Limited Condition Acquisitions. Notwithstanding anything herein to the contrary, solely in the case of the incurrence of any Indebtedness or Liens or the making of any Investments or consolidations, mergers, divisions, or other fundamental changes, in each case in connection with a Limited Condition Acquisition, (a) for purposes of determining compliance with any provision of this Agreement which requires that no Default or Event of Default, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall be deemed satisfied, so long as (x) no Event of Default exists on the date of execution of the definitive agreement(s) for such Limited Condition Acquisition and (y) no Specified Event of Default exists at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and (b) for purposes of determining compliance with any provision of this Agreement which requires that any of the representations and warranties made by any Loan Party set forth in this Agreement or in any other Loan Document be true and correct, such condition shall be deemed satisfied, so long as (x) the representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects (without duplication of any materiality qualifier therein) as of the date of execution of the definitive agreement(s) for such Limited Condition Acquisition and (y) the Specified Representations (in each case, modified solely to the extent necessary to reflect the applicable terms of such Limited Condition Acquisition as set forth in the definitive agreement(s) governing such transaction) are true and correct in all material respects (without duplication of any materiality qualifier therein), at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and neither the Borrower nor any other Loan Party shall be required to bring down any other representation or warranty as a condition to the consummation of such Limited Condition Acquisition (or the incurrence of any Indebtedness and any other ancillary transaction consummated in connection with such Limited Condition Acquisition).
Appears in 4 contracts
Samples: Credit Agreement (Centric Brands Inc.), Credit Agreement (Centric Brands Inc.), Second Lien Credit Agreement (Centric Brands Inc.)
Limited Condition Acquisitions. Notwithstanding anything herein the foregoing provisions of this Section 2.22 or in any other provision of any Loan Document:
(i) if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, the conditions precedent to the contraryBorrower Representative’s right to request such Incremental Facility for a Limited Condition Acquisition shall (so long as the requirements of Section 2.22(a) (other than clauses (x) and (xi) thereof) are met with respect to such Incremental Facility) be limited to the following: (a) on the date of the signing of the definitive acquisition agreement for such Limited Condition Acquisition (x) no Event of Default shall have occurred and be continuing (y) each of the representations and warranties contained in the Loan Documents shall be true and correct in all material respects (except (I) with respect to representations and warranties expressly made as of an earlier date, solely in which case such representations and warranties were true and correct in all material respects as of such earlier date and (II) that if any such representation or warranty contains any materiality qualifier, such representation or warranty shall be true and correct in all respects); and (b) at the date of closing of such Limited Condition Acquisition and the funding of the applicable Incremental Facility, (A) no Event of Default under Section 7.01(a), (f) or (g) shall have occurred and be continuing, (B) the only representations and warranties the accuracy of which shall be a condition to funding such advance shall be the Specified Representations and the Specified Acquisition Agreement Representations, and
(ii) in the case of the incurrence of any Indebtedness indebtedness or Liens liens or the making of any Investments investments, restricted payments, prepayments of subordinated or consolidationsjunior debt, mergers, divisions, asset sales or other fundamental changes, in each case changes or the designation of any restricted subsidiaries or unrestricted subsidiaries in connection with a Limited Condition Acquisition, at the Borrower Representative’s option, the relevant ratios and baskets (other than those set forth in clause (a), (b), (c) for purposes and (d) of determining compliance with the definition of “Incremented Cap”) shall be determined, and any provision default or event of this Agreement which requires that no Default or Event of Defaultdefault blocker shall be tested, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall be deemed satisfied, so long as (x) no Event of Default exists on the date of execution of the definitive agreement(s) acquisition agreements for such Limited Condition Acquisition and (y) no Specified Event of Default exists at are entered into and, subject to the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and (b) for purposes of determining compliance with any provision of this Agreement which requires that any of the representations and warranties made by any Loan Party set forth second proviso contained in this Agreement or clause (ii), calculated as if the acquisition and other pro forma events in any other Loan Document be true and correctconnection therewith were consummated on such date; provided that if the Borrower Representative has made such an election, such condition shall be deemed satisfied, so long as (x) in connection with the representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects (without duplication calculation of any materiality qualifier therein) as ratio or basket with respect to the incurrence of any debt or liens, or the making of any investments, restricted payments, prepayments of subordinated, junior or unsecured debt, asset sales, fundamental changes or the designation of a restricted subsidiary or unrestricted subsidiary on or following such date and prior to the earlier of the date of execution of on which such acquisition is consummated or the definitive agreement(sagreement for such acquisition is terminated, any such ratio shall, subject to the proviso below, be calculated on a pro forma basis assuming such acquisition and other pro forma events in connection therewith (including any incurrence of indebtedness) for have been consummated; provided that the consolidated net income (and any other financial defined term derived therefrom) shall not include any consolidated net income of or attributable to the target company or assets associated with any such Limited Condition Acquisition unless and (y) until the Specified Representations (in each case, modified solely to the extent necessary to reflect the applicable terms closing of such Limited Condition Acquisition as set forth in the definitive agreement(s) governing such transaction) are true and correct in all material respects (without duplication of any materiality qualifier therein), at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and neither the Borrower nor any other Loan Party shall be required to bring down any other representation or warranty as a condition to the consummation of such Limited Condition Acquisition (or the incurrence of any Indebtedness and any other ancillary transaction consummated in connection with such Limited Condition Acquisition)have actually occurred.
Appears in 4 contracts
Samples: Credit Agreement (Indivior PLC), Credit Agreement (Indivior PLC), Credit Agreement (Indivior PLC)
Limited Condition Acquisitions. Notwithstanding anything herein to the contrary, solely (a) Solely in the case of the incurrence consummation of any Indebtedness or Liens or the making of any Investments or consolidations, mergers, divisions, or other fundamental changes, in each case in connection with a Limited Condition Acquisition, if the Borrower has made an LCA Election, (ai) the Total Leverage Ratio, to the extent required to be tested in connection therewith, shall be calculated on a Pro Forma Basis and tested as of the date of execution of the definitive agreement(s) for such Limited Condition Acquisition (as if such transaction and other pro forma events in connection therewith were consummated on such date) (such date, the “LCA Test Date”), (ii) for purposes of determining compliance with any provision of this Agreement which requires that no Default or Event of Default, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall be deemed satisfied, so long as (x) no Event of Default exists on the date of execution of the definitive agreement(s) for such Limited Condition Acquisition LCA Test Date and (y) no Specified Event of Default exists at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and (biii) for purposes of determining compliance with any provision of this Agreement which requires that any of the representations and warranties made by any Loan Credit Party set forth in this Agreement or in any other Loan Credit Document be true and correct, such condition shall be deemed satisfied, so long as (x) the representations and warranties in this Agreement and the other Loan Credit Documents are true and correct in all material respects (without duplication of any materiality qualifier therein) as of the date of execution of the definitive agreement(s) for such Limited Condition Acquisition LCA Test Date and (y) the Specified Representations “specified acquisition representations” (or such similar term as customarily defined in each case, modified solely to the extent necessary to reflect the applicable terms of definitive agreements entered into in connection with such Limited Condition Acquisition as set forth in the definitive agreement(s) governing such transactionAcquisitions) are true and correct in all material respects (without duplication of any materiality qualifier therein), at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and neither ; provided that if the Borrower nor has made an LCA Election, in connection with the calculation of any ratio, other Loan Party shall be required than for purposes of calculating compliance with (A) the Financial Performance Covenant or (B) any basket with respect to bring down any other representation or warranty as a condition to the consummation of such Limited Condition Acquisition (or the incurrence of any Indebtedness (including any Incremental Facility) or Liens, or the making of any Permitted Acquisitions or other Investments, Restricted Payments, Restricted Debt Payments or Disposition of assets on or following such LCA Test Date and prior to the earlier to occur of (x) the date on which such Limited Condition Acquisition is consummated or (y) the definitive agreement for such Limited Condition Acquisition is terminated, any such ratio or basket shall be required to be calculated on a Pro Forma Basis assuming (i) such Limited Condition Acquisition and other pro forma events in connection therewith (including, without limitation, the incurrence of any Indebtedness) have been consummated and (ii) such Limited Condition Acquisition and other pro forma events in connection therewith (including, without limitation, the incurrence of any Indebtedness) have not been consummated, and the Borrower shall be required to meet the applicable ratio or other basket in the case of each of clause (i) and (ii) herein.
