with the City Code or similar laws or practices in other jurisdictions (a “Public Offer”)) investment or (y) the consummation of such acquisition, Investment, Disposition, incurrence of Indebtedness acquisition or related transaction, (2) in the case of any Restricted Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) the declaration of such Restricted Payment or (y) the making of such Restricted Payment and (3) in the case of any Restricted Debt Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Debt Payment or (y) the making of such Restricted Debt Payment (the applicable date pursuant to clause (1), (2) or (3) above, as applicable, the “LCT Test Date”), and if, after such ratios and other provisions are measured on a Pro Forma Basis (disregarding for the purposes of such pro forma calculation any Borrowing under the RC Facility or any other revolving facility) investment after giving effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) and, at the election of the Borrower, any other relevant acquisition or similar Investment, Restricted Payment, Restricted Debt Payment or Disposition that has not been consummated but with respect to which the Borrower has elected to test any applicable condition prior to the date of consummation in accordance with this Section 1.09(a), as if they had occurred at the beginning of the most recently completed Test Period ending prior to the LCT Test Date, the Borrower could have taken such action on the relevant LCT Test Date in compliance with such ratios, representation, warranty, absence of Default or Event of Default or “basket”, such ratio, representation, warranty, absence of Default or Event of Default or “basket” shall be deemed to have been complied with. For the avoidance of doubt, if the Borrower has made an LCT Election and (x) any of the ratios or “baskets” for which compliance was determined or tested as of the LCT Test Date are exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of fluctuations in any such ratio or “basket” (including due to fluctuations of the target of any Limited Condition Transaction) at or prior to the consummation of the relevant Limited Condition Transaction, such “baskets” or ratios and other provisions will be deemed not to have been exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction is permitted hereunder (provided, for the avoidance of doubt, that the Borrower or any other Group Member may rely upon any improvement in any such ratio or “basket” availability) and (y) in connection with any subsequent calculation of any ratio or “basket” availability on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement or Public Offer for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or “basket” availability shall be calculated investment on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith basis.
(including any incurrence c) For purposes of debt and determining the use of proceeds thereof (but without netting the cash proceeds thereof)) had been consummated. The provisions of this Section 1.09(a) shall, for the avoidance of doubt, apply in respect of the incurrence permissibility of any Incremental Facility. For the avoidance action, change, transaction or event that requires a calculation of doubt, the making of an LCT Election shall not require notice to the Administrative Agent or any other Person. For the further avoidance of doubt, in the absence of an LCT Election, unless specifically stated in this Agreement to be otherwise, all determinations of (x) compliance with any financial ratio or test (including, without limitation, Section 6.107.01, Section 7.02, any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, any Total Net Leverage Ratio test, any Interest Coverage Ratio test, and/or any other the amount of Consolidated EBITDA), such financial ratio or test) and/or any cap expressed as a percentage of Consolidated EBITDA or any other financial metric, (y) the accuracy of any representation and warranties, or any requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (z) any availability test under any “baskets” shall, in each case, shall be made as of the applicable date of the consummation of the Specified Transaction or calculated at the time the applicable such action is takentaken (subject to clause (b) 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 occur be deemed to have occurred solely as a result of a change in any such financial ratio or test, cap, financial metric, or “basket” availability test occurring after the time such time
(b) Notwithstanding anything to the contrary hereinaction is taken, 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 (includingsuch change is made, without limitation, Section 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Fixed Amounts”) substantially concurrently (or as part of a series of related transactions) 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 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that (i) the Fixed Amounts (and any cash proceeds thereof and any concurrent borrowing under a revolving facility, including a Borrowing consisting of RC Facility Loans or any other revolving facility) shall be disregarded, and the incurrence of the Incurrence-Based Amount shall be calculated, first without giving effect to any Fixed Amount, but giving full pro forma effect to the use of proceeds of such Fixed Amount and (ii) the incurrence of the Fixed Amount shall be calculated thereafter.
(c) Notwithstanding anything to the contrary herein, for purposes of the covenants described in Article VI, if any transaction or action would be permitted pursuant to one or more provisions described therein, the Borrower may divide and classify such transaction is consummated or action within any covenant in any manner that complies with the covenants set forth thereinsuch event occurs, and may later divide and reclassify any such transaction or action so long as the transaction or action (as so divided and/or reclassified) would be permitted to be made in reliance on the applicable exception as of the date of such reclassification; provided that if any financial ratio or test governing any applicable Incurrence-Based Amount would be satisfied in any subsequent period following the utilization of any Fixed Amount, such reclassification shall be deemed to have automatically occurred if not elected by the Borrowercase may be.
Appears in 1 contract
Samples: Credit Agreement (IHS Markit Ltd.)
Certain Calculations and Tests. (a) Notwithstanding anything in this Agreement or any Loan Document to the contrary, for purposes of (i) determining compliance with any provision in this Agreement or any Loan Document that requires the calculation of any financial ratio or test (including, without limitation, Section 6.10, any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, Total Net Leverage Ratio testRatio, any Interest Total Net Cash Leverage Ratio, or any Contract Asset Balance Coverage Ratio test, and/or or any other financial ratio or testLTV Ratio test (including as required in the definition of “Permitted Acquisition”)), (ii) determining compliance with representations and warranties or the requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) (other than in connection with any borrowing of Revolving Loans or issuance of any Letter of Credit under the Revolving Credit Facility (or Other Revolving Commitments)) or (iii) testing any cap measured expressed as a percentage of Consolidated EBITDA EBITDA, Consolidated Cash EBITDA, Liquidity or any other financial metric or by reference to the Available Amount, or Consolidated Total Assets and any other availability of a “basket” or exception set forth in this AgreementArticle 6VI, in each case, case in connection with a Specified Transaction or other transaction permitted hereunder, undertaken in connection with the consummation of a Limited Condition Transaction, the date of determinationdetermination of whether any such action is permitted hereunder (but not, for the avoidance of doubt, in connection with any calculation of the Financial Maintenance Covenant for the purposes of Section 6.13 only), at the election of the Borrower (the Borrower’s such election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), will be deemed to be (1) in the case of any acquisition or other Investment, Disposition, incurrence of Indebtedness or any transaction related to the foregoing, in each case not prohibited hereunder, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) either (x) the execution of date the definitive acquisition agreements for such Limited Condition Transaction are entered into or other binding contracts or agreements, or the establishment (y) in respect of a commitment, as applicable, with respect to such acquisition, Investment, Disposition, Indebtedness or related transaction (or, solely sales in connection with an acquisition to which the United Kingdom City Code on Takeovers and Mergers appliesapplies (or similar law or practice in other jurisdictions), the date on which a “Rule 2.7 Announcementannouncement” of a firm intention intends to make an offer or similar announcement or determination in another jurisdiction subject to laws similar to the United Kingdom City Code on Takeovers and Mergers in respect of such a target company made in compliance with the City Code or similar laws or practices in other jurisdictions of a Limited Condition Transaction (a “Public Offer”)) or (y) the consummation of such acquisition, Investment, Disposition, incurrence of Indebtedness or related transaction, (2) in the case of any Restricted Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) the declaration of such Restricted Payment or (y) the making of such Restricted Payment and (3) in the case of any Restricted Debt Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Debt Payment or (y) the making of such Restricted Debt Payment (the applicable date pursuant to clause (1), (2) or (3) above, as applicable, the “LCT Test Date”), and if, after such ratios and other provisions are measured on a Pro Forma Basis (disregarding for the purposes of such giving pro forma calculation any Borrowing under the RC Facility or any other revolving facility) after giving effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) and, at the election of the Borrower, any other acquisition or similar Investment, Restricted Payment, Restricted Debt Payment or Disposition that has not been consummated but with respect to which the Borrower has elected to test any applicable condition prior to the date of consummation in accordance with this Section 1.09(a), as if they had occurred at the beginning of the most recently completed Test Tests Period ending on or prior to the LCT Test Date, the Borrower could have taken such action on the relevant LCT Test Date in compliance with such ratios, representation, warranty, absence of Default or Event of Default or “basket,”, such ratio, representation, warranty, absence of Default or Event of Default or “basket” shall be deemed to have been complied with. For the avoidance of doubt, if the Borrower has made an LCT Election and (x) any of the ratios or “baskets” for which compliance was determined or tested as of the LCT Test Date are exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of fluctuations in any such ratio or “basket” (including due to fluctuations of the target of any Limited Condition Transaction) at or prior to the 105 #97964454v4 #97964454v11 consummation of the relevant Limited Condition Transaction, such “baskets” or ratios and other provisions will not be deemed not to have been exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction is permitted hereunder (provided, for the avoidance of doubt, that the Borrower or any other Group Member may rely upon any improvement in any such ratio or “basket” availability) and (y) in connection with any subsequent calculation of any ratio or “basket” availability on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement or Public Offer for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or “basket” availability shall be calculated (x) on a Pro Forma Basis pro forma basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of debt Indebtedness and the use of proceeds thereof (but without netting the cash proceeds thereof)) had been consummated or (y) solely in respect of any Restricted Payment or any Restricted Debt Payment, on a standalone basis without assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof (but without netting the cash proceeds thereof)) had been consummated. The provisions of this Section 1.09(a) shall, for the avoidance of doubt, apply in respect of the incurrence of any Incremental Facility. For the avoidance of doubt, the making of an LCT Election shall not require notice to the Administrative Agent or any other Person. For the further avoidance of doubt, in the absence of an LCT Election, unless specifically stated in this Agreement to be otherwise, all determinations of (x) compliance with any financial ratio or test (including, without limitation, Section 6.10, any First Lien Total Net Leverage Ratio test, any Secured Net Leverage Ratio testRatio, any Total Net Cash Leverage Ratio testRatio, any Interest or Contract Asset Balance Coverage Ratio testor any LTV Ratio test (but not, and/or for the avoidance of doubt, in connection with any other financial ratio or testcalculation of the Financial Maintenance Covenant for the purposes of Section 6.13 only)) and/or any cap expressed as a percentage of Consolidated EBITDA EBITDA, Consolidated Cash EBITDA, Liquidity or any other financial metricConsolidated Total Assets, (y) the accuracy of any representation and warranties, or any requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (z) any availability test under any “baskets” shall, in each case, shall be made as of the applicable date of the consummation of the Specified Transaction or the time the applicable action is taken, change is made, other transaction is consummated or event occurs, as the case may be, and no Default or Event of Default shall occur solely as a result of a change in any such financial ratio or test, cap, financial metric, or “basket” availability occurring after such time
(b) 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 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Fixed Amounts”) substantially concurrently (or as part of a series of related transactions) 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 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that (i) the Fixed Amounts (and any cash proceeds thereof and any concurrent borrowing under a revolving facility, including a Borrowing consisting of RC Facility Loans or any other revolving facility) shall be disregarded, and the incurrence of the Incurrence-Based Amount shall be calculated, first without giving effect to any Fixed Amount, but giving full pro forma effect to the use of proceeds of such Fixed Amount and (ii) the incurrence of the Fixed Amount shall be calculated thereafterhereunder.
(c) Notwithstanding anything to the contrary herein, for purposes of the covenants described in Article VI, if any transaction or action would be permitted pursuant to one or more provisions described therein, the Borrower may divide and classify such transaction or action within any covenant in any manner that complies with the covenants set forth therein, and may later divide and reclassify any such transaction or action so long as the transaction or action (as so divided and/or reclassified) would be permitted to be made in reliance on the applicable exception as of the date of such reclassification; provided that if any financial ratio or test governing any applicable Incurrence-Based Amount would be satisfied in any subsequent period following the utilization of any Fixed Amount, such reclassification shall be deemed to have automatically occurred if not elected by the Borrower.
Appears in 1 contract
Samples: Credit Agreement (GoHealth, Inc.)
Certain Calculations and Tests. (a) Notwithstanding anything in to the contrary herein, to the extent that the terms of this Agreement or require (including any Loan Document such requirement that is to the contrary, for purposes of be determined on a Pro Forma Basis) (i) determining compliance with any provision in this Agreement or any Loan Document that requires the calculation of any financial ratio or test (including, without limitation, including Section 6.106.14(a), any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, any Total Net Leverage Ratio test, test or any Interest Coverage Ratio test, ) and/or any other financial ratio cap expressed as a percentage of Consolidated Adjusted EBITDA or test)Consolidated Total Assets, (ii) determining compliance with representations and warranties the making or the requirement regarding accuracy of any representation or warranty or (iii) the absence of a any Default or Event of Default (or any type of Default or Event of Default) or (iii) testing any cap measured as a percentage condition to (A) the consummation of Consolidated EBITDA any transaction in connection with any acquisition or any other financial metric or by reference to the Available Amount, or any other availability of similar Investment that is not conditioned on obtaining third party financing (a “basket” or exception set forth in this AgreementLimited Condition Acquisition”) and/or (B) the making of any Restricted Debt Payment requiring irrevocable advance notice thereof (or, in each case, any assumption or incurrence of any Indebtedness in connection with a Limited Condition Transactiontherewith, including any Incremental Facility), the date determination of determinationwhether the relevant condition is satisfied may be made, at the election of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), will be deemed to be (1) in the case of any acquisition or other Investment, Disposition, incurrence of Indebtedness or any transaction related to the foregoing, in each case not prohibited hereunderLimited Condition Acquisition, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) either (x) the execution of the definitive acquisition agreements or other binding contracts or agreements, or the establishment of a commitment, as applicable, agreement with respect to such acquisition, Investment, Disposition, Indebtedness acquisition or related transaction (or, solely in connection with an acquisition to which the United Kingdom City Code on Takeovers and Mergers applies, the date on which a “Rule 2.7 Announcement” of a firm intention to make an offer or similar announcement or determination in another jurisdiction subject to laws similar to the City Code in respect of such target company made in compliance with the City Code or similar laws or practices in other jurisdictions (a “Public Offer”)) Investment or (y) the consummation of such acquisitionLimited Condition Acquisition, Investmentprovided, Dispositionthat, in the case of clause (x) above, during the period between the signing of the definitive agreement with respect to such Limited Condition Acquisition and such time as such Limited Condition Acquisition has been consummated or the definitive documentation with respect to such Limited Condition Acquisition has been terminated or abandoned or expires without consummation of such Limited Condition Acquisition, (A) any such financial ratio or test shall be calculated on a Pro Forma Basis assuming such acquisition or Investment (and other transactions in connection therewith, including any assumption or incurrence of Indebtedness and the use of proceeds thereof) has been consummated and (B) solely with respect to any calculation of compliance with a financial ratio that is a condition to the making of any Restricted Payment or related transactionRestricted Debt Payment, the calculation of such financial ratio shall be tested both (I) on a Pro Forma Basis for such Limited Condition Acquisition and (II) assuming such Limited Condition Acquisition is not consummated and (2) in the case of any Restricted Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) the declaration of such Restricted Payment or (y) the making of such Restricted Payment and (3) in the case of any Restricted Debt Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Debt Payment or (y) the making of such Restricted Debt Payment (the applicable date pursuant to clause (1)Payment, (2) or (3) above, as applicable, the “LCT Test Date”), and ifin each case, after such ratios and other provisions are measured giving effect to the relevant Limited Condition Acquisition or Restricted Debt Payment on a Pro Forma Basis (disregarding for the purposes of such and if, after giving pro forma calculation any Borrowing under the RC Facility or any other revolving facility) after giving effect to the relevant Limited Condition Transaction Acquisition and/or Restricted Debt Payment and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) and, at the election of the Borrower, any other acquisition or similar Investment, Restricted Payment, Restricted Debt Payment or Disposition that has not been consummated but with respect to which the Borrower has elected to test any applicable condition prior to the date of consummation in accordance with this Section 1.09(a), as if they had occurred at the beginning of the most recently completed recent Test Period ending prior to the LCT Test Dateapplicable test date, the Borrower could have taken such action on the relevant LCT Test Date test date in compliance with such ratios, representation, warranty, absence of Default financial ratio or Event of Default or “basket”, such ratio, representation, warranty, absence of Default financial ratio or Event of Default or “basket” basket shall be deemed to have been complied with. For the avoidance of doubt, if the Borrower has made an LCT Election election pursuant to this Section 1.10(a) and (x) if any of the ratios such ratios, baskets or “baskets” for which compliance was determined or tested as of the LCT Test Date amounts are exceeded (or, with respect subsequent to the Interest Coverage Ratio, not reached) applicable test date as a result of fluctuations in any such ratio or “basket” amount (including due to fluctuations in Consolidated Adjusted EBITDA of the target of any Borrower or the person subject to such Limited Condition Transaction) Acquisition), at or prior to the consummation of the relevant Limited Condition Transactiontransaction or action, such “baskets” ratios, baskets or ratios and other provisions amounts will not be deemed not to have been exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction relevant transaction or action is permitted hereunder to be consummated or taken.
