Common use of Certain Conditions, Calculations and Tests Clause in Contracts

Certain Conditions, Calculations and Tests. (a) In connection with any action being taken in connection with a Limited Condition Acquisition, for purposes of: (i) determining compliance with any provision of this Agreement which requires the calculation of Consolidated EBITDA (including, without limitation, tests measured as a percentage of Consolidated EBITDA), the First Lien Net Leverage Ratio, the Secured Net Leverage Ratio or the Total Net Leverage Ratio (other than for purposes of any Applicable Margin or any Applicable Commitment Fee Rate); or (ii) testing availability under baskets set forth in this Agreement (including, without limitation, baskets measured as a percentage of Consolidated Total Assets or Consolidated EBITDA or by reference to the First Lien Net Leverage Ratio, the Secured Net Leverage Ratio or the Total Net Leverage Ratio), in each case, at the option of the Parent Borrower (the Parent Borrower’s election to exercise such option in connection with any Limited Condition Acquisition, an “LCA Election”), the date of determination of whether any such action is permitted hereunder shall be deemed to be the date the definitive agreements for such Limited Condition Acquisition are entered into (the “LCA Test Date”), and if, after giving pro forma effect to the Limited Condition Acquisition and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness or Liens and the use of proceeds thereof) as if they had occurred at the beginning of the most recent Testing Period ended prior to the LCA Test Date, the Parent Borrower could have taken such action on the relevant LCA Test Date in compliance with such test, ratio or basket, calculated on a Pro Forma Basis, then such test, ratio or basket shall be deemed to have been complied with. If the Parent Borrower has made an LCA Election and any of the tests, ratios or baskets for which compliance was determined or tested as of the LCA Test Date are subsequently exceeded as a result of fluctuations in any such test, ratio or basket, including due to fluctuations in Consolidated EBITDA or Consolidated Total Assets of the Parent Borrower and its Subsidiaries or the Person subject to such Limited Condition Acquisition, at or prior to the consummation of the relevant transaction or action, such tests, baskets or ratios will be deemed not to have been exceeded as a result of such fluctuations solely for purposes of determining whether the relevant transaction or action is permitted to be consummated or taken. If the Parent Borrower has made an LCA Election for any Limited Condition Acquisition, then (x) in connection with any subsequent calculation of any test, ratio or basket availability with respect to the incurrence of Indebtedness or Liens or the making of Investments on or following the relevant LCA Test Date and prior to the earlier of the date on which such Limited Condition Acquisition is consummated or the definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition, any such test, ratio or basket shall be tested by calculating the availability under such test, ratio or basket on a Pro Forma Basis assuming such Limited Condition Acquisition and other transactions in connection therewith (including any incurrence of Indebtedness and any associated Lien and the use of proceeds thereof) have been consummated and (y) in connection with any calculation of any ratio, test or basket availability with respect to the making of Restricted Payments pursuant to Section 7.05 following the relevant LCA Test Date and prior to the earlier of the date on which such Limited Condition Acquisition is consummated or the definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition, for purposes of determining whether such Restricted Payment is permitted under this Agreement, any such test, ratio or basket shall be tested by calculating the availability under such test, ratio or basket on a Pro Forma Basis (i) assuming such Limited Condition Acquisition and other transactions in connection therewith have been consummated and (ii) assuming such Limited Condition Acquisition and other transactions in connection therewith have not been consummated. In connection with any action being taken in connection with a Limited Condition Acquisition, for purposes of determining compliance with any provision of this Agreement which requires that no Event of Default or Default (or any subject of Defaults or Events of Default), as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall, at the option of the Parent Borrower, be deemed satisfied, so long as no Event of Default or Default, as applicable, exists on the LCA Test Date. If the Parent Borrower has exercised its option under this Section 1.13 and any Event of Default or Default occurs following the LCA Test Date and prior to the consummation of the applicable transaction, any such Event of Default or Default shall be deemed to not have occurred or be continuing for purposes of determining whether any action being taken in connection with such Limited Condition Acquisition is permitted hereunder. (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 any First Lien Net Leverage Ratio, Secured Net Leverage Ratio and/or Total Net Leverage Ratio) (any such amounts, the “Fixed Amounts”) substantially concurrently with any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that does require compliance with any such financial ratio or test (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that the Fixed Amounts (and any cash proceeds thereof) shall be disregarded in the calculation of the financial ratio or test applicable to the Incurrence-Based Amounts in connection with such substantially concurrent incurrence.