(b) If the Borrower has made an LCA Election for any Limited Condition Acquisition, in connection with a Limited Condition Acquisition and any other ancillary transaction consummated transactions (including Indebtedness and Restricted Payments) effected in connection with therewith, Consolidated EBITDA, cash and Cash Equivalents and interest expense shall be determined, for purposes of the relevant incurrence ratios and baskets pursuant to Article IX hereunder, and any Default or Event of Default blocker pursuant to Section 11.01 shall be tested, as of the date the definitive acquisition agreement for such Limited Condition Acquisition)Acquisition is entered into, rather than the date on which such acquisition is consummated.
Appears in 3 contracts
Samples: Credit Agreement (ARKO Corp.), Credit Agreement (ARKO Corp.), Credit Agreement (ARKO Corp.)
Limited Condition Acquisitions. Notwithstanding anything herein to the contrarycontrary contained herein, for purposes of (a)(i) measuring the relevant ratios and baskets, (ii) determining whether a Default or Event of Default (other than any Default under Section 7.01(a), (b), (h) or (i)) exists or would be caused thereby and (iii) determining the accuracy of any representation or warranty, in each case solely in the case of with respect to the incurrence of any Incremental Facility or Indebtedness under Section 6.01(a)(viii), Section 6.01(a)(ix) or Liens or Section 6.01(a)(xxii) for the making purpose of any Investments or consolidations, mergers, divisions, or other fundamental changes, in each case in connection with financing a Limited Condition Acquisition, or (ab) for purposes of determining whether the Limited Condition Acquisition is permitted under this Agreement, compliance with any provision such ratio, basket or other test hereunder on a Pro Forma Basis with respect to the incurrence of this Agreement which requires that no Default or Event of Default, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall be deemed satisfied, so long as (x) no Event Indebtedness or the consummation of Default exists on the date of execution of the definitive agreement(s) for such Limited Condition Acquisition and may be determined, at the option of the Borrower, either (yi) no Specified Event of Default exists at the time of, and immediately after giving effect to, of entry into the applicable acquisition agreement or (ii) at the time of incurrence of such Indebtedness or the consummation of such Limited Condition Acquisition; provided that if the Borrower elects to have such determination occur at the time of entry into the applicable acquisition agreement, such Indebtedness to be incurred shall be deemed incurred at the time of such determination and outstanding thereafter, and (b) such Limited Condition Acquisition will be deemed to have been consummated for four complete fiscal quarters, and be given pro forma effect, for purposes of determining compliance on a Pro Forma Basis with any provision applicable ratio, basket or other test with respect thereto and in connection with the incurrence of this Agreement which requires that any of the representations and warranties made by any Loan Party set forth in this Agreement or in any other Loan Document be true and correctIndebtedness (other than under such Incremental Facility or Indebtedness under Section 6.01(a)(viii), such condition Section 6.01(a)(ix) or Section 6.01(a)(xxii), which shall be deemed satisfiedremain subject to the terms thereof with respect to the impact, so long as (xif any, of a Limited Condition Acquisition) or Liens, or the representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects (without duplication making of any materiality qualifier thereinother Investments, Dispositions or fundamental changes (A) until such time as of the date of execution of the definitive agreement(s) for such Limited Condition Acquisition and (y) the Specified Representations (in each case, modified solely to the extent necessary to reflect the applicable terms of such Limited Condition Acquisition as set forth in the definitive agreement(s) governing such transaction) are true and correct in all material respects (acquisition agreement is terminated without duplication of any materiality qualifier therein), at the time of, and immediately after giving effect to, the consummation of actually consummating such Limited Condition Acquisition, in which case such Incremental Facility or other applicable Indebtedness will not be treated as having been incurred and neither the Borrower nor any other Loan Party shall be required to bring down any other representation or warranty as a condition to the consummation of such Limited Condition Acquisition will not be treated as having occurred or (or the incurrence of any Indebtedness and any other ancillary transaction consummated in connection with B) until such time as such Limited Condition Acquisition)Acquisition is consummated, in which case the actual Incremental Facility or other applicable Indebtedness shall be deemed incurred and outstanding and such acquisition will be deemed to be consummated for purposes of determining compliance on a Pro Forma Basis with any applicable ratio, test or other basket.
Appears in 3 contracts
Samples: Credit Agreement (Virtu Financial, Inc.), Credit Agreement (Virtu Financial, Inc.), Credit Agreement (Virtu Financial, Inc.)
Limited Condition Acquisitions. Notwithstanding anything herein As it relates to the contrary, any action being taken solely in the case of the incurrence of any Indebtedness or Liens or the making of any Investments or consolidations, mergers, divisions, or other fundamental changes, in each case in connection with a Limited Condition Acquisition, (a) for purposes of of:
(i) determining compliance with any provision of this Agreement which requires that no the calculation of any financial ratio or financial test,
(ii) testing availability under baskets set forth in this Agreement (including baskets determined by reference to Consolidated EBITDA or total assets), or
(iii) testing whether a Default or Event of DefaultDefault has occurred and, with respect to any Incremental Term Loan to finance such Limited Condition Acquisition, testing whether any representation or warranty in any Loan Document is correct as of such date, in each case, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Acquisition, an “LCT Election”), the date of determination of whether any such action is permitted hereunder, any such Default or Event of Default exists and any such representation or warranty is correct shall be deemed to be the date the definitive agreements for such Limited Condition Acquisition are entered into (the “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 and the use of proceeds thereof, as applicableif they had occurred on the first day of the most recently ended four fiscal quarter period prior to the LCT Test Date), has occurredthe Borrower or the applicable Restricted Subsidiary would have been permitted to take such action on the relevant LCT Test Date in compliance with such ratio, test or basket, such ratio, test or basket shall be deemed to have been complied with or if no such Default or Event of Default shall exist on such LCT Test Date or such representation or warranty is continuing or would result from any correct as of such action, as applicable, LCT Test Date then such condition shall be deemed satisfied, so long as (x) no Event of Default exists satisfied on the date of execution consummation of such LCT Test Date for purposes of clause (iii) above; provided that if financial statements for one or more subsequent fiscal periods shall have become available, the Borrower may elect, in its sole discretion, to redetermine all such ratios, tests or baskets on the basis of such financial statements, in which case, such date of redetermination shall thereafter be deemed to be the applicable LCT Test Date. For the avoidance of doubt, if the Borrower has made an LCT Election and any of the ratios, tests or baskets for which compliance was determined or tested as of the LCT Test Date would have failed to have been complied with as a result of fluctuations in any such ratio, test or basket, including due to fluctuations in Consolidated EBITDA or total assets of the Borrower or the Person subject to such Limited Condition Acquisition, at or prior to the consummation of the relevant transaction or any Default or Event of Default has occurred and is continuing or any such representation or warranty in any Loan Document is not correct on the date of such Limited Condition Acquisition, such baskets, tests or ratios or requirement will not be deemed to have failed to have been complied with as a result of such circumstance. If the Borrower has made an LCT Election for any Limited Condition Acquisition, then in connection with any calculation of any ratio, test or basket availability with respect to any transaction permitted hereunder (each, a “Subsequent Transaction”) following the relevant LCT Test Date and prior to the earlier of the date on which such Limited Condition Acquisition is consummated or the date that the definitive agreement(s) agreement for such Limited Condition Acquisition and (y) no Specified Event of Default exists at the time of, and immediately after giving effect to, the is terminated or expires without consummation of such Limited Condition Acquisition, and (b) for purposes of determining compliance with whether such Subsequent Transaction is permitted under this Agreement, any provision of this Agreement which requires that any of the representations and warranties made by any Loan Party set forth in this Agreement such ratio, test or in any other Loan Document be true and correct, such condition basket shall be deemed satisfied, so long as (x) the representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects (without duplication of any materiality qualifier therein) as of the date of execution of the definitive agreement(s) for required to be satisfied on a pro forma basis assuming such Limited Condition Acquisition and other transactions in connection therewith (y) the Specified Representations (in each case, modified solely to the extent necessary to reflect the applicable terms of such Limited Condition Acquisition as set forth in the definitive agreement(s) governing such transaction) are true and correct in all material respects (without duplication of including any materiality qualifier therein), at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and neither the Borrower nor any other Loan Party shall be required to bring down any other representation or warranty as a condition to the consummation of such Limited Condition Acquisition (or the incurrence of any Indebtedness and any other ancillary transaction consummated in connection with such Limited Condition Acquisition)the use of proceeds thereof) have been consummated.