(providedb) For purposes of determining the permissibility of any action, for the avoidance of doubtchange, transaction or event that the Borrower or any other Group Member may rely upon any improvement in any such ratio or “basket” availability) and (y) in connection with any subsequent requires a calculation of any ratio or “basket” availability on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement or Public Offer for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or “basket” availability shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of debt and the use of proceeds thereof (but without netting the cash proceeds thereof)) had been consummated. The provisions of this Section 1.09(a) shall, for the avoidance of doubt, apply in respect of the incurrence of any Incremental Facility. For the avoidance of doubt, the making of an LCT Election shall not require notice to the Administrative Agent or any other Person. For the further avoidance of doubt, in the absence of an LCT Election, unless specifically stated in this Agreement to be otherwise, all determinations of (x) compliance with any financial ratio or test (including, without limitation, including Section 6.106.14(a), any First Lien Net Leverage Ratio testRatio, any Secured Net Leverage Ratio test, any Total Net Leverage Ratio test, test and/or any Interest Coverage Ratio testtest and/or the amount of Consolidated Adjusted EBITDA or Consolidated Total Assets), and/or any other such financial ratio or test) and/or any cap expressed as a percentage of Consolidated EBITDA or any other financial metric, (y) the accuracy of any representation and warranties, or any requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (z) any availability test under any “baskets” shall, in each case, shall be made as of the applicable date of the consummation of the Specified Transaction or calculated at the time the applicable such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may bebe (or, in each case, such other time as is applicable thereto pursuant to clause (a) above), and no Default or Event of Default shall occur be deemed to have occurred solely as a result of a subsequent change in any such financial ratio or test, cap, financial metric, or “basket” availability occurring after such time.
(bc) 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 Incremental Facilities) that does not require compliance with a financial ratio or test (including, without limitation, including Section 6.106.14(a), any First Lien Net Leverage Ratio, any Secured Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Ratio test) (for the avoidance of doubt, excluding the Revolving Facilities and any other revolving facility) (any such amounts, the “Fixed Amounts”) ), substantially concurrently (or as part of a series of related transactions) 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, including Section 6.106.14(a), any First Lien Net Leverage Ratio, any Secured Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that (i) the Fixed Amounts (and even if part of the same transaction or, in the case of Indebtedness, the same tranche, as any cash proceeds thereof and any concurrent borrowing under a revolving facility, including a Borrowing consisting of RC Facility Loans or any other revolving facilityIncurrence-Based Amounts) shall be disregarded, and disregarded in the incurrence calculation of the financial ratio or test applicable to the Incurrence-Based Amount shall be calculated, first without giving effect to any Fixed AmountAmounts, but giving full pro forma effect to any increase in the use amount of Consolidated Adjusted EBITDA or Consolidated Total Assets (including Unrestricted Cash) resulting from the reliance on the Fixed Amounts. It is further agreed that in connection with the calculation of any financial ratio applicable to the Incurrence-Based Amounts, such test shall be calculated on a Pro Forma Basis for the incurrence of such Indebtedness (including the application of the proceeds thereof), but without netting the Cash proceeds of such Indebtedness, and in the case of any such Indebtedness constituting revolving Indebtedness or delayed draw Indebtedness, assuming that such Indebtedness is fully drawn. Any amounts incurred or transactions entered into (or consummated) in reliance on a Fixed Amount shall be automatically reclassified as incurred under the Incurrence-Based Amount at such time as the Borrower meets the applicable ratio under the Incurrence-Based Amount at such time on a pro forma basis.
(d) It is understood and agreed that any Indebtedness, Lien, Restricted Payment, Restricted Debt Payment, Investment, Disposition or Affiliate transaction need not be permitted solely by reference to one clause or subclause of Section 6.01, 6.02, 6.03, 6.04, 6.05, 6.06 or 6.08, respectively, but may instead be permitted in part under any combination of clauses or subclauses of such Section, all as classified or, to the extent such alternative classification would have been permitted at the time of the relevant action, reclassified by the Borrower in its sole discretion, and shall constitute a usage of any availability under such clause or subclause only to the extent so classified or reclassified thereto; provided that (i) the Credit Facilities may only be permitted under Section 6.01(a) and secured by Liens permitted pursuant to Section 6.02(a) and (ii) Indebtedness incurred under Section 6.01(q), 6.01(w) or 6.01(y), to the extent such Indebtedness is secured by Liens on the Collateral that are pari passu with or junior to the Liens on the Collateral securing the Credit Facilities, may not be reclassified to any other clause of Section 6.01 and such Liens on the Collateral may only be incurred under Section 6.02(s) or 6.02(t), as applicable. In addition, for purposes of determining compliance at any time with Section 6.01, 6.02, 6.03 or 6.05, if any Indebtedness, Lien, Restricted Payment, Restricted Debt Payment or Investment (or a portion thereof), as applicable, that was previously incurred, made or otherwise undertaken as having been incurred, made or otherwise undertaken under any “ratio-based” basket set forth in such Section would, using the figures as of the end of or for the most recently ended Test Period, be permitted under the applicable “ratio-based” basket, then such item (or such portion thereof) shall be automatically reclassified as having been incurred under the applicable “ratio-based” basket; provided that, in the case of Sections 6.01 and 6.02, any such reclassification shall be subject to the limitations set forth in the proviso to the immediately preceding sentence.
(e) For purposes of determining compliance with this Agreement, (i) the outstanding principal amount of any Indebtedness issued at a price that is less than the principal amount thereof shall be equal, as of any date of determination, to the principal amount thereof that would appear on a consolidated balance sheet of the Borrower as of such date prepared in accordance with GAAP and (ii) the incurrence accrual of the Fixed Amount shall be calculated thereafter.
(c) Notwithstanding anything to the contrary herein, for purposes of the covenants described in Article VI, if any transaction or action would be permitted pursuant to one or more provisions described thereininterest, the Borrower may divide and classify such transaction accrual of dividends, the accretion of accreted value, the amortization of original issue discount, the payment of interest or action within a dividend in the form of additional Indebtedness or additional shares of Capital Stock and/or any covenant increase in the amount of Indebtedness outstanding solely as a result of any manner that complies with fluctuation in the covenants set forth therein, and may later divide and reclassify any such transaction or action so long as the transaction or action (as so divided and/or reclassified) would be permitted to be made in reliance on the applicable exception as exchange rate of the date of such reclassification; provided that if any financial ratio or test governing any applicable Incurrence-Based Amount would be satisfied in any subsequent period following the utilization of any Fixed Amount, such reclassification currency shall not be deemed to have automatically occurred if be an incurrence of Indebtedness and, to the extent secured, shall not elected by be deemed to result in an increase of the Borrowerobligations so secured or to be a grant of a Lien securing any such obligations.
Appears in 1 contract
Certain Calculations and Tests. (a) Notwithstanding anything to the contrary in this Agreement or any Loan Document to the contraryIndenture, for purposes of determining:
(i1) determining compliance (including any requirement to determine compliance on a Pro Forma Basis) with any provision in this Agreement or any Loan Document that requires the calculation of any financial ratio or test (including, without limitation, Section 6.10, including any First Lien Net Consolidated Total Leverage Ratio test, any Consolidated Secured Net Leverage Ratio test, Total Net Leverage Ratio test, or any Interest Fixed Charge Coverage Ratio test, and/or test (including any such test expressed as such ratio being no worse than the corresponding ratio prior to giving pro forma effect to the applicable Testing Transaction) or testing availability under any basket expressed as a percentage of Consolidated EBITDA or otherwise determined by reference to a financial metric (including by reference to the CNI Growth Amount or any other financial ratio metric set forth in Section 4.07(a)(2) or testto the Market Capitalization), ; or
(ii2) determining compliance with representations and warranties or the requirement regarding the absence of a any Default or Event of Default (or any type of Default or Event of Default) or );
(iii) testing any cap measured as a percentage of Consolidated EBITDA or any other financial metric or by reference to the Available Amount, or any other availability of a “basket” or exception set forth in this Agreement, in each case, in connection with a Limited Condition Transaction, the date of determination, at the election of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), will be deemed to be (1) in the case of any acquisition or other Investment, Disposition, incurrence of Indebtedness or any transaction related to the foregoing, in each case not prohibited hereunder, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) either (xA) the execution of the definitive acquisition agreements agreement or other binding contracts a letter of intent (or agreements, or the establishment of a commitment, as applicable, similar undertaking) with respect to such acquisition, Investment, Disposition, Indebtedness or related transaction Testing Transaction (or, solely in connection with an acquisition the case of any Testing Transaction made pursuant to a tender or similar offer, at the time of the commencement of such offer or, in the case of any Testing Transaction to which the United Kingdom City Code on Takeovers and Mergers applies, the date on which a “Rule 2.7 Announcementannouncement” of a firm intention to make an offer (or similar equivalent announcement or determination in another jurisdiction subject to laws similar to the City Code in respect of such target company made in compliance with the City Code or similar laws or practices in other jurisdictions (a “Public Offer”jurisdiction)) or (y) the consummation of such acquisition, Investment, Disposition, incurrence of Indebtedness or related transaction), (2) in the case of any Restricted Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (xB) the declaration of such Restricted Payment of, or (y) the making of such Restricted Payment and (3) in the case of any Restricted Debt Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) delivery of irrevocable (which may be conditional) notice with respect to, such Testing Transaction or (C) the obtainment of a binding commitment from a third party with respect to such Restricted Debt Payment or (y) the making of such Restricted Debt Payment (the Testing Transaction, all as determined to be applicable date pursuant to clause (1)by Parent in good faith, (2) or (3) above, as applicable, the “LCT Test Date”), and ifin each case, after such ratios and other provisions are measured giving effect on a Pro Forma Basis (disregarding for the purposes of such pro forma calculation any Borrowing under the RC Facility or any other revolving facility) after giving effect to the Limited Condition relevant Testing Transaction (and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness related actions and the use of proceeds thereof) and, at the election of the Borrower, any other acquisition or similar Investment, Restricted Payment, Restricted Debt Payment or Disposition that has not been consummated but with respect to which the Borrower has elected to test any applicable condition prior to the date of consummation in accordance with this Section 1.09(atransactions), as if they had occurred at the beginning of the most recently completed Test Period ending prior to the LCT Test Date, the Borrower could have taken such action on the relevant LCT Test Date in compliance with such ratios, representation, warranty, absence of Default or Event of Default or “basket”, such ratio, representation, warranty, absence of Default or Event of Default or “basket” shall be deemed to have been complied with. For the avoidance of doubt, if the Borrower Parent has made an LCT a Testing Election with respect to any Testing Transaction (and any related actions or transactions), (1) the applicable financial ratios or tests, baskets, financial metrics or other items with respect to which the determination was made on the TT Test Date as set forth above shall not be re-tested or re-determined again at the time of the consummation of such Testing Transaction (and any such related actions or transactions); provided that (x) Parent may elect, in its sole discretion, to re-test or re-determine any of the applicable financial ratios or “baskets” for which compliance was determined tests, baskets or tested other financial metrics as of the LCT last day of, or for, any Test Period ending after such TT Test Date are exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of fluctuations in any such ratio or “basket” (including due to fluctuations of the target of any Limited Condition Transaction) at or but prior to the consummation of such Testing Transaction), in which case, solely as to such financial ratios or tests, baskets or other financial metrics, the relevant Limited Condition Transactionlast day of such Test Period shall thereafter be deemed to be the applicable TT Test Date and (y) if any financial ratios or tests or financial metrics improve or baskets increase after the applicable TT Test Date, such “baskets” improved ratios, tests, financial metrics or ratios baskets may be utilized by Parent and other provisions will be deemed not to have been exceeded (or, its Restricted Subsidiaries with respect to such Testing Transaction (and any related actions or transactions) and (2) the Interest Coverage Ratiooccurrence of any Default or Event of Default, not reached) as a result of such fluctuations solely in each case, after the applicable TT Test Date shall be disregarded for the purposes of determining whether the Limited Condition such Testing Transaction is (and any related actions or transactions) are permitted hereunder (providedby this Indenture. For purposes of any determination under this paragraph, Ratio Interest Expense with respect to any Indebtedness expected to be assumed or incurred as part of, or in connection with, any Testing Transaction will, for purposes of the avoidance of doubtFixed Charge Coverage Ratio, that be calculated using an assumed interest rate based on the Borrower or available documentation therefor, as determined by Parent in good faith. If Parent has made a Testing Election with respect to any other Group Member may rely upon any improvement in any such ratio or “basket” availability) and (y) Testing Transaction, then, in connection with any subsequent calculation of any ratio the financial ratios or “basket” availability tests, baskets or other financial metrics on or following the relevant LCT applicable TT Test Date and prior to the earlier of (ix) the date on which such Limited Condition Testing Transaction is consummated or (iiy) the date that the definitive agreement agreement, tender or Public Offer for similar offer with respect to such Limited Condition Testing Transaction is terminated without the consummation thereof or expires without such Testing Transaction is otherwise abandoned prior to the consummation of such Limited Condition Transactionthereof, any such financial ratio or “basket” availability tests, basket or financial metric shall be calculated on a Pro Forma Basis assuming such Limited Condition Testing Transaction (and other transactions in connection therewith the related actions and transactions) have been consummated.
(b) For purposes of determining the permissibility of any action, change, transaction or event that requires a calculation of any financial ratio, test or metric (including any incurrence of debt and the use of proceeds thereof (but without netting the cash proceeds thereof)) had been consummated. The provisions of this Section 1.09(a) shall, for the avoidance of doubt, apply in respect of the incurrence of any Incremental Facility. For the avoidance of doubt, the making of an LCT Election shall not require notice to the Administrative Agent or any other Person. For the further avoidance of doubt, in the absence of an LCT Election, unless specifically stated in this Agreement to be otherwise, all determinations of (x) compliance with any financial ratio or test (including, without limitation, Section 6.10, any First Lien Net Consolidated Total Leverage Ratio test, any Consolidated Secured Net Leverage Ratio test, any Total Net Leverage Ratio test, any Interest Fixed Charge Coverage Ratio test, and/or any other financial ratio test or test) and/or any cap expressed as a percentage the amount of Consolidated EBITDA or any other financial metricInterest Expense, Consolidated EBITDA, Fixed Charges, Consolidated Net Income (y) including for purposes of the accuracy of any representation and warranties, or any requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of DefaultCNI Growth Amount) or (z) any availability Consolidated Total Assets), such financial ratio, test under any “baskets” shall, in each case, or metric shall be made as of the applicable date of the consummation of the Specified Transaction or calculated at the time the applicable such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may bebe (or, in each case, such other time as is applicable thereto pursuant to clause (a) above), and no Default or Event of Default shall occur be deemed to have occurred solely as a result of a subsequent change in such financial ratio, test or metric. In furtherance of and without limiting the foregoing, if, in connection with any such action, change, transaction or event, any financial ratio, test or metric was calculated by Parent in good faith on the basis of the financial statements or financial information available to Parent at the time such action was taken, such change was made, such transaction was consummated or such event occurred, as the case may be (or, in each case, such other time as is applicable thereto pursuant to clause (a) above), and on such basis such action, change, transaction or event was permitted by this Indenture (or otherwise did not result in a Default or Event of Default), then such action, change, transaction or event (and the taking, making, consummation or occurrence thereof) shall continue to be permitted (and shall not result or constitute a Default or Event of Default) even if any such financial ratio statements or testfinancial information are subsequently restated, capmodified or adjusted (it being understood that nothing in this sentence shall affect whether or not such restatement, financial metric, modification or “basket” availability occurring after such timeadjustment itself constitutes a Default or Event of Default).