Certain Conditions, Calculations and Tests. (a) In connection with any action being taken solely in connection with a Limited Condition AcquisitionTransaction, for purposes of: (i) determining compliance with any provision of this Agreement which requires the calculation of Consolidated EBITDA (including, without limitation, tests measured as a percentage of Consolidated EBITDA), the First Lien Net Leverage Ratio, the Senior Secured Net Leverage Ratio Ratio, or the Total Net Leverage Ratio any financial ratio (other than for purposes of any Applicable Margin or any Applicable Commitment Fee RateMargin); or (ii) testing availability under baskets set forth in this Agreement (including, without limitation, baskets measured as a percentage of Consolidated Total Assets or Consolidated EBITDA or by reference to the First Lien Net Leverage Ratio, the Secured Net Leverage Ratio or the Total Net Leverage RatioTangible Assets), ; in each case, at the option of the Parent Borrower (the Parent Borrower’s election to exercise such option in connection with any Limited Condition AcquisitionTransaction, an “LCA LCT Election”), the date of determination of whether any such action is permitted hereunder shall be deemed to be (i) in the case of a Limited Condition Acquisition, the date the definitive agreements for such Limited Condition Acquisition are entered into into, (ii) in the case of any redemption or repayment of Debt requiring irrevocable advance notice or any irrevocable offer to purchase Debt that is not subject to obtaining financing, the date of such irrevocable advance notice or irrevocable offer and (iii) in the case of any Restricted Payment, the date of the declaration, irrevocable advance notice or irrevocable offer of such Restricted Payment (each, an “LCA LCT Test Date”), and if, after giving pro forma effect to the Limited Condition Acquisition and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness or Liens Debt and the use of proceeds thereof) as if they had occurred at the beginning of the most recent Testing Measurement Period ended prior to the LCA LCT Test Date, the Parent Borrower could have taken such action on the relevant LCA LCT Test Date in compliance with such test, ratio or basket, calculated on a Pro Forma Basis, then such test, ratio or basket shall be deemed to have been complied with. If the Parent Borrower has made an LCA LCT Election and any of the tests, ratios or baskets for which compliance was determined or tested as of the LCA LCT Test Date are subsequently exceeded as a result of fluctuations in any such test, ratio or basket, including due to fluctuations in Consolidated EBITDA or Consolidated Total Tangible Assets of the Parent Borrower and its Subsidiaries or the Person subject to such Limited Condition AcquisitionRestricted Subsidiaries, at or prior to the consummation of the relevant transaction or action, such tests, baskets or ratios will be deemed not to have been exceeded as a result of such fluctuations solely for purposes of determining whether the relevant transaction or action is permitted to be consummated or taken; provided that if such ratios or baskets improve as a result of such fluctuations, such improved ratios and/or baskets may be utilized. If the Parent Borrower has made an LCA LCT Election for any Limited Condition AcquisitionTransaction, then (x) in connection with any subsequent calculation of any test, ratio or basket availability with respect to the incurrence of Indebtedness Debt or Liens Liens, or the making of Investments Investments, Restricted Payments, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of the Borrower, the prepayment, redemption, purchase, defeasance or other satisfaction of Debt on or following the relevant LCA LCT Test Date and prior to the earlier of the date on which such Limited Condition Acquisition Transaction is consummated or or, in the case of a Limited Condition Acquisition, the definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition, any such test, ratio or basket shall be tested by calculating the availability under such test, ratio or basket on a Pro Forma Basis assuming such Limited Condition Acquisition Transaction and other transactions in connection therewith have been consummated (including any incurrence of Indebtedness Debt and any associated Lien and the use of proceeds thereof) have been consummated and (y) in connection with any calculation of any ratio, test or basket availability with respect to the making of Restricted Payments pursuant to Section 7.05 following the relevant LCA Test Date and prior to the earlier of the date on which such Limited Condition Acquisition is consummated or the definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition, for purposes of determining whether such Restricted Payment is permitted under this Agreement, any such test, ratio or basket shall be tested by calculating the availability under such