Appears in 3 contracts
Samples: Term Loan Credit Agreement (Ardent Health Partners, LLC), Term Loan Credit Agreement (Ardent Health Partners, LLC), Term Loan Credit Agreement (Ardent Health Partners, LLC)
Limited Condition Acquisitions. Notwithstanding anything herein As it relates to the contrary, any action being taken solely in the case of the incurrence of any Indebtedness or Liens or the making of any Investments or consolidations, mergers, divisions, or other fundamental changes, in each case in connection with a Limited Condition Acquisition, (a) for purposes of of:
(i) determining compliance with any provision of this Agreement which requires that no the calculation of any financial ratio or financial test,
(i) testing availability under baskets set forth in this Agreement (including baskets determined by reference to EBITDA or Total Assets), or
(ii) testing whether a Default or Event of DefaultDefault has occurred and, with respect to any New Term Loan to finance such Limited Condition Acquisition, testing whether any representation or warranty in any Loan Document is correct as of such date, in each case, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Acquisition, an “LCT Election”), the date of determination of whether any such action is permitted hereunder, any such Default or Event of Default exists and any such representation or warranty is correct shall be deemed to be the date the definitive agreements for such Limited Condition Acquisition are entered into (the “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 and the use of proceeds thereof, as applicableif they had occurred on the first day of the most recently ended Test Period prior to the LCT Test Date), has occurredthe Borrower or the applicable Restricted Subsidiary would have been permitted to take such action on the relevant LCT Test Date in compliance with such ratio, test or basket, such ratio, test or basket shall be deemed to have been complied with or if no such Default or Event of Default shall exist on such LCT Test Date or such representation or warranty is continuing or would result from any correct as of such action, as applicable, LCT Test Date then such condition shall be deemed satisfied, so long as (x) no Event of Default exists satisfied on the date of execution consummation of such LCT Test Date for purposes of clause (iii) above; provided that if financial statements for one or more subsequent fiscal periods shall have become available, the Borrower may elect, in its sole discretion, to redetermine all such ratios, tests or baskets on the basis of such financial statements, in which case, such date of redetermination shall thereafter be deemed to be the applicable LCT Test Date. For the avoidance of doubt, if the Borrower has made an LCT Election and any of the ratios, tests or baskets for which compliance was determined or tested as of the LCT Test Date would have failed to have been complied with as a result of fluctuations in any such ratio, test or basket, including due to fluctuations in EBITDA or Total Assets of the Borrower or the Person subject to such Limited Condition Acquisition, at or prior to the consummation of the relevant transaction or any Default or Event of Default has occurred and is continuing or any such representation or warranty in any Loan Document is not correct on the date of such Limited Condition Acquisition, such baskets, tests or ratios or requirement will not be deemed to have failed to have been complied with as a result of such circumstance; however, if any ratios improve or baskets increase as a result of such fluctuations, such improved ratios or baskets may be utilized. If the Borrower has made an LCT Election for any Limited Condition Acquisition, then in connection with any calculation of any ratio, test or basket availability with respect to any transaction permitted hereunder (each, a “Subsequent Transaction”) following the relevant LCT Test Date and prior to the earlier of the date on which such Limited Condition Acquisition is consummated or the date that the definitive agreement(s) agreement for such Limited Condition Acquisition and (y) no Specified Event of Default exists at the time of, and immediately after giving effect to, the is terminated or expires without consummation of such Limited Condition Acquisition, and (b) for purposes of determining compliance with whether such Subsequent Transaction is permitted under this Agreement, any provision of this Agreement which requires that any of the representations and warranties made by any Loan Party set forth in this Agreement such ratio, test or in any other Loan Document be true and correct, such condition basket shall be deemed satisfied, so long as (x) the representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects (without duplication of any materiality qualifier therein) as of the date of execution of the definitive agreement(s) for required to be satisfied on a pro forma basis assuming such Limited Condition Acquisition and other transactions in connection therewith (y) the Specified Representations (in each case, modified solely to the extent necessary to reflect the applicable terms of such Limited Condition Acquisition as set forth in the definitive agreement(s) governing such transaction) are true and correct in all material respects (without duplication of including any materiality qualifier therein), at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and neither the Borrower nor any other Loan Party shall be required to bring down any other representation or warranty as a condition to the consummation of such Limited Condition Acquisition (or the incurrence of any Indebtedness and any other ancillary transaction consummated in connection with such Limited Condition Acquisition)the use of proceeds thereof) have been consummated.