(bc) Notwithstanding anything to the contrary hereinin this Indenture, with respect to any amounts amount incurred or transactions transaction entered into (or consummated) in reliance on a provision of this Agreement Indenture that does not require compliance with a financial ratio or test (includingincluding any Consolidated Secured Leverage Ratio, without limitation, Section 6.10, any First Lien Net Consolidated Total Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest or Fixed Charge Coverage Ratio testRatio) (any such amountsamount, the “Fixed AmountsAmount”) substantially concurrently (or as part of a series of related transactions) with any amounts amount incurred or transactions transaction entered into (or consummated) in reliance on a provision of this Agreement Indenture that requires compliance with a financial ratio or test (includingincluding any Consolidated Secured Leverage Ratio, without limitation, Section 6.10, any First Lien Net Consolidated Total Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest or Fixed Charge Coverage Ratio testRatio) (any such amountsamount, the an “Incurrence-Based AmountsAmount”), it is understood and agreed that any Fixed Amount (i) even if part of the Fixed Amounts (and same transaction or, in the case of Indebtedness, the same tranche, as any cash proceeds thereof and any concurrent borrowing under a revolving facility, including a Borrowing consisting of RC Facility Loans or any other revolving facilityIncurrence-Based Amount) shall be disregarded, and disregarded in the incurrence calculation of the financial ratio applicable to the Incurrence-Based Amount shall be calculated, first without giving effect to any Fixed Amount, but giving full pro forma effect to any increase in the amount of Consolidated EBITDA or Consolidated Total Assets (including the Unrestricted Cash Amount (other than with respect to the netting of the Cash proceeds of Indebtedness)) resulting from the applicable transaction consummated in reliance on, or with the use of proceeds of, the Fixed Amounts. Parent may elect, in its sole discretion, that any such amounts incurred or transactions entered into (or consummated) be incurred or entered into (or consummated), in whole or in part, in reliance on one or more of any Fixed Amounts or Incurrence-Based Amounts; provided that unless Parent elects otherwise, each such amount incurred or transaction entered into (or consummated) will be deemed incurred, entered into or consummated first under any Incurrence-Based Amount to the maximum extent permitted thereunder. In connection with the calculation of any financial ratio applicable to any incurrence or assumption of Indebtedness in reliance on any Incurrence-Based Amount, such calculation shall be made on a Pro Forma Basis for the incurrence of such Fixed Amount Indebtedness (including any acquisition consummated concurrently therewith and any other application of the proceeds thereof), but without netting the Cash proceeds of such Indebtedness, and, at the election of Parent, assuming a full drawing of any undrawn committed amounts of such Indebtedness.
(d) Any Indebtedness, Lien, Restricted Payment, Restricted Debt Payment, Burdensome Agreement, Investment, Disposition or Affiliate Transaction need not be permitted solely by reference to one clause or subclause of Sections 4.07, 4.08, 4.09, 4.10, 4.11 or 4.12 respectively (or one clause or subclause of any related definitions, including the definition of “Asset Sale”, the definition of “Permitted Investments” and the definition of “Permitted Liens”), but may instead be permitted in part under any combination of clauses or subclauses of such covenant (or such related definitions), all as classified or reclassified by Parent in its sole discretion at any time and from time to time, and shall constitute a usage of any availability under such clause or subclause (or such related definitions) only to the extent so classified or reclassified thereto. In addition, for purposes of determining compliance at any time with Sections 4.07, 4.09 and 4.12 (and for purposes of any related definitions, including the definition of “Asset Sale”, the definition of “Permitted Investments” and the definition of “Permitted Liens”), Parent may, at any time and from time to time in its sole discretion, reclassify (or deem such reclassification to have occurred automatically), any Indebtedness, Lien, Restricted Payment, Restricted Debt Payment or Investment (or a portion thereof), as applicable, previously incurred, made or otherwise undertaken under any basket or prong other than a “ratio-based” basket or prong as having been incurred, made or otherwise undertaken under any applicable “ratio-based” basket or prong set forth in such covenant (or such related definitions) if such item (or such portion thereof) would, using the figures as of the end of or for any Test Period ended after the date of such incurrence, making or undertaking, be permitted by the applicable “ratio-based” basket or prong. For the avoidance of doubt, any amount so classified or reclassified to any applicable “ratio-based” basket or prong shall be disregarded, and shall be deemed not to be outstanding, for purposes of determining availability under any other applicable exception in such covenant or related definitions that does not require compliance with a ratio. In addition, in the case of any clause or subclause (or related definitions) of Sections 4.09 or 4.12, that requires a calculation of any such financial ratio or test, to the extent the committed amount of any Indebtedness has been tested, such committed amount may, at the election of Parent, thereafter be borrowed and, in the case of commitments of a revolving nature, reborrowed in whole or in part, from time to time, without any further testing under Sections 4.09 or 4.12.
(e) For purposes of determining compliance with this Indenture, (i) the outstanding principal amount of any Indebtedness issued at a price that is less than the principal amount thereof shall be equal, as of any date of determination, to the principal amount thereof that would appear on a consolidated balance sheet of Parent as of such date prepared in accordance with GAAP and (ii) the accrual of interest, fees or premium, the accretion of accreted value, the amortization of original issue discount, the payment of interest, fees or premiums in the form of additional Indebtedness or any increase in the amount of Indebtedness outstanding solely as a result of any fluctuation in the exchange rate of any applicable currency shall not be deemed to be an incurrence of Indebtedness and, to the Fixed Amount extent secured, shall not be deemed to result in an increase of the obligations so secured or to be a grant of a Lien securing any such obligation.
(f) The amount of any Investment shall be the original cost (in the case of any cost other than in the form of Cash and Cash Equivalents, determined at the fair market value thereof) of such Investment, plus the original cost of any addition thereto that otherwise constitutes an Investment, without any adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respect thereto, but giving effect to any Returns in respect of such Investment; provided that the amount of any Investment in the form of a guarantee of Indebtedness shall be determined in accordance with the definition of the term “guarantee.”
(g) Except as may be provided in this Indenture, Parent will be responsible for monitoring and making all calculations called for under this Indenture and the Notes. Without limiting the foregoing, the Trustee shall not be responsible, or have any liability, for the calculation of any basket or ratio under this Indenture or compliance with any provision of this Indenture in connection with any Testing Transaction or any Testing Election.
(h) Any financial ratios required to be maintained by Parent pursuant to this Indenture (or required to be satisfied in order for a specific action to be permitted by this Indenture) shall be calculated thereafter.
(c) Notwithstanding anything by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed in this Indenture and rounding the result up or down to the contrary herein, for purposes of the covenants described in Article VI, nearest number (with a rounding up if any transaction or action would be permitted pursuant to one or more provisions described therein, the Borrower may divide and classify such transaction or action within any covenant in any manner that complies with the covenants set forth therein, and may later divide and reclassify any such transaction or action so long as the transaction or action (as so divided and/or reclassified) would be permitted to be made in reliance on the applicable exception as of the date of such reclassification; provided that if any financial ratio or test governing any applicable Incurrence-Based Amount would be satisfied in any subsequent period following the utilization of any Fixed Amount, such reclassification shall be deemed to have automatically occurred if not elected by the Borrowerthere is no nearest number).
Appears in 1 contract
Samples: Indenture (Amentum Holdings, Inc.)
Certain Calculations and Tests. (ad) Notwithstanding anything in this Agreement or any Loan Credit Document to the contrary, for purposes of (i) determining compliance with any provision in this Agreement or any Loan Credit Document that requires the calculation of any financial ratio or test (including, without limitation, Section 6.10, any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, Total Net Leverage Ratio test, any Interest Coverage Ratio test, and/or any other financial ratio or test), (ii) determining compliance with representations and warranties or the requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (iii) testing any cap measured as a percentage of Consolidated EBITDA or any other cap, financial metric or by reference to the Available Amount, or any other availability of a “basket” or exception set forth in this Agreement, in each case, in connection with a Limited Condition Transaction, the date of determination, at the election of the any Borrower (the such Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), will be deemed to be be: (1) in the case of any acquisition or other Investment, Disposition, incurrence of Indebtedness or any transaction related to the foregoing, in each case not prohibited hereunder, at the time of (or on the basis of the financial statements for the most recently ended Test Period measurement period at the time of) either (x) the execution of the definitive acquisition agreements or other binding contracts or agreements, or the establishment of a commitment, as applicable, with respect to such acquisition, Investment, Disposition, Indebtedness Investment or related transaction (or, solely in connection with an acquisition to which the United Kingdom City Code on Takeovers and Mergers applies, the date on which a “Rule 2.7 Announcement” of a firm intention to make an offer or similar announcement or determination in another jurisdiction subject to laws similar to the City Code in respect of such target company made in compliance with the City Code or similar laws or practices in other jurisdictions (a “Public Offer”)) or (y) the consummation of such acquisition, Investment, Disposition, incurrence of Indebtedness acquisition or Investment or related transaction, ; and (2) in the case of any Restricted Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period measurement period at the time of) (x) the declaration of such Restricted Payment or (y) the making of such Restricted Payment and (3) in the case of any Restricted Debt Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Debt Payment or (y) the making of such Restricted Debt Payment (the applicable date pursuant to clause (1), (2) or (32) above, as applicable, the “LCT Test Date”), and if, after such ratios and other provisions are measured on a Pro Forma Basis (disregarding for the purposes of such pro forma calculation any Borrowing under the RC Facility or any other revolving facility) after giving effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) and, at the election of the any Borrower, any other acquisition or similar Investment, Investment or Restricted Payment, Restricted Debt Payment or Disposition that has not been consummated but with respect to which the such Borrower has elected to test any applicable condition prior to the date of consummation in accordance with this Section 1.09(a1.8(a), as if they had occurred at the beginning of the most recently completed Test Period measurement period ending prior to the LCT Test Date, the such Borrower could have taken such action on the relevant LCT Test Date in compliance with such ratios, representation, warranty, absence of Default or Event of Default or “basket”, such ratio, representation, warranty, absence of Default or Event of Default or “basket” shall be deemed to have been complied with. For the avoidance of doubt, if the a Borrower has made an LCT Election and (x) any of the ratios or “baskets” for which compliance was determined or tested as of the LCT Test Date are exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of fluctuations in any such ratio or “basket” (including due to fluctuations of the EBITDA or total assets of the target of any Limited Condition Transaction) at or prior to the consummation of the relevant Limited Condition Transaction, such “baskets” or ratios and other provisions will be deemed not to have been exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction is permitted hereunder (provided, for the avoidance of doubt, that the such Borrower or any other Group Member Credit Party or Restricted Subsidiary may rely upon any improvement in any such ratio or “basket” availability) and (y) in connection with any subsequent calculation of any ratio or “basket” availability on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement or Public Offer for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or “basket” availability shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of debt and the use of proceeds thereof (but without netting the cash proceeds thereof)) had been consummated. The provisions of this Section 1.09(a1.8(a) shall, for the avoidance of doubt, apply in respect of the incurrence of any Incremental FacilityRevolving Loans. For the avoidance of doubt, the making of an LCT Election shall not require notice to the Administrative Agent or any other Person. For the further avoidance of doubt, in the absence of an LCT Election, unless specifically stated in this Agreement to be otherwise, all determinations of (x) compliance with any financial ratio or test (including, without limitation, Section 6.10, any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, any Total Net Leverage Ratio test, any Interest Coverage Ratio test, and/or any other financial ratio or test) and/or any cap expressed as a percentage of Consolidated EBITDA or any other financial metric, (y) the accuracy of any representation and warranties, or any requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (z) any availability test under any “baskets” shall, in each case, be made as of the applicable date of the consummation of the Specified Transaction or the time the applicable action is taken, change is made, transaction is consummated or event occurs, as the case may be, and no Default or Event of Default shall occur solely as a result of a change in any such financial ratio or test, cap, financial metric, or “basket” availability occurring after such time
(b) 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 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Fixed Amounts”) substantially concurrently (or as part of a series of related transactions) 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 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that (i) the Fixed Amounts (and any cash proceeds thereof and any concurrent borrowing under a revolving facility, including a Borrowing consisting of RC Facility Loans or any other revolving facility) shall be disregarded, and the incurrence of the Incurrence-Based Amount shall be calculated, first without giving effect to any Fixed Amount, but giving full pro forma effect to the use of proceeds of such Fixed Amount and (ii) the incurrence of the Fixed Amount shall be calculated thereafter.
(c) Notwithstanding anything to the contrary herein, for purposes of the covenants described in Article VI, if any transaction or action would be permitted pursuant to one or more provisions described therein, the Borrower may divide and classify such transaction or action within any covenant in any manner that complies with the covenants set forth therein, and may later divide and reclassify any such transaction or action so long as the transaction or action (as so divided and/or reclassified) would be permitted to be made in reliance on the applicable exception as of the date of such reclassification; provided that if any financial ratio or test governing any applicable Incurrence-Based Amount would be satisfied in any subsequent period following the utilization of any Fixed Amount, such reclassification shall be deemed to have automatically occurred if not elected by the Borrower.
Appears in 1 contract
Certain Calculations and Tests. (a) Notwithstanding anything to the contrary herein, but subject to Sections 1.6 (b) and (c), all financial ratios and tests (including the Leverage Ratio, the Interest Coverage Ratio and the amount of Consolidated EBITDA) contained in this Agreement or that are calculated with respect to any Loan Document Test Period shall be calculated with respect to such Test Period on a Pro Forma basis.
(b) Notwithstanding anything to the contrarycontrary herein (including in connection with any calculation made on a Pro Forma basis), for purposes to the extent that the terms of this Agreement require (i) determining compliance with any provision in this Agreement or any Loan Document that requires the calculation of any financial ratio or test (including, without limitation, Section 6.107.01, Section 7.02, any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, Total Net Leverage Ratio test, test and/or any Interest Coverage Ratio test, ) and/or any other financial ratio cap expressed as a percentage of Consolidated EBITDA or test), (ii) determining compliance with representations and warranties or the requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (iii) testing any cap measured the making of representations and warranties by each Loan Party as a percentage of Consolidated EBITDA or any other financial metric or by reference to the Available Amount, or any other availability of a “basket” or exception set forth in this Agreement, in each case, the Loan Documents as conditions to the assumption or incurrence of Indebtedness in connection with a Limited Condition Transactionan acquisition or similar investment, the date determination of determinationwhether the relevant condition is satisfied may be made, at the election (any such election, a “Testing Election”) of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), will be deemed to be (1) in the case of any acquisition or other Investment, Disposition, incurrence of Indebtedness or any transaction related to the foregoing, in each case not prohibited hereunder, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) either (x) the execution of the definitive acquisition agreements or other binding contracts or agreements, or the establishment of a commitment, as applicable, agreement with respect to such acquisition, Investment, Disposition, Indebtedness acquisition or related transaction (or, solely in connection with an acquisition to which the United Kingdom City Code on Takeovers and Mergers applies, the date on which a “Rule 2.7 Announcement” of a firm intention to make an offer or similar announcement or determination in another jurisdiction subject to laws similar to the City Code in respect of such target company made in compliance with the City Code or similar laws or practices in other jurisdictions (a “Public Offer”)) investment or (y) the consummation of such acquisition, Investment, Disposition, incurrence of Indebtedness acquisition or related transaction, (2) in the case of any Restricted Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) the declaration of such Restricted Payment or (y) the making of such Restricted Payment and (3) in the case of any Restricted Debt Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Debt Payment or (y) the making of such Restricted Debt Payment (the applicable date pursuant to clause (1), (2) or (3) above, as applicable, the “LCT Test Date”), and if, after such ratios and other provisions are measured on a Pro Forma Basis (disregarding for the purposes of such pro forma calculation any Borrowing under the RC Facility or any other revolving facility) investment after giving effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) and, at the election of the Borrower, any other relevant acquisition or similar Investment, Restricted Payment, Restricted Debt Payment or Disposition that has not been consummated but with respect to which the Borrower has elected to test any applicable condition prior to the date of consummation in accordance with this Section 1.09(a), as if they had occurred at the beginning of the most recently completed Test Period ending prior to the LCT Test Date, the Borrower could have taken such action on the relevant LCT Test Date in compliance with such ratios, representation, warranty, absence of Default or Event of Default or “basket”, such ratio, representation, warranty, absence of Default or Event of Default or “basket” shall be deemed to have been complied with. For the avoidance of doubt, if the Borrower has made an LCT Election and (x) any of the ratios or “baskets” for which compliance was determined or tested as of the LCT Test Date are exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of fluctuations in any such ratio or “basket” (including due to fluctuations of the target of any Limited Condition Transaction) at or prior to the consummation of the relevant Limited Condition Transaction, such “baskets” or ratios and other provisions will be deemed not to have been exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction is permitted hereunder (provided, for the avoidance of doubt, that the Borrower or any other Group Member may rely upon any improvement in any such ratio or “basket” availability) and (y) in connection with any subsequent calculation of any ratio or “basket” availability on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement or Public Offer for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or “basket” availability shall be calculated investment on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith basis.