test, ratio or basket on a Pro Forma Basis (i) assuming such Limited Condition Acquisition and other transactions in connection therewith have been consummated and (ii) assuming such Limited Condition Acquisition and other transactions in connection therewith have not been consummated). In connection with any action being taken in connection with a Limited Condition AcquisitionTransaction, for purposes of determining compliance with any provision of this Agreement which requires that no Event of Default or Default (or any subject of Defaults or Events of Default), as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall, at the option of the Parent Borrower, be deemed satisfied, so long as no Event of Default or Default, as applicable, exists on the LCA Test Datedate the definitive agreements for such Limited Condition Transaction are entered into. If the Parent Borrower has exercised its option under this Section 1.13 1.9, and any Event of Default or Default occurs following the LCA Test Date date the definitive agreements for the applicable Limited Condition Transaction were entered into and prior to the consummation of the applicable transactionsuch Limited Condition Transaction, any such Event of Default or Default shall be deemed to not have occurred or be continuing for purposes of determining whether any action being taken in connection with such Limited Condition Acquisition Transaction is permitted hereunder. (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 including, without limitation, any First Lien Net Leverage Ratio, Secured Net Leverage Ratio and/or Total Net Senior Secured Leverage Ratio) (any such amounts, the “Fixed Amounts”) substantially concurrently with any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that does require requires compliance with any such financial ratio or test (any such amounts, the “Incurrence-Incurrence Based Amounts”), it is understood and agreed that the Fixed Amounts (and any cash proceeds thereof) shall be disregarded in the calculation of the financial ratio or test applicable to the Incurrence-Incurrence Based Amounts in connection with such substantially concurrent incurrence.

Certain Conditions, Calculations and Tests. (a) In connection with any action being taken solely in connection with a Limited Condition AcquisitionTransaction, for purposes of: (i) determining compliance with any provision of this Agreement which that requires the calculation of Consolidated EBITDA (including, without limitation, including tests measured as a percentage of Consolidated EBITDA), the First Lien Total Net Leverage Ratio, the Secured Net Leverage Ratio or Ratio, the Total First Lien Net Leverage Ratio or any financial ratio (other than for purposes of any Applicable Margin or any Applicable Commitment Fee RateMargin); or (ii) testing availability under baskets set forth in this Agreement (including, without limitation, baskets measured as a percentage of Consolidated Total Assets or Consolidated EBITDA or by reference to the First Lien Net Leverage Ratio, the Secured Net Leverage Ratio or the Total Net Leverage Ratio), Agreement; in each case, at the option of the Parent Borrower (the Parent Borrower’s election to exercise such option in connection with any Limited Condition AcquisitionTransaction, an “LCA LCT Election”), the date of determination of whether any such action is permitted hereunder shall be deemed to be (i) in the case of a Limited Condition Acquisition, the date the definitive agreements for such Limited Condition Acquisition are entered into into, and (ii) in the case of any redemption or repayment of Debt requiring irrevocable advance notice or any irrevocable offer to purchase Debt that is not subject to obtaining financing, the date of such irrevocable advance notice or irrevocable offer (each, an “LCA LCT Test Date”), and if, after giving pro forma effect to the Limited Condition Acquisition such action and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness or Liens Debt and the use of proceeds thereof) as if they had occurred at the beginning of the most recent Testing Measurement Period ended prior to the LCA LCT Test Date, the Parent Borrower could have taken such action on the relevant LCA LCT Test Date in compliance with such test, ratio or basket, calculated on a Pro Forma Basis, then such test, ratio or basket shall be deemed to have been complied with. If the Parent Borrower has made an LCA LCT Election and any of the tests, ratios or baskets for which compliance was determined or tested as of the LCA LCT Test Date are subsequently exceeded as a result of fluctuations in any such test, ratio or basket, including due to fluctuations in Consolidated EBITDA or Consolidated Total Assets of the Parent Borrower and its Subsidiaries or the Person subject to such Limited Condition AcquisitionRestricted Subsidiaries, at or prior to the consummation of the relevant transaction or actionLimited