Appears in 3 contracts
Samples: Credit Agreement, Incremental Facility Amendment (Clean Harbors Inc), Credit Agreement (Clean Harbors Inc)
Limited Condition Acquisitions. Notwithstanding anything herein the foregoing provisions of this Section 2.22 or in any other provision of any Loan Document:
(i) if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, the conditions precedent to Lead Borrower’s right to request such Incremental Facility for a Limited Condition Acquisition shall be limited to the contraryfollowing: (a) on the date of the signing of the definitive acquisition agreement for such Limited Condition Acquisition, solely (x) no Event of Default shall have occurred and be continuing (y) each of the representations and warranties contained in the Loan Documents shall be true and correct in all material respects (except (I) with respect to representations and warranties expressly made as of an earlier date, in which case such representations and warranties were true and correct in all material respects as of such earlier date and (II) that if any such representation or warranty contains any materiality qualifier, such representation or warranty shall be true and correct in all respects); and (b) at the date of closing of such Limited Condition Acquisition and the funding of the applicable Incremental Facility, (A) no Event of Default under Section 7.01(a), (f) or (g) shall have occurred and be continuing, (B) the only representations and warranties the accuracy of which shall be a condition to funding such advance shall be the customary specified representations and the customary specified acquisition agreement representations agreed between the Lead Borrower and the Lenders providing such Incremental Facility; and
(ii) in the case of the incurrence of any Indebtedness indebtedness or Liens liens or the making of any Investments investments, restricted payments, prepayments of subordinated or consolidationsjunior debt, mergers, divisions, asset sales or other fundamental changes, in each case changes or the designation of any restricted subsidiaries or unrestricted subsidiaries in connection with a Limited Condition Acquisition, (a) for purposes at the Lead Borrower’s option, the relevant ratios and baskets shall be determined, and any default or event of determining compliance with any provision of this Agreement which requires that no Default or Event of Defaultdefault blocker shall be tested, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall be deemed satisfied, so long as (x) no Event of Default exists on the date of execution of the definitive agreement(s) acquisition agreements for such Limited Condition Acquisition and (y) no Specified Event of Default exists at are entered into and, subject to the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and (b) for purposes of determining compliance with any provision of this Agreement which requires that any of the representations and warranties made by any Loan Party set forth second proviso contained in this Agreement or clause (ii), calculated as if the acquisition and other pro forma events in any other Loan Document be true and correctconnection therewith were consummated on such date; provided that if the Lead Borrower has made such an election, such condition shall be deemed satisfied, so long as (x) in connection with the representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects (without duplication calculation of any materiality qualifier therein) as ratio or basket with respect to the incurrence of any debt or liens, or the making of any investments, restricted payments, prepayments of subordinated, junior or unsecured debt, asset sales, fundamental changes or the designation of a restricted subsidiary or unrestricted subsidiary r following such election and prior to the earlier of the date of execution of on which such acquisition is consummated or the definitive agreement(sagreement for such acquisition is terminated, any such ratio shall, subject to the proviso below, be calculated on a pro forma basis assuming such acquisition and other pro forma events in connection therewith (including any incurrence of indebtedness) for have been consummated; provided that the consolidated net income (and any other financial defined term derived therefrom) shall not include any consolidated net income of or attributable to the target company or assets associated with any such Limited Condition Acquisition unless and (y) until the Specified Representations (in each case, modified solely to the extent necessary to reflect the applicable terms closing of such Limited Condition Acquisition as set forth in the definitive agreement(s) governing such transaction) are true and correct in all material respects (without duplication of any materiality qualifier therein), at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and neither the Borrower nor any other Loan Party shall be required to bring down any other representation or warranty as a condition to the consummation of such Limited Condition Acquisition (or the incurrence of any Indebtedness and any other ancillary transaction consummated in connection with such Limited Condition Acquisition)have actually occurred.
Appears in 3 contracts
Samples: Credit Agreement (SB/RH Holdings, LLC), Credit Agreement (SB/RH Holdings, LLC), Credit Agreement (SB/RH Holdings, LLC)
Limited Condition Acquisitions. Notwithstanding anything herein to In the contrary, solely event that the Borrowers notify the Administrative Agent in the case of the incurrence of writing that any Indebtedness or Liens or the making of any Investments or consolidations, mergers, divisions, or other fundamental changes, in each case in connection with proposed acquisition is a Limited Condition AcquisitionAcquisition and that the Borrowers wish to test the conditions to such acquisition and the Indebtedness that is to be used to finance such acquisition in accordance with this Section 1.13, then the following provisions shall apply:
(a) for purposes of determining compliance with any provision of this Agreement which condition to such Limited Condition Acquisition or such Indebtedness that requires that no Default or Event of DefaultDefault shall have occurred and be continuing at the time of such Limited Condition Acquisition or the incurrence of such Indebtedness, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall be deemed satisfiedsatisfied if (i) no Default or Event of Default shall have occurred and be continuing at the time of the execution of the definitive purchase agreement, so long as merger agreement or other acquisition agreement governing such Limited Condition Acquisition (xthe “LCA Test Date”) and (ii) no Event of Default exists on the date under any of execution of the definitive agreement(sSection 9.1(a), 9.1(g) for or 9.1(l) shall have occurred and be continuing both immediately before and immediately after giving effect to such Limited Condition Acquisition and any Indebtedness incurred in connection therewith (yincluding any such additional Indebtedness);
(b) no Specified Event of Default exists any condition to such Limited Condition Acquisition or such Indebtedness that the representations and warranties in this Agreement and the other Loan Documents shall be true and correct at the time of, and immediately after giving effect to, the of consummation of such Limited Condition Acquisition, and (b) for purposes Acquisition or the incurrence of determining compliance with any provision of this Agreement which requires that any of the representations and warranties made by any Loan Party set forth in this Agreement or in any other Loan Document be true and correct, such condition Indebtedness shall be deemed satisfied, so long as satisfied if (xi) the all representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects (without duplication except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects) as of any materiality qualifier thereinthe LCA Test Date, or if such representation speaks as of an earlier date, as of such earlier date and (ii) as of the date of execution consummation of the definitive agreement(s) for such Limited Condition Acquisition and Acquisition, (yA) the Specified Representations (in each case, modified solely to representations and warranties under the extent necessary to reflect the applicable terms of relevant definitive agreement governing such Limited Condition Acquisition as set forth in are material to the definitive agreement(s) governing lenders providing such transaction) are Indebtedness shall be true and correct in all material respects (without duplication except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects), but only to the extent that the applicable Borrower or its applicable Subsidiary has the right to terminate its obligations under such agreement or otherwise decline to close such Limited Condition Acquisition as a result of a breach of such representations and warranties or the failure of those representations and warranties to be true and correct and (B) the representations and warranties set forth in Sections 5.1, 5.2, 5.6, 5.8, 5.10, 5.23, 5.24, 5.28, 5.31, and 5.33 shall be true and correct in all material respects (except for any representation and warranty that is qualified by materiality qualifier thereinor reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects);
(c) at the Primary Borrower’s option, any financial ratio test or condition to be tested in connection with such Limited Condition Acquisition or the availability of such Indebtedness will be tested as of the LCA Test Date, in each case, after giving effect to the relevant Limited Condition Acquisition and related incurrence of Indebtedness, on a pro forma basis where applicable, and, for the avoidance of doubt, (i) such ratios and baskets shall not be tested at the time of consummation of such Limited Condition Acquisition and (ii) if any of such ratios are exceeded or conditions are not met following the LCA Test Date, but prior to the closing of such Limited Condition Acquisition, as a result of fluctuations in such ratio or amount (including due to fluctuations in Consolidated EBITDA of the Borrowers or the Person subject to such Limited Condition Acquisition), at or prior to the time ofconsummation of the relevant transaction or action, such ratios will not be deemed to have been exceeded and immediately after giving effect tosuch conditions will not be deemed unmet as a result of such fluctuations solely for purposes of determining whether the relevant transaction or action is permitted to be consummated or taken;
(d) except as provided in the next sentence, in connection with any subsequent calculation of any ratio or basket on or following the relevant LCA Test Date and prior to the earlier of the date on which such Limited Condition Acquisition is consummated and the date that the definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition, and neither the Borrower nor any other Loan Party such ratio or basket shall be required to bring down any other representation or warranty as calculated (i) on a condition to the consummation of pro forma basis assuming such Limited Condition Acquisition and other transactions in connection therewith (or including the incurrence or assumption of Indebtedness) have been consummated and (ii) assuming such Limited Condition Acquisition and other transactions in connection therewith (including the incurrence or assumption of Indebtedness) have not been consummated. Notwithstanding the foregoing, any Indebtedness and any other ancillary transaction consummated calculation of a ratio in connection with determining the Applicable Interest Rate and determining whether or not the Borrower is in compliance with the financial covenants set forth in Section 6.15 shall, in each case be calculated assuming such Limited Condition Acquisition)Acquisition and other transactions in connection therewith (including the incurrence or assumption of Indebtedness) have not been consummated.