(including any incurrence c) For purposes of debt and determining the use of proceeds thereof (but without netting the cash proceeds thereof)) had been consummated. The provisions of this Section 1.09(a) shall, for the avoidance of doubt, apply in respect of the incurrence permissibility of any Incremental Facility. For the avoidance action, change, transaction or event that requires a calculation of doubt, the making of an LCT Election shall not require notice to the Administrative Agent or any other Person. For the further avoidance of doubt, in the absence of an LCT Election, unless specifically stated in this Agreement to be otherwise, all determinations of (x) compliance with any financial ratio or test (including, without limitation, Section 6.107.01, Section 7.02, any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, any Total Net Leverage Ratio test, any Interest Coverage Ratio test, and/or any other the amount of Consolidated EBITDA), such financial ratio or test) and/or any cap expressed as a percentage of Consolidated EBITDA or any other financial metric, (y) the accuracy of any representation and warranties, or any requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (z) any availability test under any “baskets” shall, in each case, shall be made as of the applicable date of the consummation of the Specified Transaction or calculated at the time the applicable such action is takentaken (subject to clause (b) 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 occur be deemed to have occurred solely as a result of a change in any such financial ratio or test, cap, financial metric, or “basket” availability test occurring after the time such time
(b) Notwithstanding anything to the contrary hereinaction is taken, 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 (includingsuch change is made, without limitation, Section 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Fixed Amounts”) substantially concurrently (or as part of a series of related transactions) 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 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that (i) the Fixed Amounts (and any cash proceeds thereof and any concurrent borrowing under a revolving facility, including a Borrowing consisting of RC Facility Loans or any other revolving facility) shall be disregarded, and the incurrence of the Incurrence-Based Amount shall be calculated, first without giving effect to any Fixed Amount, but giving full pro forma effect to the use of proceeds of such Fixed Amount and (ii) the incurrence of the Fixed Amount shall be calculated thereafter.
(c) Notwithstanding anything to the contrary herein, for purposes of the covenants described in Article VI, if any transaction or action would be permitted pursuant to one or more provisions described therein, the Borrower may divide and classify such transaction is consummated or action within any covenant in any manner that complies with the covenants set forth thereinsuch event occurs, and may later divide and reclassify any such transaction or action so long as the transaction or action (as so divided and/or reclassified) would be permitted to be made in reliance on the applicable exception as of the date of such reclassification; provided that if any financial ratio or test governing any applicable Incurrence-Based Amount would be satisfied in any subsequent period following the utilization of any Fixed Amount, such reclassification shall be deemed to have automatically occurred if not elected by the Borrowercase may be.
Appears in 1 contract
Samples: Credit Agreement (IHS Markit Ltd.)
Certain Calculations and Tests. (a) Notwithstanding anything in to the contrary herein, to the extent that the terms of this Agreement or any Loan Document to the contrary, for purposes of require (i) determining compliance with any provision in this Agreement or any Loan Document that requires the calculation of any financial ratio or test (including, without limitation, Section 6.106.10(a), any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, test or any Total Net Leverage Ratio test, any Interest Coverage Ratio test, ) and/or any other financial ratio cap expressed as a percentage of Consolidated Adjusted EBITDA or test)Consolidated Total Assets, (ii) determining compliance with representations and warranties or the requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or ), (iii) testing the making or accuracy of any representation and/or warranty or (iv) compliance with availability under any basket or cap measured (including any basket or cap expressed as a percentage of Consolidated Adjusted EBITDA or any other financial metric or by reference to the Available Amount, or any other availability of a “basket” or exception set forth in this AgreementConsolidated Total Assets), in each case, a condition to (A) the consummation of any transaction in connection with a Limited Condition Transactionany acquisition or similar Investment (including the assumption or incurrence of Indebtedness), (B) the making of any Restricted Payment and/or (C) the making of any Restricted Debt Payment, the date determination of determinationwhether the relevant condition is satisfied may be made, at the election of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), will be deemed to be (1) in the case of any acquisition or other Investmentsimilar Investment (including with respect to any Indebtedness contemplated, Disposition, incurrence of Indebtedness assumed or any transaction related to the foregoing, incurred in each case not prohibited hereunderconnection therewith), at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) either (x) the execution of the definitive acquisition agreements or other binding contracts or agreements, or the establishment of a commitment, as applicable, agreement with respect to such acquisition, acquisition or Investment, Disposition, Indebtedness or related transaction (or, solely y) in connection with an acquisition to which the United Kingdom City Code on Takeovers or Takeover and Mergers (or any comparable Requirement of Law) applies, the date on which a “Rule 2.7 Announcementannouncement” of a firm intention to make an offer or similar announcement or determination in another jurisdiction subject to laws similar to the City Code in respect of such the target company made in compliance with the City Code of an acquisition (or similar laws or practices in other jurisdictions (a “Public Offer”)equivalent notice under comparable Requirements of Law) or (yz) the consummation of such acquisition, acquisition or Investment, Disposition, incurrence of Indebtedness or related transaction, (2) in the case of any Restricted PaymentPayment (including with respect to any Indebtedness contemplated or incurred in connection therewith), at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) either (x) the declaration of such Restricted Payment or (y) the making of such Restricted Payment and (3) in the case of any Restricted Debt PaymentPayment (including with respect to any Indebtedness contemplated or incurred in connection therewith), at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) either (x) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Debt Payment or (y) the making of such Restricted Debt Payment (the applicable date pursuant to clause (1)Payment, (2) or (3) above, as applicable, the “LCT Test Date”), and ifin each case, after such ratios and other provisions are measured giving effect, on a Pro Forma Basis Basis, to (disregarding for I) the purposes of such pro forma calculation any Borrowing under the RC Facility or any other revolving facility) after giving effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) andrelevant acquisition, at the election of the Borrower, any other acquisition or similar Investment, Restricted Payment, Restricted Debt Payment and/or any related Indebtedness (including the intended use of proceeds thereof) and (II) to the extent definitive documents in respect thereof have been executed, the Restricted Payment has been declared or Disposition that has not been consummated but delivery of notice with respect to a Restricted Debt Payment has been delivered (which definitive documents, declaration or notice has not terminated or expired without the consummation thereof), any other Subject Transaction that the Borrower has elected to test any applicable condition prior to the date of consummation treat in accordance with this Section 1.09(aclause (a), as if they had occurred at the beginning of the most recently completed Test Period ending prior to the LCT Test Date, the Borrower could have taken such action on the relevant LCT Test Date in compliance with such ratios, representation, warranty, absence of Default or Event of Default or “basket”, such ratio, representation, warranty, absence of Default or Event of Default or “basket” shall be deemed to have been complied with. .
(b) For the avoidance of doubt, if the Borrower has made an LCT Election and (x) any of the ratios or “baskets” for which compliance was determined or tested as of the LCT Test Date are exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of fluctuations in any such ratio or “basket” (including due to fluctuations of the target of any Limited Condition Transaction) at or prior to the consummation of the relevant Limited Condition Transaction, such “baskets” or ratios and other provisions will be deemed not to have been exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction is permitted hereunder (providedpermissibility of any action, for the avoidance of doubtchange, transaction or event that the Borrower or any other Group Member may rely upon any improvement in any such ratio or “basket” availability) and (y) in connection with any subsequent requires a calculation of any ratio or “basket” availability on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement or Public Offer for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or “basket” availability shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of debt and the use of proceeds thereof (but without netting the cash proceeds thereof)) had been consummated. The provisions of this Section 1.09(a) shall, for the avoidance of doubt, apply in respect of the incurrence of any Incremental Facility. For the avoidance of doubt, the making of an LCT Election shall not require notice to the Administrative Agent or any other Person. For the further avoidance of doubt, in the absence of an LCT Election, unless specifically stated in this Agreement to be otherwise, all determinations of (x) compliance with any financial ratio or test (including, without limitation, including Section 6.106.10(a), any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, any Total Net Leverage Ratio testtest and/or the amount of Consolidated Adjusted EBITDA or Consolidated Total Assets), any Interest Coverage Ratio test, and/or any other such financial ratio or testtest shall be calculated (subject to clause (a) and/or any cap expressed as a percentage of Consolidated EBITDA or any other financial metric, (yabove) the accuracy of any representation and warranties, or any requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (z) any availability test under any “baskets” shall, in each case, be made as of the applicable date of the consummation of the Specified Transaction or at the time the applicable such action is taken, 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 occur be deemed to have occurred solely as a result of a change in any such financial ratio or test, cap, financial metric, test or “basket” availability amount occurring after such timecalculation, or after the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be.
(bc) 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 6.10, including any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Total Net Leverage Ratio test) (any such amountsamount, including any such amount drawn or deemed to have been drawn under any revolving credit facility and, for the avoidance of doubt, any amount that is expressed as a percentage of Consolidated Adjusted EBITDA or Consolidated Total Assets, a “Fixed AmountsAmount”) substantially concurrently (or as part of a series of related transactions) 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, including Section 6.106.10(a), any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Total Net Leverage Ratio test) (any such amountsamount, the an “Incurrence-Based AmountsAmount”), it is understood and agreed that (i) the any Fixed Amounts (and any cash proceeds thereof and any concurrent borrowing under a revolving facility, including a Borrowing consisting of RC Facility Loans or any other revolving facility) Amount shall be disregarded, and disregarded in the incurrence calculation of the financial ratio or test applicable to the relevant Incurrence-Based Amount shall be calculated, first without giving effect to any Fixed Amount, but giving full pro forma effect to the use of proceeds of such Fixed Amount and (ii) except as provided in the incurrence preceding clause (i), pro forma effect shall be given to the entire transaction. The Borrower may elect that any amount incurred or transaction entered into (or consummated) in reliance on one or more of the any Incurrence-Based Amount or any Fixed Amount in its sole discretion; provided, that unless the Borrower elects otherwise and except as set forth in the definition of “Incremental Cap”, each such amount or transaction shall be calculated thereafterdeemed incurred, entered into or consummated first under any Incurrence-Based Amount to the maximum extent permitted thereunder.
(cd) Notwithstanding anything The principal amount of any non-interest bearing Indebtedness or other discount security constituting Indebtedness at any date shall be the principal amount thereof that would be shown on a balance sheet of the Borrower dated such date prepared in accordance with GAAP.
(e) 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 contrary hereincreation, incurrence, assumption, or the permission or sufferance to exist of a Lien for purposes of the covenants described in Article VI, if Section 6.02.
(f) With respect to any transaction or action would be permitted pursuant to one or more provisions described therein, the Borrower may divide and classify such transaction or action within any covenant in any manner pro forma calculation that complies with the covenants set forth therein, and may later divide and reclassify any such transaction or action so long as the transaction or action (as so divided and/or reclassified) would be permitted is required to be made in connection with any acquisition or similar Investment in respect of which financial statements for the applicable target are not available for the same Test Period for which financial statements of the Borrower are available, the Borrower shall make the relevant calculation on the basis of the relevant available financial statements (even if for differing periods) or such other commercially reasonable basis as the Borrower may elect.
(g) In connection with the implementation or assumption of any revolving commitment and/or any delayed draw commitment (in each case, other than any such commitment implemented pursuant to Section 2.22) in reliance on any Incurrence-Based Amount, the applicable exception Borrower may, in its sole discretion elect to, by written notice to the Administrative Agent (a “Specified Commitment Notice”), either (a) treat all or any portion of such revolving commitment and/or delayed draw commitment as of having been fully drawn on the date of implementation or assumption (such reclassification; provided that if commitment (or portion thereof), a “Specified Commitment”), in which case (i) the Borrower shall not be required to comply with any financial ratio or test governing in connection with any applicable Incurrence-Based Amount would be satisfied in any subsequent period following drawing thereunder after the utilization date of any Fixed Amountincurrence or assumption and (ii) other than for purposes of (A) the Applicable Rate, (B) the Commitment Fee Rate and/or (C) actual compliance with Section 6.10(a), the amount of such reclassification Specified Commitment shall be deemed to have automatically occurred been an actual incurrence of Indebtedness thereunder on the date of implementation or assumption for purposes of calculating any Incurrence-Based Amount or (b) test the permissibility of all or any portion of any drawing under such revolving commitment and/or delayed draw commitment on the date of such drawing (if not elected any), in which case, such revolving commitment and/or delayed draw commitment (or portion thereof) shall only be treated as drawn for purposes of any Incurrence-Based Amount to the extent of any actual drawing thereunder that is outstanding at the applicable time of determination. It is understood and agreed that the Borrower may, at any time in its sole discretion, (x) deliver a Specified Commitment Notice with respect to any revolving commitment and/or delayed draw commitment and/or (y) withdraw any Specified Commitment Notice with respect to all or any portion of any revolving commitment and/or delayed draw commitment and instead elect to treat such revolving commitment and/or delayed draw commitment in accordance with clause (a) or (b) of the immediately preceding sentence.
(h) Any determination of the Weighted Average Life to Maturity of any Indebtedness shall be made by the BorrowerBorrower in good faith at the time of the incurrence of such Indebtedness.
(i) It is understood and agreed that the Borrower and/or any Restricted Subsidiary may incur Indebtedness permitted under any provision of Section 6.01 to refinance Indebtedness originally incurred under the same provision of Section 6.01 while the Indebtedness being refinanced remains outstanding so long as the proceeds of the applicable refinancing Indebtedness are promptly deposited with the trustee or other applicable representative of the holders of the Indebtedness being refinanced, which proceeds will be applied to satisfy and discharge the Indebtedness being refinanced in accordance with the documentation governing such Indebtedness.
Appears in 1 contract
Certain Calculations and Tests. (a) Notwithstanding anything in to the contrary herein, to the extent that the terms of this Agreement or any Loan Document to the contrary, for purposes of require (i) determining compliance with any provision in this Agreement or any Loan Document that requires the calculation of any financial ratio or test (including, without limitation, Section 6.10, any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, test or any Total Net Leverage Ratio test, any Interest Coverage Ratio test, ) and/or any other financial ratio cap expressed as a percentage of Consolidated Adjusted EBITDA or test)Consolidated Total Assets, (ii) determining compliance with representations and warranties or the requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or ), (iii) testing the making or accuracy of any cap measured representation and/or warranty or (iv) compliance with availability under any basket (including any basket expressed as a percentage of Consolidated Adjusted EBITDA or any other financial metric or by reference to the Available Amount, or any other availability of a “basket” or exception set forth in this AgreementConsolidated Total Assets), in each case, a condition to (A) the consummation of any transaction in connection with a Limited Condition Transactionany acquisition or similar Investment (including the assumption or incurrence of Indebtedness), (B) the making of any Restricted Payment and/or (C) the making of any Restricted Debt Payment, the date determination of determinationwhether the relevant condition is satisfied may be made, at the election of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), will be deemed to be (1) in the case of any acquisition or other Investmentsimilar Investment (including with respect to any Indebtedness contemplated, Disposition, incurrence of Indebtedness assumed or any transaction related to the foregoing, incurred in each case not prohibited hereunderconnection therewith), at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) either (x) the execution of the definitive acquisition agreements or other binding contracts or agreements, or the establishment of a commitment, as applicable, agreement with respect to such acquisition, acquisition or Investment, Disposition, Indebtedness or related transaction (or, solely y) in connection with an acquisition to which the United Kingdom City Code on Takeovers or Takeover and Mergers (or any comparable Requirement of Law) applies, the date on which a “Rule 2.7 Announcementannouncement” of a firm intention to make an offer or similar announcement or determination in another jurisdiction subject to laws similar to the City Code in respect of such the target company made in compliance with the City Code of an acquisition (or similar laws or practices in other jurisdictions (a “Public Offer”)equivalent notice under comparable Requirements of Law) or (yz) the consummation of such acquisition, acquisition or Investment, Disposition, incurrence of Indebtedness or related transaction, (2) in the case of any Restricted PaymentPayment (including with respect to any Indebtedness contemplated or incurred in connection therewith), at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) the declaration of such Restricted Payment or (y) the making of such Restricted Payment and (3) in the case of any Restricted Debt PaymentPayment (including with respect to any Indebtedness contemplated or incurred in connection therewith), at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Debt Payment or (y) the making of such Restricted Debt Payment (the applicable date pursuant to clause (1)Payment, (2) or (3) above, as applicable, the “LCT Test Date”), and ifin each case, after such ratios and other provisions are measured giving effect, on a Pro Forma Basis Basis, to (disregarding for I) the purposes of such pro forma calculation any Borrowing under the RC Facility or any other revolving facility) after giving effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) andrelevant acquisition, at the election of the Borrower, any other acquisition or similar Investment, Restricted Payment, Restricted Debt Payment and/or any related Indebtedness (including the intended use of proceeds thereof) and (II) to the extent definitive documents in respect thereof have been executed, the Restricted Payment has been declared or Disposition that has not been consummated but delivery of notice with respect to a Restricted Debt Payment has been given (which definitive documents, declaration or notice has not terminated or expired without the consummation thereof), any other Subject Transaction that the Borrower has elected to test any applicable condition prior to the date of consummation treat in accordance with this Section 1.09(aclause (a), as if they had occurred at the beginning of the most recently completed Test Period ending prior to the LCT Test Date, the Borrower could have taken such action on the relevant LCT Test Date in compliance with such ratios, representation, warranty, absence of Default or Event of Default or “basket”, such ratio, representation, warranty, absence of Default or Event of Default or “basket” shall be deemed to have been complied with. .