Condition Transaction, such tests, baskets or ratios will be deemed not to have been exceeded as a result of such fluctuations solely for purposes of determining whether the relevant transaction such Limited Condition Transaction or action is permitted to be consummated or taken; provided that if such ratios or baskets improve as a result of such fluctuations, such improved ratios or baskets may be utilized. If the Parent Borrower has made an LCA LCT Election for any Limited Condition AcquisitionTransaction, then (x) in connection with any subsequent calculation of any test, ratio or basket availability with respect to the incurrence of Indebtedness Debt or Liens Liens, or the making of Investments Investments, or mergers, or the conveyance, lease or other transfer of assets of the Borrower, or the prepayment, redemption, purchase, defeasance or other satisfaction of Debt, in each case on or following the relevant LCA LCT Test Date and prior to the earlier of the date on which such Limited Condition Acquisition Transaction is consummated or or, in the case of a Limited Condition Acquisition, the definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition, any such test, ratio or basket shall be tested by calculating the availability under such test, ratio or basket on a Pro Forma Basis assuming such Limited Condition Acquisition Transaction and other transactions in connection therewith have been consummated (including any incurrence of Indebtedness Debt and any associated Lien and the use of proceeds thereof) have been consummated and (y) in connection with any calculation of any ratio, test or basket availability with respect to the making of Restricted Payments pursuant to Section 7.05 following the relevant LCA Test Date and prior to the earlier of the date on which such Limited Condition Acquisition is consummated or the definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition, for purposes of determining whether such Restricted Payment is permitted under this Agreement, any such test, ratio or basket shall be tested by calculating the availability under such test, ratio or basket on a Pro Forma Basis (i) assuming such Limited Condition Acquisition and other transactions in connection therewith have been consummated and (ii) assuming such Limited Condition Acquisition and other transactions in connection therewith have not been consummated). In connection with any action being taken in connection with a Limited Condition AcquisitionTransaction, for purposes of determining compliance with any provision of this Agreement which that requires that no Event of Default or Default (or any subject of Defaults or Events of Default), as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall, at the option of the Parent Borrower, be deemed satisfied, so long as no Event of Default or Default, as applicable, exists on the LCA applicable LCT Test Date. If the Parent Borrower has exercised its option under this Section 1.13 1.6, and any Event of Default or Default occurs following the LCA applicable LCT Test Date and prior to the consummation of the applicable transactionsuch Limited Condition Transaction, any such Event of Default or Default shall be deemed not to not have occurred or be continuing for purposes of determining whether any action being taken in connection with such Limited Condition Acquisition Transaction is permitted hereunder. (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 any First Lien the Interest Coverage Ratio, Total Net Leverage Ratio, Secured Net Leverage Ratio and/or Total Ratio, or First Lien Net Leverage Ratio) (any such amounts, the “Fixed Amounts”) substantially concurrently with any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that does require requires compliance with any such financial ratio or test (any such amounts, the “Incurrence-Incurrence Based Amounts”), it is understood and agreed that the Fixed Amounts (and any cash proceeds thereof) shall be disregarded in the calculation of the financial ratio or test applicable to the Incurrence-Incurrence Based Amounts in connection with such substantially concurrent incurrence. (c) For purposes of determining the permissibility of any action, change, transaction or event that requires a calculation of any financial ratio or test (including the Financial Covenant, any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, any Total Net Leverage Ratio test and/or any Interest Coverage Ratio test and/or the amount of Consolidated EBITDA), such financial ratio or test shall be calculated at the time such action is taken (subject to Section 1.6(a)), such change is made, such transaction is consummated or such event occurs, as the case may be, and no Default or Event of Default shall be deemed to have occurred solely as a result of a change in such financial ratio or test or in Consolidated EBITDA occurring after the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be.