(e) The foregoing provisions shall apply with similar effect during the pendency of multiple Limited Condition Acquisitions such that each of the possible scenarios is separately tested
Appears in 2 contracts
Samples: Business Loan and Security Agreement (Vse Corp), Business Loan and Security Agreement (Vse Corp)
Limited Condition Acquisitions. Notwithstanding anything herein the foregoing provisions of this Section 2.23 or any other provision of this Agreement or any Incremental Loan Assumption Agreement:
(i) if the proceeds of any Incremental Loan are intended to be applied to finance a Limited Condition Acquisition, to the contraryextent the Lenders providing such Incremental Loans agree, solely the conditions precedent to Borrower’s right to request such Incremental Loan for a Limited Condition Acquisition may be limited to the following: at the date of closing of such Limited Condition Acquisition and the funding of the applicable Incremental Loan, (A) no Event of Default under clause (a), (h) or (i) of Article VII shall have occurred and be continuing, (B) the only representations and warranties the accuracy of which shall be a condition to funding such advance shall be the customary “specified representations” and the representations of the seller or the target company (as applicable) included in the acquisition agreement related to such Limited Condition Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Restricted Subsidiary has the right to terminate its obligations under such acquisition agreement or decline to consummate such Limited Condition Acquisition as a result of a failure of such representations to be accurate, and
(ii) in the case of the incurrence of any Indebtedness or Liens or the making of any Investments Investments, Restricted Payments, prepayments of Indebtedness, Dispositions or consolidations, mergers, divisions, fundamental changes or other fundamental changes, in each case the designation of any Unrestricted Subsidiaries in connection with a Limited Condition Acquisition, (a) for purposes the relevant ratios and baskets shall be determined, and any condition regarding the absence of determining compliance with any provision of this Agreement which requires that no Default or Event of DefaultDefault shall be tested, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall be deemed satisfied, so long as (x) no Event of Default exists on the date of execution of the definitive agreement(s) acquisition agreements for such Limited Condition Acquisition are entered into and (y) no Specified Event of Default exists at calculated as if the time of, acquisition and immediately after other pro forma events in connection therewith were consummated on such date and giving effect toon a pro forma basis thereto and to any other asset sales or other dispositions or investments or acquisitions or pro forma events, as the consummation case may be, in the manner described under the definition of “Fixed Charge Coverage Ratio”; provided that in connection with the calculation of any ratio or basket with respect to the incurrence of any Indebtedness or Liens or the making of any Investments, Restricted Payments, prepayments of Indebtedness, Dispositions or fundamental changes or the designation of any Unrestricted Subsidiary on or following such date and prior to the earlier of the date on which such Limited Condition Acquisition, and (b) for purposes of determining compliance with any provision of this Agreement which requires that any of the representations and warranties made by any Loan Party set forth in this Agreement Acquisition is consummated or in any other Loan Document be true and correct, such condition shall be deemed satisfied, so long as (x) the representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects (without duplication of any materiality qualifier therein) as of the date of execution of the definitive agreement(s) agreements for such Limited Condition Acquisition and (y) the Specified Representations (in each caseis terminated, modified solely with respect to the extent necessary to reflect the applicable terms of any such Limited Condition Acquisition as set forth in the definitive agreement(s) governing such transaction) are true and correct in all material respects (without duplication of any materiality qualifier therein), at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and neither the Borrower nor any transaction other Loan Party shall be required to bring down any other representation or warranty as a condition to the consummation of such Limited Condition Acquisition (or the incurrence of any Indebtedness and any other ancillary transaction consummated than in connection with such Limited Condition Acquisition), any such ratio shall be calculated on a pro forma basis in the manner described above (A) assuming such Limited Condition Acquisition and other pro forma events in connection therewith (including any incurrence of Indebtedness) have been consummated and (B) assuming such Limited Condition Acquisition and other pro forma events in connection therewith (including any incurrence of indebtedness) have not been consummated.
Appears in 2 contracts
Samples: Credit Agreement (Office Depot Inc), Credit Agreement (Office Depot Inc)
Limited Condition Acquisitions. Notwithstanding anything herein in this Agreement or any Loan Document to the contrary, solely when (i) calculating any applicable ratio or basket amount in the case of the connection with incurrence of any Indebtedness or Indebtedness, the creation of Liens or the making of an Investment (including any Investments or consolidations, mergers, divisionsAsset Acquisition), or other fundamental changes, in each case in connection with a Limited Condition Acquisition, (aii) for purposes of determining compliance with any provision of this Agreement which requires that no Default or Event of Default, as applicable, Default has occurred, is continuing or would result from therefrom and/or that representations and warranties be true and correct, in the case of each of clauses (i) and (ii) in connection with a Limited Condition Acquisition, the date of determination of such ratio, of whether any such action, as applicable, such condition shall be deemed satisfied, so long as (x) no Default or Event of Default exists on (other than an Event of Default pursuant to Sections 7.01(a), (b) or (g)) has occurred, is continuing or would result therefrom and whether the representations and warranties are true and correct shall, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Acquisition, an “LCA Election”), be deemed to be the date of execution of the definitive agreement(s) agreements for such Limited Condition Acquisition are entered into (the “LCA Test Date”). If on a pro forma basis after giving effect to such Limited Condition Acquisition and the other transactions to be entered into in connection therewith (yincluding any incurrence of Indebtedness and the use of proceeds thereof) no Specified such ratios and other provisions are calculated as if such Limited Condition Acquisition or other transactions had occurred as of the first day of the most recent four fiscal quarter period ending prior to such LCA Test Date for which financial statements have been or were required to be delivered pursuant to Section 6.01(a) or (b) (or, prior to the delivery of any such financials statements, the latest financial statements referred to in Section 5.05), the Borrower could have taken such action on the relevant LCA Test Date in compliance with the applicable ratios or other provisions, such provisions shall be deemed to have been complied with, unless an Event of Default exists pursuant to Sections 7.01(a), (b) or (g) shall be continuing on the date such Limited Condition Acquisition is consummated. For the avoidance of doubt, (i) if any of such ratios or other provisions are exceeded or breached as a result of fluctuations in such ratio (including due to fluctuations in Consolidated EBITDA) or other provisions at or prior to the consummation of the relevant Limited Condition Acquisition, such ratios and other provisions will not be deemed to have been exceeded as a result of such fluctuations solely for purposes of determining whether the Limited Condition Acquisition is permitted hereunder and (ii) such ratios and compliance with such conditions shall not be tested at the time of, and immediately after giving effect to, the of consummation of such Limited Condition Acquisition, and unless on such date an Event of Default pursuant to Sections 7.01(a), (b) or (g) shall be continuing. If the Borrower has made an LCA Election for purposes of determining compliance any Limited Condition Acquisition, then in connection with any provision subsequent calculation of this Agreement which requires that any of the representations and warranties made by any Loan Party set forth in this Agreement ratio or in basket availability with respect to any other Loan Document be true Limited Condition Acquisition on or following the relevant LCA Test Date and correct, such condition shall be deemed satisfied, so long as (x) prior to the representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects (without duplication of any materiality qualifier therein) as earlier of the date of execution of on which such Limited Condition Acquisition is consummated or the date that the definitive agreement(s) agreement for such Limited Condition Acquisition and (y) the Specified Representations (in each case, modified solely to the extent necessary to reflect the applicable terms of such Limited Condition Acquisition as set forth in the definitive agreement(s) governing such transaction) are true and correct in all material respects (is terminated or expires without duplication of any materiality qualifier therein), at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, any such ratio or basket shall be calculated, and neither the Borrower nor any other Loan Party shall be required to bring down any other representation or warranty as be satisfied, on a condition to the consummation of pro forma basis assuming such Limited Condition Acquisition and other transactions in connection therewith (or the including any incurrence of any Indebtedness and any other ancillary transaction consummated in connection with such Limited Condition Acquisition)the use of proceeds thereof) have been consummated.