(b) For the avoidance of doubt, if the Borrower has made an LCT Election and (x) any of the ratios or “baskets” for which compliance was determined or tested as of the LCT Test Date are exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of fluctuations in any such ratio or “basket” (including due to fluctuations of the target of any Limited Condition Transaction) at or prior to the consummation of the relevant Limited Condition Transaction, such “baskets” or ratios and other provisions will be deemed not to have been exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction is permitted hereunder (providedpermissibility of any action, for the avoidance of doubtchange, transaction or event that the Borrower or any other Group Member may rely upon any improvement in any such ratio or “basket” availability) and (y) in connection with any subsequent requires a calculation of any ratio or “basket” availability on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement or Public Offer for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or “basket” availability shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of debt and the use of proceeds thereof (but without netting the cash proceeds thereof)) had been consummated. The provisions of this Section 1.09(a) shall, for the avoidance of doubt, apply in respect of the incurrence of any Incremental Facility. For the avoidance of doubt, the making of an LCT Election shall not require notice to the Administrative Agent or any other Person. For the further avoidance of doubt, in the absence of an LCT Election, unless specifically stated in this Agreement to be otherwise, all determinations of (x) compliance with any financial ratio or test (including, without limitation, Section 6.10, any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, test or any Total Net Leverage Ratio testtest and/or the amount of Consolidated Adjusted EBITDA or Consolidated Total Assets), any Interest Coverage Ratio test, and/or any other such financial ratio or test) and/or any cap expressed as a percentage of Consolidated EBITDA or any other financial metric, (y) the accuracy of any representation and warranties, or any requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (z) any availability test under any “baskets” shall, in each case, shall be made as of the applicable date of the consummation of the Specified Transaction or calculated at the time the applicable such action is takentaken (subject to clause (a) 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 occur be deemed to have occurred solely as a result of a change in any such financial ratio or test, cap, financial metric, test or “basket” availability amount occurring after such timecalculation, or after the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be.
(bc) 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 (including Section 6.01(x), as it relates to the incurrence of any “fixed” or similar amount available under any First Lien Facility) that does not require compliance with a financial ratio or test (including, without limitation, Section 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Total Net Leverage Ratio test) (any such amountsamount, including any such amount drawn or deemed to have been drawn under any revolving credit facility and, for the avoidance of doubt, any amount that is expressed as a percentage of Consolidated Adjusted EBITDA or Consolidated Total Assets, a “Fixed AmountsAmount”) substantially concurrently (or as part of a series of related transactions) with any amounts amount incurred or transactions transaction entered into (or consummated) in reliance on a provision of this Agreement (including Section 6.01(x), as it relates to the incurrence of any “incurrence-based” or similar amount available under any First Lien Facility) that requires compliance with a financial ratio or test (including, without limitation, Section 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Total Net Leverage Ratio test) (any such amountsamount, the an “Incurrence-Based AmountsAmount”), it is understood and agreed that (i) the any Fixed Amounts (and any cash proceeds thereof and any concurrent borrowing under a revolving facility, including a Borrowing consisting of RC Facility Loans or any other revolving facility) Amount shall be disregarded, and disregarded in the incurrence calculation of the financial ratio or test applicable to the relevant Incurrence-Based Amount shall be calculated, first without giving effect to any Fixed Amount, but giving full pro forma effect to the use of proceeds of such Fixed Amount and (ii) except as provided in clause (i), pro forma effect shall be given to the incurrence entire transaction. The Borrower may elect that any amount incurred or transaction entered into (or consummated) in reliance on one or more of the any Incurrence-Based Amount or any Fixed Amount in its sole discretion; provided, that unless the Borrower elects otherwise and except as set forth in the definition of “Incremental Cap”, each such amount or transaction shall be calculated thereafterdeemed incurred, entered into or consummated first under any Incurrence-Based Amount to the maximum extent permitted thereunder.
(cd) Notwithstanding anything The principal amount of any non-interest bearing Indebtedness or other discount security constituting Indebtedness at any date shall be the principal amount thereof that would be shown on a balance sheet of the Borrower dated such date prepared in accordance with GAAP.
(e) 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 contrary herein, granting of a Lien for purposes of the covenants described in Article VI, if Section 6.02.
(f) With respect to any transaction or action would be permitted pursuant to one or more provisions described therein, the Borrower may divide and classify such transaction or action within any covenant in any manner pro forma calculation that complies with the covenants set forth therein, and may later divide and reclassify any such transaction or action so long as the transaction or action (as so divided and/or reclassified) would be permitted is required to be made in connection with any acquisition or similar Investment in respect of which financial statements for the applicable target are not available for the same Test Period for which financial statements of the Borrower are available, the Borrower shall make the relevant calculation on the basis of the relevant available financial statements (even if for differing periods) or such other commercially reasonable basis as the Borrower may elect.
(g) In connection with the implementation or assumption of any revolving commitment and/or any delayed draw commitment in reliance on any Incurrence-Based Amount, the applicable exception Borrower may, in its sole discretion either (a) elect, by written notice to the Administrative Agent (a “Specified Commitment Notice”), to treat all or any portion of such revolving commitment and/or delayed draw commitment as of having been fully drawn on the date of implementation or assumption (such reclassification; provided that if commitment (or portion thereof), a “Specified Commitment”), in which case (i) the Borrower shall not be required to comply with any financial ratio or test governing in connection with any applicable Incurrence-Based Amount would be satisfied in any subsequent period following drawing thereunder after the utilization date of any Fixed Amount, incurrence or assumption and (ii) the amount of such reclassification Specified Commitment shall be deemed to have automatically occurred been an actual incurrence of Indebtedness thereunder on the date of implementation or assumption for purposes of calculating any Incurrence-Based Amount or (b) elect to test the permissibility of all or any portion of any drawing under such revolving commitment and/or delayed draw commitment on the date of such drawing (if not elected any), in which case, such revolving commitment and/or delayed draw commitment (or portion thereof) shall only be treated as drawn for purposes of any Incurrence-Based Amount to the extent of any actual drawing thereunder that is outstanding at the applicable time of determination. It is understood and agreed that the Borrower may, at any time in its sole discretion, (x) deliver a Specified Commitment Notice with respect to any revolving commitment and/or delayed draw commitment and/or (y) withdraw any Specified Commitment Notice with respect to all or any portion of any revolving commitment and/or delayed draw commitment and instead elect to treat such revolving commitment and/or delayed draw commitment in accordance with clause (b) of the immediately preceding sentence.
(h) Any determination of the Weighted Average Life to Maturity of any Indebtedness shall be made by the BorrowerBorrower in good faith at the time of the incurrence of such Indebtedness.
(i) It is understood and agreed that the Borrower and/or any Restricted Subsidiary may incur Indebtedness permitted under any provision of Section 6.01 to refinance Indebtedness originally incurred under the same provision of Section 6.01 while the Indebtedness being refinanced remains outstanding so long as the proceeds of the applicable refinancing Indebtedness are promptly deposited with the trustee or other applicable representative of the holders of the Indebtedness being refinanced, which proceeds will be applied to satisfy and discharge the Indebtedness being refinanced in accordance with the documentation governing such Indebtedness.
Appears in 1 contract
Certain Calculations and Tests. (a) 1.5.1 Notwithstanding anything in this Agreement or any Loan Document to the contrarycontrary (except as expressly set forth in the first proviso of Section 2.1.7 and the last sentence of Section 6.2), for purposes of (i) determining compliance with any provision in this Agreement or any Loan Document that requires the calculation of any financial ratio or test (including, without limitation, Section 6.10, any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, Total Net Leverage Ratio test, any Interest Coverage Ratio test, test and/or any other financial ratio or testFixed Charge Coverage Ratio), (ii) determining compliance with representations and warranties or the requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (iii) testing any cap measured expressed as a percentage of Consolidated TTM EBITDA or any other financial metric or by reference to the Available Amount, or and any other availability of a “basket” or exception set forth in this AgreementSection 10.2, in each case, case in connection with a Specified Transaction or other transaction permitted hereunder or Borrowing pursuant to Section 6.2, undertaken in connection with the consummation of a Limited Condition Transaction, the date of determinationdetermination of whether any such action is permitted hereunder, at the election of the Borrower Agent (the Borrower’s such election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), will be deemed to be (1x) in the case of any acquisition or other Investmentdate the definitive agreements for such Limited Condition Transaction are entered into (and if determined at such time, Disposition, incurrence of Indebtedness or any transaction related to the foregoing, in each case not prohibited hereundermay be recalculated, at the time of (or on the basis election of the financial statements for the most recently ended Borrower Agent, as of any Test Period at the time of) either (x) the execution of the definitive acquisition agreements or other binding contracts or agreements, or the establishment of a commitment, as applicable, with respect to such acquisition, Investment, Disposition, Indebtedness or related transaction (or, solely in connection with an acquisition to which the United Kingdom City Code on Takeovers and Mergers applies, the date on which a “Rule 2.7 Announcement” of a firm intention to make an offer or similar announcement or determination in another jurisdiction subject to laws similar ending immediately prior to the City Code in respect consummation of such target company made in compliance with the City Code or similar laws or practices in other jurisdictions (a “Public Offer”)Limited Condition Transaction) or (y) the consummation of such acquisition, Investment, Disposition, incurrence of Indebtedness or related transaction, (2) in date the case of any Restricted Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) the declaration of such Restricted Payment or (y) the making of such Restricted Payment and (3) in the case of any Restricted Debt Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) delivery of irrevocable notice (which may be conditional) notice with in respect of the prepayment, redemption, repurchase, defeasance or other payment of Debt or Equity Interests is delivered (and if determined at such time, may be recalculated, at the election of the Borrower Agent, as of any Test Period ending immediately prior to such Restricted Debt Payment or (y) the making of such Restricted Debt Payment prepayment, redemption, repurchase, defeasance or other payment or at the time of the making of such prepayment, redemption, repurchase, defeasance or other payment) (the applicable date pursuant to clause (1), (2) or (3) above, as applicable, the “LCT Test Date”), and if, after such ratios and other provisions are measured on a Pro Forma Basis (disregarding for the purposes of such giving pro forma calculation any Borrowing under the RC Facility or any other revolving facility) after giving effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness Debt and the use of proceeds thereof) and, at the election of the Borrower, any other acquisition or similar Investment, Restricted Payment, Restricted Debt Payment or Disposition that has not been consummated but with respect to which the Borrower has elected to test any applicable condition prior to the date of consummation in accordance with this Section 1.09(a), as if they had occurred at the beginning of the most recently completed Test Tests Period ending on or prior to the LCT Test Date, the Borrower Borrowers could have taken such action on the relevant LCT Test Date in compliance with such ratios, representation, warranty, absence of Default or Event of Default (or any type of Default or Event of Default) or “basket”, such ratio, representation, warranty, absence of Default or Event of Default (or “basket” any type of Default or Event of Default) shall be deemed to have been complied with. For the avoidance of doubt, if the Borrower Agent has made an LCT Election and (x) any of the ratios or “baskets” for which compliance was determined or tested as of the LCT Test Date are exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of fluctuations in any such ratio or “basket” (including due to fluctuations of resulting from the target of any Limited Condition Transaction) at or prior to the consummation of the relevant Limited Condition Transaction, such “baskets” or ratios and other provisions will not be deemed not to have been exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction is permitted hereunder (provided, for the avoidance of doubt, that the Borrower or any other Group Member may rely upon any improvement in any such ratio or “basket” availability) and (y) in connection with any subsequent calculation of any ratio or “basket” availability on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement or Public Offer for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or “basket” availability shall be calculated on a Pro Forma Basis pro forma basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of debt Debt and the use of proceeds thereof (but without netting the cash proceeds thereof)) had been consummated. The provisions of this Section 1.09(a) shall, for the avoidance of doubt, apply in respect of the incurrence of any Incremental Facility. For the avoidance of doubt, the making of an LCT Election shall not require notice to the Administrative Agent or any other Person. For the further avoidance of doubt, in the absence of an LCT Election, unless specifically stated in this Agreement to be otherwise, all determinations of (x) compliance with any financial ratio or test (including, without limitation, Section 6.10, any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, any Total Net Leverage Ratio test, any Interest test and/or Fixed Coverage Ratio test, and/or any other financial ratio or testTest) and/or any cap expressed as a percentage of Consolidated EBITDA or any other financial metricTTM EBITDA, (y) the accuracy of any representation and warranties, or any requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (z) any availability test under any “baskets” shall, in each case, shall be made as of the applicable date of the consummation of the Specified Transaction Transaction.
1.5.2 Subject to Section 1.5.1, for purposes of determining the permissibility of any action, change, transaction or event that by the terms of the Loan Documents requires a calculation of any financial ratio or test (including the Net Leverage Ratio, the Fixed Charge Coverage Ratio and the amount of EBITDA, TTM EBITDA or Consolidated Net Income), such financial ratio or test shall be calculated at the time the applicable such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be, for the applicable Test Period, and no Default or Event of Default (or any type of Default or Event of Default) shall occur be deemed to have occurred solely as a result of a change in any such financial ratio or test, cap, financial metric, or “basket” availability test occurring after the time such time
(b) Notwithstanding anything to the contrary hereinaction is taken, 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 (includingsuch change is made, without limitation, Section 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Fixed Amounts”) substantially concurrently (or as part of a series of related transactions) 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 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that (i) the Fixed Amounts (and any cash proceeds thereof and any concurrent borrowing under a revolving facility, including a Borrowing consisting of RC Facility Loans or any other revolving facility) shall be disregarded, and the incurrence of the Incurrence-Based Amount shall be calculated, first without giving effect to any Fixed Amount, but giving full pro forma effect to the use of proceeds of such Fixed Amount and (ii) the incurrence of the Fixed Amount shall be calculated thereafter.
(c) Notwithstanding anything to the contrary herein, for purposes of the covenants described in Article VI, if any transaction or action would be permitted pursuant to one or more provisions described therein, the Borrower may divide and classify such transaction is consummated or action within any covenant in any manner that complies with the covenants set forth thereinsuch event occurs, and may later divide and reclassify any such transaction or action so long as the transaction or action (as so divided and/or reclassified) would be permitted to be made in reliance on the applicable exception as of the date of such reclassification; provided that if any financial ratio or test governing any applicable Incurrence-Based Amount would be satisfied in any subsequent period following the utilization of any Fixed Amount, such reclassification shall be deemed to have automatically occurred if not elected by the Borrowercase may be.
Appears in 1 contract
Samples: First Lien Loan and Security Agreement (Duckhorn Portfolio, Inc.)