Certain Conditions, Calculations and Tests. (a) In connection with any action being taken in connection with a Limited Condition AcquisitionTransaction, for purposes of: (i) determining compliance with any provision of this Agreement which requires the calculation of Adjusted Consolidated EBITDA (including, without limitation, tests measured as a percentage of Adjusted Consolidated EBITDA), the First Lien Secured Net Leverage Ratio, the Secured Net Leverage Ratio or the Total Net Leverage Ratio or, the Interest Coverage Ratio or the Fixed Charge Coverage Ratio, as applicable (other than for purposes of any Applicable Margin or any Applicable Commitment Fee RateMargin); or (ii) testing availability under baskets set forth in this Agreement (including, without limitation, baskets measured as a percentage of Consolidated Total Assets or LTM Adjusted Consolidated EBITDA or by reference to the First Lien Secured Net Leverage Ratio, the Secured Total Net Leverage Ratio or, the Interest Coverage Ratio or the Total Net Leverage Fixed Charge Coverage Ratio, as applicable), in each case, at the option of the Parent Borrower (the Parent Borrower’s election to exercise such option in connection with any Limited Condition AcquisitionTransaction, an “LCA LCT Election”), the date of determination of whether any such action is permitted hereunder shall be deemed to be (i) in the case of a Limited Condition Acquisition, the date of the definitive agreements for such Limited Condition Acquisition are entered into or solely in connection with an acquisition to which the United Kingdom City Code on Takeovers and Mergers (or similar law or regulation) applies, the date on which a “LCA Rule 2.7 announcement” (or similar announcement) of a firm intention to make an offer is published on a regulatory information service in respect of a target of a Limited Condition Transaction, (ii) in the case of any redemption or repayment of Indebtedness requiring irrevocable advance notice or any irrevocable offer to purchase Indebtedness that is not subject to obtaining financing, the date of such irrevocable advance notice or irrevocable offer and (iii) in the case of any declaration of a distribution or dividend in respect of, or irrevocable advance notice of, or any irrevocable offer to, purchase, redeem or otherwise acquire or retire for value any Equity Interests of, the Borrower that is not subject to obtaining financing, the date of such declaration, irrevocable advance notice or irrevocable offer (each, an “LCT Test Date”), and if, after giving pro forma effect to the Limited Condition Acquisition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness or Liens and the use of proceeds thereof) as if they had occurred at the beginning of the most recent Testing Test Period ended prior to the LCA LCT Test Date, the Parent Borrower could have taken such action on the relevant LCA LCT Test Date in compliance with such test, ratio or basket, calculated on a Pro Forma Basis, then such test, ratio or basket shall be deemed to have been complied with. If the Parent Borrower has made an LCA LCT Election and any of the tests, ratios or baskets for which compliance was determined or tested as of the LCA LCT Test Date are subsequently exceeded as a result of fluctuations in any such test, ratio or basket, including due to fluctuations in Adjusted Consolidated EBITDA or Consolidated Total Assets of the Parent Borrower and its Subsidiaries or the Person subject to such Limited Condition AcquisitionSubsidiaries, at or prior to the consummation of the relevant transaction or action, such tests, baskets or ratios will be deemed not to have been exceeded as a result of such fluctuations solely for purposes of determining whether the relevant transaction or action is permitted to be consummated or taken. If the Parent Borrower has made an LCA LCT Election for any Limited Condition AcquisitionTransaction, then (x) in connection with any subsequent calculation of any test, ratio or basket availability with respect to (other than the incurrence testing of Indebtedness or Liens or any ratio for purposes of Section 6.10 and the making definition of Investments “Applicable Margin”) on or following the relevant LCA LCT Test Date and prior