Appears in 2 contracts
Samples: Credit Agreement (Callaway Golf Co), Credit Agreement (Callaway Golf Co)
Limited Condition Acquisitions. Notwithstanding anything herein to the contrarycontrary herein, solely in for purposes of determining (i) compliance on a pro forma basis with the case of Senior Secured Net Leverage Ratio or Total Net Leverage Ratio, (ii) the incurrence amount of any Indebtedness basket set forth in Article VI hereof or Liens (iii) whether a Default or the making Event of any Investments or consolidations, mergers, divisions, or Default has occurred (other fundamental changesthan a Specified Default) and is continuing, in each case case, in connection with the consummation of a Limited Condition Acquisition, (a) for purposes of determining compliance with any provision of this Agreement which requires that no Default or Event of Default, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall be deemed satisfied, so long as (x) no Event of Default exists on the date of execution such determination shall, at the election of the Borrower, be the time the definitive agreement(s) agreements for such Limited Condition Acquisition are entered into after giving pro forma effect to such Limited Condition Acquisition and the other transactions to be entered into in connection therewith (y) no Specified Event including any incurrence of Default exists Indebtedness and the use of proceeds thereof), in each case, as if such transactions occurred at the time ofbeginning of the applicable test period, and immediately after giving effect toand, for the consummation avoidance of doubt, if any of such ratios or amounts are exceeded as a result of fluctuations in such ratio or amount including due to fluctuations in EBITDA of the Borrower or the Person subject to such Limited Condition Acquisition, and (b) at or prior to the consummation of the relevant transaction, such ratios will not be deemed to have been exceeded as a result of such fluctuations solely for purposes of determining compliance whether the relevant transaction is permitted to be consummated or taken; provided, that if the Borrower elects to have such determinations occur at the time of entry into the definitive agreement with respect to such Limited Condition Acquisition, the Indebtedness to be incurred (and any provision of this Agreement which requires that any of the representations and warranties made by any Loan Party set forth in this Agreement or in any other Loan Document be true and correct, such condition associated lien) shall be deemed satisfied, so long incurred at the time of such election (until such time as the Indebtedness is actually incurred or the applicable acquisition agreement is terminated without actually consummating the applicable Limited Condition Acquisition (x) the representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects (without duplication of any materiality qualifier therein) as of the date of execution of the definitive agreement(s) for which case such Limited Condition Acquisition and the incurrence of related Indebtedness will not be treated as having occurred)) and outstanding thereafter for purposes of pro forma compliance with any applicable ratios, tests or other baskets, as the case may be (y) other than any ratios, tests or baskets relating to permitting Restricted Payments or prepayment of Junior Debt); provided, that, any applicable ratios, tests or other baskets with respect to permitting any Restricted Payments or prepayment of Junior Debt to be made during the Specified Representations (in each case, modified solely to period commencing from the extent necessary to reflect the applicable terms time of entry into such definitive agreement until such time as such Limited Condition Acquisition is consummated and any related Indebtedness is actually incurred or the applicable acquisition agreement is terminated without actually consummating the applicable acquisition (in which case the acquisition and related Indebtedness will not be treated as set forth in the definitive agreement(shaving occurred) governing such transaction) are true and correct in all material respects (without duplication of any materiality qualifier therein), at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and neither the Borrower nor any other Loan Party shall be required to bring down any other representation or warranty as a condition be complied with using calculations without giving pro forma effect to the consummation of such Limited Condition Acquisition (or the and any associated incurrence of any Indebtedness and any other ancillary transaction consummated in connection with such Limited Condition Acquisition)Indebtedness.
Appears in 2 contracts
Samples: Credit Agreement (Etsy Inc), Credit Agreement (Etsy Inc)
Limited Condition Acquisitions. Notwithstanding anything herein to the contrary, solely foregoing provisions of this Section 2.14 or in the case any other provision of the incurrence Loan Document, unless otherwise agreed by the Borrower, the Administrative Agent and the Lenders providing the applicable Incremental Term Loans, if the proceeds of any Indebtedness or Liens or Incremental Term Loans are intended to fund a Permitted Acquisition substantially concurrently with the making of any Investments or consolidationsreceipt thereof (a “Limited Condition Acquisition”), mergers, divisions, or other fundamental changes, in each case in connection with the conditions precedent to Borrower’s right to request such Incremental Facility for a Limited Condition Acquisition, Acquisition shall be limited to the following: (a) on the date of the signing of the definitive acquisition agreement for purposes of determining compliance with any provision of this Agreement which requires that no Default or Event of Default, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall be deemed satisfied, so long as Limited Condition Acquisition (x) no Event of Default exists on the date of execution of the definitive agreement(s) for such Limited Condition Acquisition shall have occurred and be continuing (y) no Specified Event of Default exists at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and (b) for purposes of determining compliance with any provision of this Agreement which requires that any each of the representations and warranties made by any contained in the Loan Party set forth in this Agreement or in any other Loan Document be true and correct, such condition Documents shall be deemed satisfied, so long as (x) the representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects (without duplication of any materiality qualifier thereinexcept (I) with respect to representations and warranties expressly made as of the date of execution of the definitive agreement(s) for an earlier date, in which case such Limited Condition Acquisition representations and (y) the Specified Representations (in each case, modified solely to the extent necessary to reflect the applicable terms of such Limited Condition Acquisition as set forth in the definitive agreement(s) governing such transaction) are warranties must be true and correct in all material respects (without duplication of any materiality qualifier therein), at the time of, and immediately after giving effect to, the consummation as of such Limited Condition Acquisition, earlier date and neither the Borrower nor (II) if any other Loan Party shall be required to bring down any other such representation or warranty as a condition to contains any materiality qualifier, such representation or warranty shall be true and correct in all respects); and (b) at the consummation date of closing of such Limited Condition Acquisition and the funding of the applicable Incremental Facility, (A) no Event of Default under Section 7.01(a), (f) or (g) shall have occurred and be continuing and (B) the incurrence only representations and warranties the accuracy of which shall be a condition to funding such Incremental Facility shall be the Specified Representations and the representations and warranties contained in the purchase agreement relating to such Permitted Acquisition as are material to the interests of the Lenders but only to the extent that the Borrower or any Indebtedness of its Affiliates have the right to terminate its or their obligations under such purchase agreement as a result of a breach of such representations and any other ancillary transaction consummated warranties in connection with such Limited Condition Acquisition)purchase agreement.
Appears in 2 contracts
Samples: Term Loan Credit Agreement, Term Loan Credit Agreement (Jill Intermediate LLC)
Limited Condition Acquisitions. Notwithstanding anything herein to the contrary, solely in the case of (a) In connection with the incurrence of any Indebtedness or Liens or the making of any Investments or consolidations, mergers, divisions, or other fundamental changes, in each case in connection with a Limited Condition AcquisitionAcquisition (any of the foregoing, (a) an “LCA Action” and collectively, the “LCA Actions”), for purposes of determining compliance with any provision of this Agreement which requires that no Default or Event of Default, as applicable, has occurred, Default is continuing or would result from any such actionLCA Action, or that the representations and warranties shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects), as applicable, such condition shall, at the election of the Borrower (the Borrower’s written election to exercise such option in connection with any Limited Condition Acquisition, an “LCA Election”, which shall be provided to the Administrative Agent prior to entering into the definitive documentation governing such Limited Condition Acquisition), be deemed satisfied, so long as (xi) no Default or Event of Default exists, (ii) the representations and warranties are true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects), in each case with respect to clauses (i) and (ii), on and as of the date the definitive agreements for such Limited Condition Acquisition are entered into (the “LCA Test Date”), except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) as of such earlier date, and (iii) no Event of Default exists under Section 8.1(a), (g) (solely with respect to Holdings or the Borrower) or (h) shall have occurred and is continuing on the effective date of execution such LCA Action. For the avoidance of doubt, if the definitive agreement(s) for such Limited Condition Acquisition Borrower has exercised the LCA Election and (y) no Specified any Default or Event of Default exists at occurs (including as a result of the time of, representations and immediately after giving effect to, warranties not being true and correct) following the LCA Test Date and prior to the consummation of such Limited Condition Acquisition, and any such Default or Event of Default shall be deemed to not have occurred or be continuing for purposes of determining whether any LCA Action being taken in connection with such Limited Condition Acquisition is permitted hereunder.