Certain Calculations and Tests. (a) Notwithstanding anything in this Agreement or any Loan Document to the contrary, for purposes of (i) determining compliance with any provision in this Agreement or any Loan Document that requires the calculation of any financial ratio or test (including, without limitation, Section 6.10, any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, Total Net Leverage Ratio testRatio, any Interest Total Net Cash Leverage Ratio, any Contract Asset Balance Coverage Ratio test, and/or or any other financial ratio or testLTV Ratio test (including as required in the definition of “Permitted Acquisition”)), (ii) determining compliance with representations and warranties or the requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) (other than in connection with any borrowing of Revolving Loans or issuance of any Letter of Credit under the Revolving Credit Facility (or Other Revolving Commitments)) or (iii) testing any cap measured expressed as a percentage of Consolidated EBITDA EBITDA, Consolidated Cash EBITDA, Liquidity or any other financial metric or by reference to the Available Amount, or Consolidated Total Assets and any other availability of a “basket” or exception set forth in this AgreementArticle VI, in each case, case in connection with a Specified Transaction or other transaction permitted hereunder, undertaken in connection with the consummation of a Limited Condition Transaction, the date of determinationdetermination of whether any such action is permitted hereunder (but not, for the avoidance of doubt, in connection with any calculation of the Financial Maintenance Covenant for the purposes of Section 6.13 only), at the election of the Borrower (the Borrower’s such election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), will be deemed to be (1) in the case of any acquisition or other Investment, Disposition, incurrence of Indebtedness or any transaction related to the foregoing, in each case not prohibited hereunder, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) either (x) the execution of date the definitive acquisition agreements for such Limited Condition Transaction are entered into or other binding contracts or agreements, or the establishment (y) in respect of a commitment, as applicable, with respect to such acquisition, Investment, Disposition, Indebtedness or related transaction (or, solely sales in connection with an acquisition to which the United Kingdom City Code on Takeovers and Mergers appliesapplies (or similar law or practice in other jurisdictions), the date on which a “Rule 2.7 Announcementannouncement” of a firm intention intends to make an offer or similar announcement or determination in another jurisdiction subject to laws similar to the United Kingdom City Code on Takeovers and Mergers in respect of such a target company made in compliance with the City Code or similar laws or practices in other jurisdictions of a Limited Condition Transaction (a “Public Offer”)) or (y) the consummation of such acquisition, Investment, Disposition, incurrence of Indebtedness or related transaction, (2) in the case of any Restricted Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) the declaration of such Restricted Payment or (y) the making of such Restricted Payment and (3) in the case of any Restricted Debt Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Debt Payment or (y) the making of such Restricted Debt Payment (the applicable date pursuant to clause (1), (2) or (3) above, as applicable, the “LCT Test Date”), and if, after such ratios and other provisions are measured on a Pro Forma Basis (disregarding for the purposes of such giving pro forma calculation any Borrowing under the RC Facility or any other revolving facility) after giving effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) and, at the election of the Borrower, any other acquisition or similar Investment, Restricted Payment, Restricted Debt Payment or Disposition that has not been consummated but with respect to which the Borrower has elected to test any applicable condition prior to the date of consummation in accordance with this Section 1.09(a), as if they had occurred at the beginning of the most recently completed Test Tests Period ending on or prior to the LCT Test Date, the Borrower could have taken such action on the relevant LCT Test Date in compliance with such ratios, representation, warranty, absence of Default or Event of Default or “basket”, such ratio, representation, warranty, absence of Default or Event of Default or “basket” shall be deemed to have been complied with. For the avoidance of doubt, if the Borrower has made an LCT Election and (x) any of the ratios or “baskets” for which compliance was determined or tested as of the LCT Test Date are exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of fluctuations in any such ratio or “basket” (including due to fluctuations of the target of any Limited Condition Transaction) at or prior to the consummation of the relevant Limited Condition Transaction, such “baskets” or ratios and other provisions will not be deemed not to have been exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction is permitted hereunder (provided, for the avoidance of doubt, that the Borrower or any other Group Member may rely upon any improvement in any such ratio or “basket” availability) and (y) in connection with any subsequent calculation of any ratio or “basket” availability on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement or Public Offer for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or “basket” availability shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of debt and the use of proceeds thereof (but without netting the cash proceeds thereof)) had been consummated. The provisions of this Section 1.09(a) shall, for the avoidance of doubt, apply in respect of the incurrence of any Incremental Facility. For the avoidance of doubt, the making of an LCT Election shall not require notice to the Administrative Agent or any other Person. For the further avoidance of doubt, in the absence of an LCT Election, unless specifically stated in this Agreement to be otherwise, all determinations of (x) compliance with any financial ratio or test (including, without limitation, Section 6.10, any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, any Total Net Leverage Ratio test, any Interest Coverage Ratio test, and/or any other financial ratio or test) and/or any cap expressed as a percentage of Consolidated EBITDA or any other financial metric, (y) the accuracy of any representation and warranties, or any requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (z) any availability test under any “baskets” shall, in each case, be made as of the applicable date of the consummation of the Specified Transaction or the time the applicable action is taken, change is made, transaction is consummated or event occurs, as the case may be, and no Default or Event of Default shall occur solely as a result of a change in any such financial ratio or test, cap, financial metric, or “basket” availability occurring after such time
(b) 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 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Fixed Amounts”) substantially concurrently (or as part of a series of related transactions) 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 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Incurrence86 US-Based Amounts”), it is understood and agreed that (i) the Fixed Amounts (and any cash proceeds thereof and any concurrent borrowing under a revolving facility, including a Borrowing consisting of RC Facility Loans or any other revolving facility) shall be disregarded, and the incurrence of the Incurrence-Based Amount shall be calculated, first without giving effect to any Fixed Amount, but giving full pro forma effect to the use of proceeds of such Fixed Amount and (ii) the incurrence of the Fixed Amount shall be calculated thereafter.
(c) Notwithstanding anything to the contrary herein, for purposes of the covenants described in Article VI, if any transaction or action would be permitted pursuant to one or more provisions described therein, the Borrower may divide and classify such transaction or action within any covenant in any manner that complies with the covenants set forth therein, and may later divide and reclassify any such transaction or action so long as the transaction or action (as so divided and/or reclassified) would be permitted to be made in reliance on the applicable exception as of the date of such reclassification; provided that if any financial ratio or test governing any applicable Incurrence-Based Amount would be satisfied in any subsequent period following the utilization of any Fixed Amount, such reclassification shall be deemed to have automatically occurred if not elected by the Borrower.DOCS\115047431.4127573765.6
Appears in 1 contract
Samples: Credit Agreement and Incremental Facility Agreement (GoHealth, Inc.)
Certain Calculations and Tests. (a) Notwithstanding anything to the contrary herein, but subject to Sections 1.06(b) and (c), all financial ratios and tests (including the Leverage Ratio, the Interest Coverage Ratio, the Aggregation Test and the amount of Consolidated EBITDA) contained in this Agreement or that are calculated with respect to any Loan Document Test Period shall be calculated with respect to such Test Period on a Pro Forma basis.
(b) Notwithstanding anything to the contrarycontrary herein (including in connection with any calculation made on a Pro Forma basis), for purposes to the extent that the terms of this Agreement require (i) determining compliance with any provision in this Agreement or any Loan Document that requires the calculation of any financial ratio or test (including, without limitation, Section 6.107.01, Section 7.02 and Section 5.09(a), any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, Total Net Leverage Ratio test, Aggregation Test and/or any Interest Coverage Ratio test, ) and/or any other financial ratio cap expressed as a percentage of Consolidated EBITDA or test), (ii) determining compliance with representations and warranties or the requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (iii) testing any cap measured the making of representations and warranties by each Loan Party as a percentage of Consolidated EBITDA or any other financial metric or by reference to the Available Amount, or any other availability of a “basket” or exception set forth in this Agreement, in each case, the Loan Documents as conditions to (A) the making of any acquisition or similar Investment or the consummation of any transaction in connection with a Limited Condition Transactiontherewith (including the assumption or incurrence of Indebtedness) and/or (B) the making of any Restricted Payment, the date determination of determinationwhether the relevant condition is satisfied may be made, at the election (any such election, a “Testing Election”) of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition TransactionRepresentative, an “LCT Election”), will be deemed to be (1) in the case of any acquisition or other similar Investment, Disposition, incurrence of Indebtedness or any transaction related to the foregoing, in each case not prohibited hereunder, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) either (x) the execution of the definitive acquisition agreements or other binding contracts or agreements, or the establishment of a commitment, as applicable, agreement with respect to such acquisition, Investment, Disposition, Indebtedness acquisition or related transaction (or, solely in connection with an acquisition to which the United Kingdom City Code on Takeovers and Mergers applies, the date on which a “Rule 2.7 Announcement” of a firm intention to make an offer or similar announcement or determination in another jurisdiction subject to laws similar to the City Code in respect of such target company made in compliance with the City Code or similar laws or practices in other jurisdictions (a “Public Offer”)) Investment or (y) the consummation of such acquisition, acquisition or Investment, Disposition, incurrence of Indebtedness or related transaction, (2) in the case of any Restricted Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) the declaration of such Restricted Payment or (y) the making of such Restricted Payment and (3) in the case of any Restricted Debt Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Debt Payment or (y) the making of such Restricted Debt Payment (the applicable date pursuant to clause (1), (2) or (3) above, as applicable, the “LCT Test Date”), and if, after such ratios and other provisions are measured on a Pro Forma Basis (disregarding for the purposes of such pro forma calculation any Borrowing under the RC Facility or any other revolving facility) after giving effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) and, at the election of the Borrower, any other relevant acquisition or similar Investment, and/or Restricted Payment, Restricted Debt Payment or Disposition that has not been consummated but with respect to which the Borrower has elected to test any applicable condition prior to the date of consummation in accordance with this Section 1.09(a), as if they had occurred at the beginning of the most recently completed Test Period ending prior to the LCT Test Date, the Borrower could have taken such action on the relevant LCT Test Date in compliance with such ratios, representation, warranty, absence of Default or Event of Default or “basket”, such ratio, representation, warranty, absence of Default or Event of Default or “basket” shall be deemed to have been complied with. For the avoidance of doubt, if the Borrower has made an LCT Election and (x) any of the ratios or “baskets” for which compliance was determined or tested as of the LCT Test Date are exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of fluctuations in any such ratio or “basket” (including due to fluctuations of the target of any Limited Condition Transaction) at or prior to the consummation of the relevant Limited Condition Transaction, such “baskets” or ratios and other provisions will be deemed not to have been exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction is permitted hereunder (provided, for the avoidance of doubt, that the Borrower or any other Group Member may rely upon any improvement in any such ratio or “basket” availability) and (y) in connection with any subsequent calculation of any ratio or “basket” availability on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement or Public Offer for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or “basket” availability shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith basis.
(including any incurrence c) For purposes of debt and determining the use of proceeds thereof (but without netting the cash proceeds thereof)) had been consummated. The provisions of this Section 1.09(a) shall, for the avoidance of doubt, apply in respect of the incurrence permissibility of any Incremental Facility. For the avoidance action, change, transaction or event that requires a calculation of doubt, the making of an LCT Election shall not require notice to the Administrative Agent or any other Person. For the further avoidance of doubt, in the absence of an LCT Election, unless specifically stated in this Agreement to be otherwise, all determinations of (x) compliance with any financial ratio or test (including, without limitation, Section 6.107.01, Section 7.02 and Section 5.09(a), any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, any Total Net Leverage Ratio test, any Interest Coverage Ratio test, any Aggregation Test and/or any other the amount of Consolidated EBITDA), such financial ratio or test) and/or any cap expressed as a percentage of Consolidated EBITDA or any other financial metric, (y) the accuracy of any representation and warranties, or any requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (z) any availability test under any “baskets” shall, in each case, shall be made as of the applicable date of the consummation of the Specified Transaction or calculated at the time the applicable such action is takentaken (subject to clause (b) 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 occur be deemed to have occurred solely as a result of a change in any such financial ratio or test, cap, financial metric, or “basket” availability test occurring after the time such time
(b) Notwithstanding anything to the contrary hereinaction is taken, 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 (includingsuch change is made, without limitation, Section 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Fixed Amounts”) substantially concurrently (or as part of a series of related transactions) 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 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that (i) the Fixed Amounts (and any cash proceeds thereof and any concurrent borrowing under a revolving facility, including a Borrowing consisting of RC Facility Loans or any other revolving facility) shall be disregarded, and the incurrence of the Incurrence-Based Amount shall be calculated, first without giving effect to any Fixed Amount, but giving full pro forma effect to the use of proceeds of such Fixed Amount and (ii) the incurrence of the Fixed Amount shall be calculated thereafter.
(c) Notwithstanding anything to the contrary herein, for purposes of the covenants described in Article VI, if any transaction or action would be permitted pursuant to one or more provisions described therein, the Borrower may divide and classify such transaction is consummated or action within any covenant in any manner that complies with the covenants set forth thereinsuch event occurs, and may later divide and reclassify any such transaction or action so long as the transaction or action (as so divided and/or reclassified) would be permitted to be made in reliance on the applicable exception as of the date of such reclassification; provided that if any financial ratio or test governing any applicable Incurrence-Based Amount would be satisfied in any subsequent period following the utilization of any Fixed Amount, such reclassification shall be deemed to have automatically occurred if not elected by the Borrowercase may be.
Appears in 1 contract
Samples: Credit Agreement (IHS Markit Ltd.)
Certain Calculations and Tests. (a) Notwithstanding anything in this Agreement or any Loan Document to the contrary, for purposes when calculating any applicable ratio or determining other compliance with this Agreement (including the determination of (i) determining compliance with any provision in of this Agreement or any Loan Document which requires that requires the calculation no Specified Event of any financial ratio or test (includingDefault, without limitation, Section 6.10, any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, Total Net Leverage Ratio test, any Interest Coverage Ratio test, and/or any other financial ratio or test), (ii) determining compliance with representations and warranties or the requirement regarding the absence of a Default or Event of Default (has occurred, is continuing or any type would result therefrom or the accuracy of Default or Event of Defaultrepresentations and warranties) or (iii) testing any cap measured as a percentage of Consolidated EBITDA or any other financial metric or by reference to the Available Amount, or any other availability of a “basket” or exception set forth in this Agreement, in each case, in connection with any action (including a Specified Transaction) undertaken in connection with the consummation of a Limited Condition Transaction, the date of determinationdetermination of such ratio and determination of compliance with this Agreement (including whether any Specified Event of Default, Default or Event of Default has occurred, is continuing or would result therefrom or the accuracy of such representations and warranties (in each case, other than in the case of clause (i) below, the Specified Representations or, at the election option of the Borrower Company, European “certain funds” provisions as reasonably agreed between the Administrative Agent and the Company consistent with European precedent of the Sponsor) or other applicable covenant shall be determined, or any default or event of default blocker shall be tested, in each case, at the option of the Company (the BorrowerCompany’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT LCA Election” and such date selected, the “LCA Test Date”), will be deemed to be (1i) in the case of any acquisition or other InvestmentInvestment (including with respect to any Indebtedness contemplated or incurred in connection therewith), Dispositioneither, incurrence at the option of Indebtedness the Company, (A) as of the date the definitive acquisition agreement or any transaction related binding letter of intent for such acquisition or other Investment is entered into (or prior to the foregoingeffectiveness of any documentation or agreement with a substantially similar effect as a binding acquisition agreement), (B) at the time that binding commitments to provide any Indebtedness contemplated or incurred in each case not prohibited hereunder, connection therewith are provided or at the time such Indebtedness is incurred or (C) at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) either (x) the execution of the definitive acquisition agreements or other binding contracts or agreements, or the establishment of a commitment, as applicable, with respect to such acquisition, Investment, Disposition, Indebtedness or related transaction (or, solely in connection with an acquisition to which the United Kingdom City Code on Takeovers and Mergers applies, the date on which a “Rule 2.7 Announcement” of a firm intention to make an offer or similar announcement or determination in another jurisdiction subject to laws similar to the City Code in respect of such target company made in compliance with the City Code or similar laws or practices in other jurisdictions (a “Public Offer”)) or (y) the consummation of such acquisition, the relevant acquisition or other Investment, Disposition, incurrence of Indebtedness or related transaction, (2ii) in the case of any Restricted PaymentPayment (including with respect to any Indebtedness contemplated or incurred in connection therewith), either, at the option of the Company, (A) at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) the declaration of such Restricted Payment Payment, (B) at the time that binding commitments to provide any Indebtedness contemplated or incurred in connection therewith are provided or at the time such Indebtedness is incurred or (yC) at the time of the making of such Restricted Payment and and/or (3iii) in the case of any Restricted Debt Paymentirrevocable Indebtedness repurchase or repayment (including with respect to any Indebtedness contemplated or incurred in connection therewith), either, at the option of the Company, (A) at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Debt Payment repurchase or repayment, (B) at the time that binding commitments to provide any debt contemplated or incurred in connection therewith are provided or at the time such Indebtedness is incurred or (yC) at the time of the making of such Restricted Debt Payment repurchase or repayment, in each case, after giving effect to the relevant transaction, any related Indebtedness (including the applicable date pursuant to clause (1), (2intended use of proceeds thereof) or (3) above, as applicable, the “LCT Test Date”), 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 (disregarding for the purposes of such pro forma calculation any Borrowing under the RC Facility or any other revolving facility) after giving effect to the such Limited Condition Transaction and the such other transactions related and specified actions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) and, at the election of the Borrower, any other acquisition or similar Investment, Restricted Payment, Restricted Debt Payment or Disposition that has not been consummated but with respect to which the Borrower has elected to test any applicable condition prior to the date of consummation in accordance with this Section 1.09(a), as if they had occurred at the beginning of the most recently completed Test Period four consecutive fiscal quarter period being used to calculate such financial ratio ending prior to the LCT LCA Test Date, the Borrower Company could have taken such action on the relevant LCT LCA Test Date in compliance with such ratios, representation, warranty, absence of Default or Event of Default or “basket”applicable ratios and provisions, such ratio, representation, warranty, absence of Default or Event of Default or “basket” applicable ratios and provisions shall be deemed to have been complied with. For the avoidance of doubt, (1) if the Borrower has made an LCT Election and (x) any of the such ratios or “baskets” for which compliance was determined or tested as of the LCT Test Date other financial test are exceeded (or, not complied with respect to the Interest Coverage Ratio, not reached) as a result of fluctuations in any such ratio or “basket” other financial measurement (including due to fluctuations in Consolidated Adjusted EBITDA of the target of any Limited Condition TransactionCompany) at or prior to the consummation of the relevant Limited Condition Transaction, such “baskets” or ratios and other provisions will nevertheless be deemed not to have been exceeded (or, complied with respect to the Interest Coverage Ratio, not reached) as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction is permitted hereunder (providedhereunder; provided that if such ratios or other financial test improve as a result of such fluctuations, for such improved ratios and other financial measurements, as the avoidance of doubtcase may be, that the Borrower or any other Group Member may rely upon any improvement in any such ratio or “basket” availability) be utilized and (y2) if such applicable LCA Election is made, such ratios and other provisions shall not be tested at the time of consummation of such Limited Condition Transaction or related and specified actions. If the Company has made an LCA Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio or “basket” basket availability with respect to any other Limited Condition Transaction and related and specified actions on or following the relevant LCT LCA Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement or Public Offer binding letter of intent, as applicable, for such Limited Condition Transaction is terminated or expires or irrevocable notice is rescinded, as applicable, without consummation of such Limited Condition Transaction, any such ratio or “basket” availability basket shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions related and specified actions in connection therewith (including any incurrence of debt Indebtedness and the use of proceeds thereof (but without netting the cash proceeds thereof)) had have been consummated. The provisions of this Section 1.09(a) shall, for the avoidance of doubt, apply in respect of the incurrence of any Incremental Facility. For the avoidance of doubt, the making of an LCT Election shall not require notice to the Administrative Agent or any other Person. For the further avoidance of doubt, in the absence of an LCT Election, unless specifically stated in this Agreement to be otherwise, all determinations of (x) compliance with any financial ratio or test (including, without limitation, Section 6.10, any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, any Total Net Leverage Ratio test, any Interest Coverage Ratio test, and/or any other financial ratio or test) and/or any cap expressed as a percentage of Consolidated EBITDA or any other financial metric, (y) the accuracy of any representation and warranties, or any requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (z) any availability test under any “baskets” shall, in each case, be made as of the applicable date of the consummation of the Specified Transaction or the time the applicable action is taken, change is made, transaction is consummated or event occurs, as the case may be, and no Default or Event of Default shall occur solely as a result of a change in any such financial ratio or test, cap, financial metric, or “basket” availability occurring after such time.