to the earlier of the date on which such Limited Condition Acquisition Transaction is consummated or the definitive agreement agreement/announcement for such Limited Condition Acquisition Transaction is terminated or expires without consummation of such Limited Condition AcquisitionTransaction, any such testratio, ratio basket or basket amount shall be tested by calculating the availability under such test, ratio or basket calculated on a Pro Forma Basis assuming such Limited Condition Acquisition Transaction and other transactions in connection therewith (including any incurrence or discharge of Indebtedness and any associated Lien and/or Liens and the use of proceeds thereof) have been consummated and (y) in connection with any calculation of any ratio, test or basket availability with respect to the making of Restricted Payments pursuant to Section 7.05 following the relevant LCA Test Date and prior to the earlier of the date on which such Limited Condition Acquisition is consummated or the definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition, for purposes of determining whether such Restricted Payment is permitted under this Agreement, any such test, ratio or basket shall be tested by calculating the availability under such test, ratio or basket on a Pro Forma Basis (i) assuming such Limited Condition Acquisition and other transactions in connection therewith have been consummated and (ii) assuming such Limited Condition Acquisition and other transactions in connection therewith have not been consummated. In connection with any action being taken in connection with a Limited Condition AcquisitionTransaction, for purposes of determining compliance with any provision of this Agreement which requires that no Event of Default or Default (or any subject of Defaults or Events of Default), as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall, at the option of the Parent Borrower, be deemed satisfied, so long as no Event of Default or Default, as applicable, exists on the LCA LCT Test Date. If the Parent Borrower has exercised its option under this Section 1.13 1.07 and any Event of Default or Default occurs following the LCA LCT Test Date and prior to the consummation of the applicable transaction, any such Event of Default or Default shall be deemed to not have occurred or be continuing for purposes of determining whether any action being taken in connection with such Limited Condition Acquisition Transaction is permitted hereunder. (b) Notwithstanding anything to the contrary herein, with respect to any amounts incurred or transactions entered into (or consummated) in reliance on a provision or covenant of this Agreement that does not require compliance with a financial ratio or test (including any First Lien Secured Net Leverage Ratio, Secured Total Net Leverage Ratio and/or Total Net Leverage Interest Coverage Ratio) (any such amounts, the “Fixed Amounts”) substantially concurrently or in a series of related transactions with any amounts incurred or transactions entered into (or consummated) in reliance on a provision or covenant of this Agreement that does require compliance with any such financial ratio or test (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that (x) the Fixed Amounts (and any cash proceeds thereof) shall be disregarded in the calculation of the financial ratio or test applicable to the Incurrence-Based Amounts in connection with such substantially concurrent incurrenceincurrence and (y) the entire transaction (or series of related transactions) shall be calculated on a Pro Forma Basis (including the use of proceeds of all Indebtedness to be incurred and any repayments, repurchases, redemptions or other retirements of Indebtedness). Notwithstanding anything herein to the contrary, if at any time any applicable ratio or financial test for any category based on an Incurrence-Based Amount permits Indebtedness, Liens, Restricted Payments, Asset Sales and Investments, as applicable, previously incurred under a category based on a Fixed Amount, such Indebtedness, Liens, Restricted Payments, Asset Sales, Investments, as applicable, shall be deemed to have been automatically reclassified as incurred under such category based on an Incurrence-Based Amount.