(b) In connection with any LCA Action, for purposes of of:
(i) determining compliance with any provision of this Agreement which requires that any the calculation of the representations and warranties made by any Loan Party financial covenants set forth in Article VI; or
(ii) testing baskets set forth in this Agreement Agreement; in each case, upon the LCA Election, the date of determination of whether any such action is permitted hereunder, shall be the LCA Test Date, and if, after giving effect to the Limited Condition Acquisition and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) on a Pro Forma Basis as if they had occurred at the beginning of the Applicable Period then most recently ended prior to the LCA Test Date for which consolidated financial statements of Holdings are available, the Loan Parties could have taken such action on the relevant LCA Test Date in compliance with such ratio or in any other Loan Document be true and correctbasket, such condition ratio or basket shall be deemed satisfiedto have been complied with, so long as (xunless an Event of Default pursuant to Section 8.1(a) or 8.1(b), or, solely with respect to Holdings or the representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects (without duplication of any materiality qualifier thereinBorrower, Section 8.1(g) as of or 8.1(h) shall be continuing on the date of execution of the definitive agreement(s) for such Limited Condition Acquisition is consummated. For the avoidance of doubt, (A) if the Borrower has made an LCA Election and (y) any of the Specified Representations (ratios or baskets for which compliance was determined or tested as of the LCA Test Date are exceeded as a result of fluctuations in each caseany such ratio or basket, modified solely including due to fluctuations in Consolidated EBITDA of the extent necessary Borrower or the Person subject to reflect the applicable terms of such Limited Condition Acquisition Acquisition, at or prior to the consummation of the relevant transaction or action, such baskets or ratios will not be deemed to have been exceeded as set forth in the definitive agreement(sa result of such fluctuations, and (B) governing such transaction) are true ratios, baskets and correct in all material respects (without duplication of any materiality qualifier therein), compliance with such conditions shall not be tested at the time of, and immediately after giving effect to, the of consummation of such Limited Condition Acquisition, and neither unless, other than if an Event of Default pursuant to Section 8.1(a) or 8.1(b), or, solely with respect to Holdings or the Borrower, Section 8.1(g) or 8.1(h) shall be continuing on such date, the Borrower nor elects, in its sole discretion, to test such ratios and compliance with such conditions on the date such Limited Condition Acquisition is consummated. If the Borrower has made an LCA Election for any Limited Condition Acquisition, then in connection with any subsequent calculation of any ratio or basket availability with respect to the incurrence of any Indebtedness or Liens or the making of any Investments, Restricted Payments, prepayments of Indebtedness, Asset Sales, fundamental changes or any other Loan Party shall be required to bring down any other representation purpose, in each case on or warranty as a condition 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 Acquisition, any such ratio or basket shall be calculated both: (or the incurrence of any Indebtedness and any other ancillary transaction consummated in connection with I) on a Pro Forma Basis assuming such Limited Condition Acquisition)Acquisition and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated; and (II) assuming such Limited Condition Acquisition and other transactions in connection therewith have not been consummated.
Appears in 2 contracts
Samples: Credit Agreement (Rotech Healthcare Holdings Inc.), Credit Agreement (Rotech Healthcare Holdings Inc.)
Limited Condition Acquisitions. Notwithstanding anything herein in this Agreement or any Loan Document to the contrary, solely when (i) calculating any applicable ratio in the case of connection with the incurrence of any Indebtedness or Liens or Indebtedness, the creation of Liens, the making of any Investments Asset Sale, the making of an Investment, the making of a Restricted Payment, the prepayment of Permitted Junior Debt, the designation of a Subsidiary as restricted or consolidationsunrestricted or the repayment of Indebtedness (each of the foregoing, mergers, divisions, or other fundamental changes, in each case in connection with a Limited Condition Acquisition“Specified Transaction”), (aii) for purposes of determining compliance with any provision of this Agreement which requires that no Default or Event of Default, as applicable, Default has occurred, is continuing or would result from any such action, as applicable, such condition shall be deemed satisfied, so long as therefrom (x) no other than a Default or Event of Default exists on the date of execution of the definitive agreement(spursuant to Section 7.01(b), (c), (h) for such Limited Condition Acquisition and or (yi)), (iii) no Specified Event of Default exists at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and (b) for purposes of determining compliance with any provision of this Agreement which requires that compliance with any of the representations and warranties made by any Loan Party set forth in this Agreement herein and only to the extent that the failure of such representation or in any other Loan Document warranty to be true and correctcorrect would result in a failure of a condition precedent to the obligation of the Borrower or any Restricted Subsidiary to consummate such Specified Transaction, such condition shall be deemed satisfied, so long as or (xiv) the representations and warranties satisfaction of all other conditions precedent to any other Specified Transaction, in this Agreement and the other Loan Documents are true and correct each case, in all material respects (without duplication of any materiality qualifier therein) as of connection with a Limited Condition Acquisition, the date of execution determination of such ratio, determination of whether any Default or Event of Default has occurred, is continuing or would result therefrom (other than a Default or Event of Default pursuant to Section 7.01(b), (c), (h) or (i)), determination of compliance with any representations or warranties or satisfaction of any other condition shall, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Acquisition, an “LCA Election”), be deemed to be the date the definitive agreement(s) agreements for such Limited Condition Acquisition are entered into (the “LCA Test Date”). If on a Pro Forma Basis after giving effect to such Limited Condition Acquisition and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) such ratios and other provisions are calculated as if such Limited Condition Acquisition or other transactions had occurred at the beginning of the most recent Test Period ending prior to the LCA Test Date for which financial statements are available to the Administrative Agent, the Borrower could have taken such action on the relevant LCA Test Date in compliance with the applicable ratios or other provisions, such provisions shall be deemed to have been complied with, unless an Event of Default pursuant to Section 7.01(b), (c), (h) or (i) shall be continuing on the date such Limited Condition Acquisition is consummated. For the avoidance of doubt, if an LCA Election is made, (i) if any of such ratios or other provisions are exceeded or breached as a result of fluctuations in such ratio (including due to fluctuations in EBITDA) or other provisions at or prior to the consummation of the relevant Limited Condition Acquisition, such ratios and other provisions will not be deemed to have been exceeded as a result of such fluctuations solely for purposes of determining whether the Limited Condition Acquisition is permitted hereunder and (yii) such ratios and compliance with such conditions shall not be tested at the Specified Representations (in each case, modified solely to the extent necessary to reflect the applicable terms time of consummation of such Limited Condition Acquisition as set forth and related Specified Transactions. If the Borrower has made an LCA Election for any Limited Condition Acquisition, then in connection with any subsequent calculation of any ratio or basket availability with respect to any other Specified Transaction on or following the relevant LCA Test Date and prior to the earlier of the date on which such Limited Condition Acquisition is consummated or the date that the definitive agreement(s) governing agreement for such transaction) are true and correct in all material respects (Limited Condition Acquisition is terminated or expires without duplication of any materiality qualifier therein), at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and neither the Borrower nor any other Loan Party such ratio or basket shall be required to bring down any other representation or warranty as calculated both (i) on a condition to the consummation of Pro Forma Basis assuming such Limited Condition Acquisition and other related Specified Transactions in connection therewith (or the including any incurrence of any Indebtedness and the use of proceeds thereof) have been consummated and (ii) assuming such Limited Condition Acquisition and other related Specified Transactions have not been consummated; provided that, for purposes of any other ancillary transaction consummated such calculation pursuant to the preceding clause (i), Consolidated Interest Expense will be calculated using an assumed interest rate for the Indebtedness to be incurred in connection with such Limited Condition Acquisition)Acquisition based on the indicative interest margin contained in any financing commitment documentation with respect to such Indebtedness or, if no such indicative interest margin exists, as reasonably determined by the Borrower in good faith.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Nuance Communications, Inc.), Revolving Credit Agreement (Nuance Communications, Inc.)