(b) 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 under any covenant that does not require compliance with a financial ratio or test (including, without limitation, Section 6.10, Pro Forma compliance with any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Guaranteed Net Leverage Ratio test and/or any Interest Fixed Charge Coverage Ratio test but excluding any Consolidated Adjusted EBITDA test) (any such amounts, the “Fixed Amounts”) substantially concurrently (or as part of a series of related transactions) with any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement under the same covenant as such Fixed Amount that requires compliance with a any such financial ratio or test (including, without limitation, Section 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Incurrence-Incurrence Based Amounts”), it is understood and agreed that (i) the Fixed Amounts being substantially concurrently incurred (and other than, in the case of any cash proceeds thereof and Fixed Amounts contained in Section 7.01 or Section 7.02, any concurrent borrowing under a revolving facility, including a Borrowing consisting refinancing of RC Facility Loans or any other revolving facilityIndebtedness that was previously incurred) shall be disregarded, and disregarded in the incurrence calculation of the Incurrence-financial ratio or test applicable to the Incurrence Based Amount Amounts in connection with such substantially concurrent incurrence, except that incurrences of Indebtedness and Liens constituting Fixed Amounts shall be calculated, first without giving effect to taken into account for purposes of any Fixed Amount, but giving full pro forma effect to the use of proceeds of such Fixed Amount and (ii) the incurrence of the Fixed Amount shall be calculated thereafterIncurrence Based Amounts under any covenant other than Incurrence Based Amounts contained in Section 7.01 or Section 7.02.
(c) Notwithstanding anything to the contrary herein, for For purposes of determining compliance at any time with Section 2.22, Section 7.01, Section 7.02, Section 7.03, Section 7.04, Section 7.05 and Section 7.06, in the covenants described in Article VIevent that any Lien, if Indebtedness, Guarantee, Asset Sales and other dispositions, Investments, Acquisitions, Restricted Payments, Affiliate transactions or prepayment of Indebtedness meet the criteria of more than one of the categories of transactions or items (or any transaction combination of one or action would be more thereof) permitted pursuant to one or more provisions described thereinany provision of such Section 2.22, Section 7.01, Section 7.02, Section 7.03, Section 7.04, Section 7.05 and Section 7.06, the Borrower Company, in its sole discretion, may classify and/or reclassify (as if incurred such later time) such transaction or item (or portion thereof) from time to time and will only be required to include the amount and type of such transaction (or portion thereof) in any one category. In the event that a transaction (or any portion thereof) meets the criteria of an Asset Sale and would also be a Restricted Payment permitted under Section 7.04 or a Permitted Investment, the Company, in its sole discretion, will be entitled to divide and classify such transaction (or action within any covenant a portion thereof) as an Asset Sale and/or one or more of the types of permitted Restricted Payments or Permitted Investments and will only be required to include the amount and type of such transaction (or portion thereof) in any manner that complies with the covenants set forth therein, and may later divide and reclassify any such transaction or action so long as the transaction or action (as so divided and/or reclassified) would be permitted to be made in reliance on the applicable exception as of the date of such reclassification; provided that if any financial ratio or test governing any applicable Incurrence-Based Amount would be satisfied in any subsequent period following the utilization of any Fixed Amount, such reclassification shall be deemed to have automatically occurred if not elected by the Borrowerone category.
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Certain Calculations and Tests. (a) Notwithstanding anything in this Agreement or any Loan Document to the contrary, for purposes of (i) when determining compliance with any financial ratio, basket or any other provision in of this Agreement or any Loan Document that requires (including the calculation determination of any financial ratio or test (including, without limitation, Section 6.10, any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, Total Net Leverage Ratio test, any Interest Coverage Ratio test, and/or any other financial ratio or test), (ii) determining compliance with representations and warranties or the requirement regarding the absence any provision of a this Agreement which requires that no Default or Event of Default (has occurred, is continuing or any type would result therefrom or accuracy of Default or Event of Defaultrepresentations and warranties) or (iii) testing any cap measured as a percentage of Consolidated EBITDA or any other financial metric or by reference to the Available Amount, or any other availability of a “basket” or exception set forth in this Agreement, in each case, in connection with the consummation of a Limited Condition Transaction, the date of determinationdetermination of such financial ratio, basket or other provision (including determination of whether any Default or Event of Default has occurred, is continuing or would result therefrom or accuracy of representations and warranties) shall, at the election option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), will be deemed to be be, (1i) in the case of any acquisition or other Investment, Disposition, incurrence of Indebtedness or any transaction related to the foregoing, described in each case not prohibited hereunder, at the time of clause (or on the basis a) of the financial statements for US-DOCS\155537880.27 definition of “Limited Condition Transaction,” the most recently ended Test Period at the time of) either (x) the execution of date the definitive acquisition agreements or other binding contracts or agreements, or the establishment of a commitment, as applicable, with respect to agreement for such acquisition, Investment, Disposition, Indebtedness or related transaction (or, solely in connection with an acquisition to which the United Kingdom City Code on Takeovers and Mergers applies, the date on which a “Rule 2.7 Announcement” of a firm intention to make an offer or similar announcement or determination in another jurisdiction subject to laws similar to the City Code in respect of such target company made in compliance with the City Code or similar laws or practices in other jurisdictions (a “Public Offer”)) or (y) the consummation of such acquisition, Investment, Disposition, incurrence of Indebtedness or related transactionLimited Condition Transaction is entered into, (2ii) in the case of any Restricted Payment, at the time of transaction described in clause (or on the basis b) of the financial statements for definition of “Limited Condition Transaction,” the most recently ended Test Period at the time of) (x) the declaration date of such Restricted Payment irrevocable notice or (y) the making of such Restricted Payment irrevocable offer and (3iii) in the case of any Restricted Debt Payment, at the time of transaction described in clause (or on the basis c) of the financial statements for definition of “Limited Condition Transaction,” the most recently ended Test Period at the time of) (x) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Debt Payment or (y) the making date of such Restricted Debt Payment declaration (the applicable date pursuant to clause (1), (2) or (3) above, as applicableany such date, the “LCT Test Date”), and if, after such ratios financial ratios, baskets and other provisions are measured on a Pro Forma Basis (disregarding for the purposes of such pro forma calculation any Borrowing under the RC Facility or any other revolving facility) basis after giving effect to the such Limited Condition Transaction and the other transactions Specified Transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) and, at the election of the Borrower, any other acquisition or similar Investment, Restricted Payment, Restricted Debt Payment or Disposition that has not been consummated but with respect to which the Borrower has elected to test any applicable condition prior to the date of consummation in accordance with this Section 1.09(a), as if they had occurred at the beginning of the most recently completed Test Period recent four fiscal quarter period ending prior to the LCT Test DateDate and for which financial statements have been or are required to be delivered pursuant to Section 5.1(a) or Section 5.1(b), the Borrower could have taken such action on the relevant LCT Test Date in compliance with such financial ratios, representation, warranty, absence of Default or Event of Default or “basket”baskets and other provisions, such ratiofinancial ratios, representation, warranty, absence of Default or Event of Default or “basket” baskets and other provisions shall be deemed to have been complied with; provided that in the case of any transaction with respect to which this Agreement requires that no Default or Event of Default has occurred, is continuing or would result therefrom, the consummation of such transaction as a Limited Condition Transaction shall be subject to the condition that as of the date of the consummation of such Limited Condition Transaction and after giving effect thereto, no Specified Event of Default has occurred, is continuing or would result therefrom. For the avoidance of doubt, if the Borrower has made an LCT Election and (x) if any of the such financial ratios or “baskets” for which compliance was determined or tested as of the LCT Test Date baskets are exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of fluctuations in any such financial ratio or “basket” basket (including due to fluctuations of the target of any Limited Condition Transactionin Consolidated Adjusted EBITDA) at or prior to the consummation of the relevant Limited Condition Transaction, such “baskets” or financial ratios and other provisions baskets will not be deemed not to have been exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction is permitted hereunder (provided, for the avoidance of doubt, that the Borrower or any other Group Member may rely upon any improvement in any such ratio or “basket” availability) and (y) such financial ratios, baskets and other provisions shall not be tested at the time of consummation of such Limited Condition Transaction or related Specified Transactions. If the Borrower has made an LCT Election for any Limited Condition Transaction then in connection with any subsequent calculation of any financial ratio or “basket” availability basket with respect to any other Specified Transaction on or following the relevant LCT Test Date and prior to the earlier of (ix) the date on which such Limited Condition Transaction is consummated or and (iiy) the date that on which the definitive agreement agreement, binding offer, irrevocable notice or Public Offer declaration for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transactionexpires, any such financial ratio or “basket” availability basket shall be calculated on a Pro Forma Basis pro forma basis assuming such Limited Condition Transaction and other transactions Specified Transactions in connection therewith (including any incurrence of debt Indebtedness and the use of proceeds thereof (but without netting the cash proceeds thereof)) had have been consummated. The provisions of this Section 1.09(a) shall, for the avoidance of doubt, apply in respect of the incurrence of any Incremental Facility. For the avoidance of doubt, the making of an LCT Election shall not require notice to the Administrative Agent or any other Person. For the further avoidance of doubt, in the absence of an LCT Election, unless specifically stated in this Agreement to be otherwise, all determinations of (x) compliance with any financial ratio or test (including, without limitation, Section 6.10, any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, any Total Net Leverage Ratio test, any Interest Coverage Ratio test, and/or any other financial ratio or test) and/or any cap expressed as a percentage of Consolidated EBITDA or any other financial metric, (y) the accuracy of any representation and warranties, or any requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (z) any availability test under any “baskets” shall, in each case, be made as of the applicable date of the consummation of the Specified Transaction or the time the applicable action is taken, change is made, transaction is consummated or event occurs, as the case may be, and no Default or Event of Default shall occur solely as a result of a change in any such financial ratio or test, cap, financial metric, or “basket” availability occurring after such time.
(b) 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 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Fixed Amounts”) substantially concurrently (or as part of a series of related transactions) 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 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that (i) the Fixed Amounts (and any cash proceeds thereof and any concurrent borrowing under a revolving facility, including a Borrowing consisting of RC Facility Loans or any other revolving facility) shall be disregarded, and the incurrence of the Incurrence-Based Amount shall be calculated, first without giving effect to any Fixed Amount, but giving full pro forma effect to the use of proceeds of such Fixed Amount and (ii) the incurrence of the Fixed Amount shall be calculated thereafter.
(c) Notwithstanding anything to the contrary hereinAgreement, for purposes of the covenants described in Article VI, if any transaction Lien, Investment, Indebtedness, Asset Sale or action other disposition, Restricted Payment or payment of Junior Debt (or a portion thereof) would be permitted pursuant to one or more provisions described thereinbaskets or exceptions under any applicable covenant, the Borrower may divide and classify such transaction Lien, Investment, Indebtedness, Asset Sale or action other disposition, Restricted Payment or payment of Junior Debt (or a portion thereof) among the baskets and exceptions within any such covenant in any manner that complies with the covenants set forth thereinin Article VI, and may later divide and reclassify any such transaction Lien, Investment, Indebtedness, Asset Sale or action other disposition, Restricted Payment or payment of Junior Debt (or a portion thereof) so long as the transaction Lien, Investment, Indebtedness, Asset Sale or action other disposition, Restricted Payment or payment of Junior Debt (or a portion thereof) (as so divided redivided and/or reclassified) would be permitted to be made in reliance on the applicable exception as of the date of such redivision or reclassification; provided that any such divisions, classifications, redivisions and/or reclassifications shall only be permitted within a specific type of covenant, and not, for the avoidance of doubt, across different types of covenants. US-DOCS\155537880.27
(c) Notwithstanding anything in this Agreement or any Loan Document to the contrary, any calculation of the Consolidated Leverage Ratio and Consolidated Secured Leverage Ratio shall be calculated to exclude (i) an amount of outstanding Existing 2026 Convertible Notes (including, without limitation, for purposes of Consolidated Adjusted EBITDA, Consolidated Funded Debt and Consolidated Interest Expense) equal to the amount of 2026 Refinancing Funds maintained in a 2026 Refinancing Account; provided, that if the proceeds of any financing are to be deposited into such 2026 Refinancing Account, then any such financial ratio ratio, basket or test governing any applicable Incurrence-Based Amount would shall be satisfied calculated to give pro forma effect to such deposit into the 2026 Refinancing Account, and (ii) an amount of outstanding Existing 2028 Convertible Notes (including, without limitation, for purposes of Consolidated Adjusted EBITDA, Consolidated Funded Debt and Consolidated Interest Expense), equal to the amount of 2028 Refinancing Funds maintained in any subsequent period following a 2028 Refinancing Account; provided, that if the utilization proceeds of any Fixed Amountfinancing are to be deposited into such 2028 Refinancing Account, then any such reclassification financial ratio, basket or test shall be deemed calculated to have automatically occurred if not elected by give pro forma effect to such deposit into the Borrower2028 Refinancing Account.
Appears in 1 contract
Certain Calculations and Tests. (af) Notwithstanding anything to the contrary herein, but subject to this Section 1.10, all financial ratios and tests (including the Total Debt to Total Assets Ratio, the Senior Debt to Total Assets Ratio and the amount of Consolidated Total Assets and the component definitions of any of the foregoing) contained in this Agreement shall be calculated with respect to any applicable Test Period to give effect to all Subject Transactions on a Pro Forma Basis that occurred on or any Loan Document after the first day of such Test Period and on or prior to the contrary, for purposes date of (i) determining compliance with any provision in this Agreement or any Loan Document that requires the required calculation of any financial ratio or test (which may be after the end of such Test Period); provided, that solely for purposes of calculating quarterly compliance with Section 6.13(a), no Subject Transaction occurring after the last day of the Test Period shall be taken into account or given pro forma effect.
(g) With respect to any Limited Condition Transaction, notwithstanding anything to the contrary in this Agreement:
(i) To the extent that the terms of this Agreement require (A) the making or accuracy of any representations and warranties (other than in connection with any acquisition or similar Investment, the Specified Representations as related thereto), (B) compliance with any Financial Incurrence Test (including, without limitation, Section 6.106.13(a) hereof, any First Lien Net Leverage Total Debt to Total Assets Ratio test or any Senior Debt to Totals Assets Ratio test, any Secured Net Leverage Ratio test, Total Net Leverage Ratio test, any Interest Coverage Ratio test), and/or any other financial ratio or test)Basket expressed as a percentage of Consolidated Total Assets, (iiC) determining compliance with representations and warranties or the requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default), (D) compliance with, or determination of availability under, any Basket (including any categories (or subcategories) or items (iiior sub-items) testing under Section 2.22, 6.01, 6.02, 6.04, 6.06, 6.07 or 6.09 or any cap applicable defined terms used in any of the foregoing, including any measured as a percentage of Consolidated EBITDA Total Assets) or (E) compliance with, or satisfaction of, any other financial metric condition or by reference to the Available Amount, or any other availability of a “basket” or exception set forth in this Agreementrequirement, in each case, in connection with a any Limited Condition TransactionTransactions (or any actions and transactions in connection with any Limited Condition Transaction (including the incurrence of any Indebtedness (and related Liens) pursuant to Sections 2.22 and 6.01)) and any actions or transactions related thereto, determination of whether the date of determinationrelevant conditions or requirement described in subclauses (A) through (E) above (the “LCT Requirements”) are satisfied or complied with may be made, at the election of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), will be deemed to be (1) in the case of any acquisition or other Investment, Disposition, incurrence of Indebtedness or any transaction related to the foregoing, in each case not prohibited hereunder, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) either date (x) the execution of the definitive acquisition agreements or other binding contracts or agreements, or the establishment of a commitment, as applicable, with respect to such acquisition, Investment, Disposition, Indebtedness or related transaction (or, solely in connection with an acquisition to which the United Kingdom City Code on Takeovers and Mergers applies, the date on which a “Rule 2.7 Announcement” of a firm intention to make an offer or similar announcement or determination in another jurisdiction subject to laws similar to the City Code in respect of such target company made in compliance with the City Code or similar laws or practices in other jurisdictions (a “Public Offer”)) or (y) the consummation of such acquisition, Investment, Disposition, incurrence of Indebtedness or related transaction, (2) in the case of any Restricted Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) the declaration of such Restricted Payment or (y) the making of such Restricted Payment and (3) in the case of any Restricted Debt Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Debt Payment or (y) the making of such Restricted Debt Payment (the applicable date pursuant to clause (1), (2) or (3) above, as applicable, the “LCT Test Date”) the definitive agreements for such Limited Condition Transaction is entered into (or, if applicable, the date of delivery of irrevocable notice (which may be conditional or subject to deferral) with respect to Indebtedness or declaration of a Restricted Payment).
(ii) If, and if, after such ratios and other provisions are measured on a Pro Forma Basis (disregarding for the purposes of such pro forma calculation any Borrowing under the RC Facility or any other revolving facility) after giving effect to the Limited Condition Transaction (any related actions and transactions, including the other transactions to be entered into in connection therewith (including any incurrence of any Indebtedness (and related Liens) pursuant to Sections 2.22 and 6.01 and the use of proceeds thereofthereof and related Subject Transactions) and, at the election of the Borrower, and any other acquisition or similar Investment, Restricted Payment, Restricted Debt Payment or Disposition that has not been consummated but with respect to which the Borrower has elected to test any applicable condition prior to the date of consummation in accordance with this Section 1.09(a), as if they had occurred at the beginning of the most recently completed Test Period ending prior to the LCT Test Daterelated pro forma adjustments on a Pro Forma Basis, the Borrower could or any of its Restricted Subsidiaries would have taken been permitted to take such action actions or consummate such Limited Condition Transaction (and all related actions and transactions) on the relevant LCT Test Date in compliance with such ratiosany applicable LCT Requirements, representation, warranty, absence of Default or Event of Default or “basket”, such ratio, representation, warranty, absence of Default or Event of Default or “basket” all applicable LCT Requirements shall be deemed to have been complied with. For the avoidance of doubt, if with (or satisfied) for all purposes and the Borrower has made an and its Restricted Subsidiaries may consummate such Limited Condition Transaction and take or consummate all related actions and transactions at any time subsequent to the LCT Election and (x) Test Date regardless of whether any of the ratios or “baskets” for which compliance was LCT Requirement determined or tested as of the LCT Test Date are exceeded would at any 60 time subsequent to such LCT Test Date fail to be complied with or satisfied for any reason whatsoever (or, with respect including due to the Interest Coverage Ratiooccurrence or existence of any event, not reached) fact or circumstance), and no Default or Event of Default shall be deemed to have occurred as a result of fluctuations in any such ratio or “basket” (including due to fluctuations of the target of any Limited Condition Transaction) at or prior to the consummation of the relevant such Limited Condition TransactionTransaction and taking or consummation of all related actions and transactions.
(iii) If internal financial statements of the Borrower of the type described in Section 5.01(a) or Section 5.01(b), as applicable, are available (as determined in good faith by the Borrower) or such financial statements have been delivered pursuant to Section 5.01(a) or Section 5.01(b), as applicable, (a) the Borrower may elect, in its sole discretion, to re-determine compliance with, or satisfaction of, all applicable LCT Requirements on the basis of such financial statements, in which case, such “baskets” or ratios and other provisions will date of re-determination shall thereafter be deemed not to have been exceeded (or, with respect to be the Interest Coverage Ratio, not reached) as a result of such fluctuations solely applicable LCT Test Date for purposes of determining whether the Limited Condition Transaction is permitted hereunder (providedsuch ratios, for the avoidance of doubttests or baskets, that the Borrower or any other Group Member may rely upon any improvement in any such ratio or “basket” availability) and (yb) except as contemplated in the foregoing clause (a), compliance with such ratios, tests or baskets (and any related requirements and conditions) shall not be determined or tested at any time after the applicable LCT Test Date.
(iv) In calculating the availability under any ratio, test, basket, cap or threshold in connection with any subsequent calculation of action or transaction unrelated to such Limited Condition Transaction (including any ratio or “basket” availability on or other Limited Condition Transaction and related actions and transactions) following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement agreement, the notice redemption, purchase or Public Offer repayment or the declaration for such Limited Condition Transaction is terminated terminated, expires, passes or expires is revoked, as applicable, without consummation of such Limited Condition Transaction, any such ratio ratio, test, basket, cap or “basket” availability threshold shall be calculated on a Pro Forma Basis assuming determined or tested giving pro forma effect to such Limited Condition Transaction (and other transactions in connection therewith related actions and transactions).
(including any incurrence h) For purposes of debt and determining the use of proceeds thereof (but without netting the cash proceeds thereof)) had been consummated. The provisions of this Section 1.09(a) shall, for the avoidance of doubt, apply in respect of the incurrence permissibility of any Incremental Facility. For the avoidance action, change, transaction or event that requires a calculation of doubt, the making of an LCT Election shall not require notice to the Administrative Agent or any other Person. For the further avoidance of doubt, in the absence of an LCT Election, unless specifically stated in this Agreement to be otherwise, all determinations of (x) compliance with any financial ratio or test (including, without limitation, Section 6.106.13(a) hereof, any First Lien Net Leverage Total Debt to Total Assets Ratio test, any Secured Net Leverage Senior Debt to Total Assets Ratio testtest and/or the amount of Consolidated Total Assets), any Total Net Leverage Ratio test, any Interest Coverage Ratio test, and/or any other such financial ratio or test) and/or any cap expressed as a percentage of Consolidated EBITDA or any other financial metric, (y) the accuracy of any representation and warranties, or any requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (z) any availability test under any “baskets” shall, in each case, shall be made as of the applicable date of the consummation of the Specified Transaction or calculated at the time the applicable such action is takentaken (subject to clause (b) 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 occur or be deemed to have occurred solely as a result of a change in any such financial ratio or test, cap, financial metric, or “basket” availability test occurring after such timecalculation.
(bi) Notwithstanding anything in this Agreement or any Loan Document to the contrary hereincontrary, in calculating any Non-Fixed Basket any (x) Indebtedness incurred to fund original issue discount and/or upfront fees with respect to Indebtedness incurred under an applicable Non-Fixed Basket or in a concurrent transaction, a single transaction or a series of related transactions with the amount incurred, or transaction entered into or consummated, under an applicable Non-Fixed Basket and (y) any amounts incurred incurred, or transactions entered into (or consummated) , in reliance on a provision Fixed Basket (including the Free and Clear Incremental Amount) in a concurrent transaction, a single transaction or a series of this Agreement related transactions with the amount incurred, or transaction entered into or consummated, under an applicable Non-Fixed Basket, in each case of the foregoing clauses (x) and (y), shall be disregarded in the calculation of such Non-Fixed Basket. For all purposes hereunder, (i) “Fixed Basket” shall mean any Basket that does not require is subject to a fixed-dollar limit (including Baskets based on a percentage of Consolidated Total Assets), (ii) “Non-Fixed Basket” shall mean any Basket that is subject to compliance with a financial ratio or test (including, without limitation, Section 6.10the Financial Covenant, any First Lien Net Leverage the Senior Debt to Total Assets Ratio test, any and the Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Ratio testDebt to Total Assets Ratio) (any such amountsratio or test, a “Financial Incurrence Test”) and (iii) “Basket” means any amount, threshold, exception or value (including by reference to the Senior Debt to Total Assets Ratio, the “Fixed Amounts”Total Debt to Total Assets Ratio or Consolidated Total Assets) substantially concurrently permitted or prescribed with respect to any Indebtedness (including any Incremental Facility, Incremental Term Loan or as part of a series of related transactions) with Incremental Equivalent Debt), Lien, Restricted Payment, Restricted Debt Payment, Burdensome Agreement, Investment, Disposition, Affiliate transaction or any amounts incurred transaction, action, judgment or transactions entered into (or consummated) amount under any provision in reliance on a provision of this Agreement that requires compliance with a financial ratio or test (including, without limitation, Section 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that (i) the Fixed Amounts (and any cash proceeds thereof and any concurrent borrowing under a revolving facility, including a Borrowing consisting of RC Facility Loans or any other revolving facility) shall be disregarded, and the incurrence of the Incurrence-Based Amount shall be calculated, first without giving effect to any Fixed Amount, but giving full pro forma effect to the use of proceeds of such Fixed Amount and (ii) the incurrence of the Fixed Amount shall be calculated thereafterLoan Document.
(c) Notwithstanding anything to the contrary herein, for purposes of the covenants described in Article VI, if any transaction or action would be permitted pursuant to one or more provisions described therein, the Borrower may divide and classify such transaction or action within any covenant in any manner that complies with the covenants set forth therein, and may later divide and reclassify any such transaction or action so long as the transaction or action (as so divided and/or reclassified) would be permitted to be made in reliance on the applicable exception as of the date of such reclassification; provided that if any financial ratio or test governing any applicable Incurrence-Based Amount would be satisfied in any subsequent period following the utilization of any Fixed Amount, such reclassification shall be deemed to have automatically occurred if not elected by the Borrower.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Blackstone Mortgage Trust, Inc.)
Certain Calculations and Tests. (a) Notwithstanding anything in this Agreement or any Loan Credit Document to the contrary, for purposes of (i) determining compliance with any provision in this Agreement or any Loan Credit Document that requires the calculation of any financial ratio or test (including, without limitation, Section 6.10, any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, Total Net Leverage Ratio test, any Interest Coverage Ratio test, and/or any other financial ratio or test), (ii) determining compliance with representations and warranties or the requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (iii) testing any cap measured as a percentage of Consolidated EBITDA or any other cap, financial metric or by reference to the Available Amount, or any other availability of a “basket” or exception set forth in this Agreement, in each case, in connection with a Limited Condition Transaction, the date of determination, at the election of the any Borrower (the such Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), will be deemed to be be: (1) in the case of any acquisition or other Investment, Disposition, incurrence of Indebtedness or any transaction related to the foregoing, in each case not prohibited hereunder, at the time of (or on the basis of the financial statements for the most recently ended Test Period measurement period at the time of) either (x) the execution of the definitive acquisition agreements or other binding contracts or agreements, or the establishment of a commitment, as applicable, with respect to such acquisition, Investment, Disposition, Indebtedness Investment or related transaction (or, solely in connection with an acquisition to which the United Kingdom City Code on Takeovers and Mergers applies, the date on which a “Rule 2.7 Announcement” of a firm intention to make an offer or similar announcement or determination in another jurisdiction subject to laws similar to the City Code in respect of such target company made in compliance with the City Code or similar laws or practices in other jurisdictions (a “Public Offer”)) or (y) the consummation of such acquisition, Investment, Disposition, incurrence of Indebtedness acquisition or Investment or related transaction, ; and (2) in the case of any Restricted Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period measurement period at the time of) (x) the declaration of such Restricted Payment or (y) the making of such Restricted Payment and (3) in the case of any Restricted Debt Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Debt Payment or (y) the making of such Restricted Debt Payment (the applicable date pursuant to clause (1), (2) or (32) above, as applicable, the “LCT Test Date”), and if, after such ratios and other provisions are measured on a Pro Forma Basis (disregarding for the purposes of such pro forma calculation any Borrowing under the RC Facility or any other revolving facility) after giving effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) and, at the election of the any Borrower, any other acquisition or similar Investment, Investment or Restricted Payment, Restricted Debt Payment or Disposition that has not been consummated but with respect to which the such Borrower has elected to test any applicable condition prior to the date of consummation in accordance with this Section 1.09(a1.8(a), as if they had occurred at the beginning of the most recently completed Test Period measurement period ending prior to the LCT Test Date, the such Borrower could have taken such action on the relevant LCT Test Date in compliance with such ratios, representation, warranty, absence of Default or Event of Default or “basket”, such ratio, representation, warranty, absence of Default or Event of Default or “basket” shall be deemed to have been complied with. For the avoidance of doubt, if the a Borrower has made an LCT Election and (x) any of the ratios or “baskets” for which compliance was determined or tested as of the LCT Test Date are exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of fluctuations in any such ratio or “basket” (including due to fluctuations of the EBITDA or total assets of the target of any Limited Condition Transaction) at or prior to the consummation of the relevant Limited Condition Transaction, such “baskets” or ratios and other provisions will be deemed not to have been exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction is permitted hereunder (provided, for the avoidance of doubt, that the such Borrower or any other Group Member Credit Party or Restricted Subsidiary may rely upon any improvement in any such ratio or “basket” availability) and (y) in connection with any subsequent calculation of any ratio or “basket” availability on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement or Public Offer for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or “basket” availability shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of debt and the use of proceeds thereof (but without netting the cash proceeds thereof)) had been consummated. The provisions of this Section 1.09(a) shall, for the avoidance of doubt, apply in respect of the incurrence of any Incremental Facility. For the avoidance of doubt, the making of an LCT Election shall not require notice to the Administrative Agent or any other Person. For the further avoidance of doubt, in the absence of an LCT Election, unless specifically stated in this Agreement to be otherwise, all determinations of (x) compliance with any financial ratio or test (including, without limitation, Section 6.10, any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, any Total Net Leverage Ratio test, any Interest Coverage Ratio test, and/or any other financial ratio or test) and/or any cap expressed as a percentage of Consolidated EBITDA or any other financial metric, (y) the accuracy of any representation and warranties, or any requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (z) any availability test under any “baskets” shall, in each case, be made as of the applicable date of the consummation of the Specified Transaction or the time the applicable action is taken, change is made, transaction is consummated or event occurs, as the case may be, and no Default or Event of Default shall occur solely as a result of a change in any such financial ratio or test, cap, financial metric, or “basket” availability occurring after such time
(b) 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 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Fixed Amounts”) substantially concurrently (or as part of a series of related transactions) 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 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that (i) the Fixed Amounts (and any cash proceeds thereof and any concurrent borrowing under a revolving facility, including a Borrowing consisting of RC Facility Loans or any other revolving facility) shall be disregarded, and the incurrence of the Incurrence-Based Amount shall be calculated, first without giving effect to any Fixed Amount, but giving full pro forma effect to the use of proceeds of such Fixed Amount and (ii) the incurrence of the Fixed Amount shall be calculated thereafter.
(c) Notwithstanding anything to the contrary herein, for purposes of the covenants described in Article VI, if any transaction or action would be permitted pursuant to one or more provisions described therein, the Borrower may divide and classify such transaction or action within any covenant in any manner that complies with the covenants set forth therein, and may later divide and reclassify any such transaction or action so long as the transaction or action (as so divided and/or reclassified) would be permitted to be made in reliance on the applicable exception as of the date of such reclassification; provided that if any financial ratio or test governing any applicable Incurrence-Based Amount would be satisfied in any subsequent period following the utilization of any Fixed Amount, such reclassification shall be deemed to have automatically occurred if not elected by the Borrower.been
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