Limited Condition Acquisitions. Notwithstanding anything herein to the contrarycontrary herein, solely in to the case extent that the terms of this Agreement require (i) compliance with any basket, financial ratio or test (including any Consolidated Leverage Ratio test or any Consolidated Interest Coverage Ratio test), (ii) the incurrence absence of any Indebtedness a Default or Liens or the making an Event of any Investments or consolidations, mergers, divisionsDefault, or (iii) a determination as to whether the representations and warranties contained in this Agreement or any other fundamental changesLoan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct, in each case in connection with the consummation of a Limited Condition Acquisition, the determination of whether the relevant condition is satisfied may be made, at the election of the Company, (aA) for purposes on the date of determining compliance the execution of the definitive agreement with respect to such Limited Condition Acquisition (such date, the “LCA Test Date”), or (B) on the date on which such Limited Condition Acquisition is consummated, in either case, after giving effect to the relevant Limited Condition Acquisition and any related incurrence of Indebtedness, on a pro forma basis; provided, that, notwithstanding the foregoing, in connection with any provision Limited Condition Acquisition: (1) the condition set forth in clause (iii) of this Agreement which requires that no Default or Event the definition of Default, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition “Permitted Acquisition” shall be deemed satisfied, so long as satisfied if (x) no Event of Default exists on the date of execution shall have occurred and be continuing as of the definitive agreement(s) for such Limited Condition Acquisition applicable LCA Test Date, and (y) no Specified Event of Default exists shall have occurred and be continuing at the time ofof consummation of such Limited Condition Acquisition, (2) if the proceeds of an Incremental Term Loan are being used to finance such Limited Condition Acquisition, then (x) the conditions set forth in Section 2.14(c)(1)(iii)(x) and Section 4.02(a) shall be required to be satisfied at the time of closing of the Limited Condition Acquisition and funding of such Incremental Term Loan but, if the lenders providing such Incremental Term Loan so agree, the representations and warranties which must be accurate at the time of closing of the Limited Condition Acquisition and funding of such Incremental Term Loan may be limited to customary “specified representations” and such other fundamental representations and warranties as may be required by the lenders providing such Incremental Term Loan, and immediately after giving effect to(y) the conditions set forth in Section 2.14(a), Section 2.14(c)(1)(iii)(y) and Section 4.02(b) shall, if and to the extent the lenders providing such Incremental Term Loan so agree, be satisfied if (I) no Default or Event of Default shall have occurred and be continuing as of the applicable LCA Test Date, and (II) no Specified Event of Default shall have occurred and be continuing at the time of the funding of such Incremental Term Loan in connection with the consummation of such Limited Condition Acquisition, ; and (b3) for purposes of determining compliance with any provision of this Agreement which requires that any of the representations and warranties made by any Loan Party set forth in this Agreement or in any other Loan Document be true and correct, such condition shall be deemed satisfied, so long as (x) the representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects (without duplication of any materiality qualifier therein) as of the date of execution of the definitive agreement(s) for such Limited Condition Acquisition and the related Indebtedness to be incurred in connection therewith and the use of proceeds thereof shall be deemed incurred and/or applied at the LCA Test Date (yuntil such time as the Indebtedness is actually incurred or the applicable definitive agreement is terminated without actually consummating the applicable Limited Condition Acquisition) and outstanding thereafter for purposes of determining pro forma compliance with any financial ratio or test (including any Consolidated Leverage Ratio test, any Consolidated Interest Coverage Ratio test, or any calculation of the Specified Representations (financial covenants set forth in each caseSection 7.12). For the avoidance of doubt, modified solely if any of such ratios or amounts for which compliance was determined or tested as of the LCA Test Date are thereafter exceeded or otherwise failed to have been complied with as a result of fluctuations in such ratio or amount, at or prior to the extent necessary consummation of the relevant Limited Condition Acquisition, such ratios or amounts will not be deemed to reflect the applicable terms have been exceeded or failed to be complied with as a result of such fluctuations solely for purposes of determining whether the relevant Limited Condition Acquisition is permitted to be consummated or taken. Except as set forth in clause (2) in the definitive agreement(s) governing such transaction) are true and correct in all material respects (without duplication of any materiality qualifier therein), at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and neither the Borrower nor any other Loan Party shall be required to bring down any other representation or warranty as a condition proviso to the consummation first sentence in this Section 1.03(e) in connection with the use of such proceeds of an Incremental Term Loan to finance a Limited Condition Acquisition (or and, in the incurrence case of such clause (2), only if and to the extent the lenders providing such Incremental Term Loan so agreed as provided in such clause (2)), it is understood and agreed that this Section 1.03(e) shall not limit the conditions set forth in Section 4.02 with respect to any Indebtedness and any other ancillary transaction consummated proposed Credit Extension, in connection with such a Limited Condition Acquisition)Acquisition or otherwise.
Appears in 2 contracts
Samples: Credit Agreement (Littelfuse Inc /De), Credit Agreement (Littelfuse Inc /De)
Limited Condition Acquisitions. Notwithstanding anything herein to In the contrary, solely event that the Company notifies the Administrative Agent in the case of the incurrence of writing that any Indebtedness or Liens or the making of any Investments or consolidations, mergers, divisions, or other fundamental changes, in each case in connection with proposed acquisition is a Limited Condition AcquisitionAcquisition and that the Company wishes to test the conditions to such acquisition and the availability of the Incremental Term Loans that is to be used to finance such acquisition in accordance with this Section 1.12, then, so long as agreed to by the lenders providing such Incremental Term Loan, the following provisions shall apply:
(a) for purposes of determining compliance with any provision of this Agreement which condition to such acquisition or such Incremental Term Loan that requires that no Default or Event of DefaultDefault shall have occurred and be continuing at the time of such acquisition or the incurrence of such Incremental Term Loan, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall be deemed satisfiedsatisfied if (i) no Default or Event of Default shall have occurred and be continuing at the time of the execution of the definitive purchase agreement, so long as merger agreement or other acquisition agreement governing such acquisition and (xii) no Event of Default exists on the date under any of execution of the definitive agreement(sSections 8.01(a), 8.01(f) for such Limited Condition Acquisition or 8.01(g) shall have occurred and (y) no Specified Event of Default exists at the time of, be continuing both immediately before and immediately after giving effect to, the consummation of to such Limited Condition Acquisition, acquisition and any Indebtedness incurred in connection therewith (including such Incremental Term Loan);
(b) for purposes of determining compliance with any provision of this Agreement which requires condition to such acquisition or such Incremental Term Loan that any of the representations and warranties made by any Loan Party set forth in this Agreement or in any and the other Loan Document Documents shall be true and correct in all material respects (except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects) at the time of such acquisition or the incurrence of such Incremental Term Loan shall be subject to customary “SunGard” or other customary applicable “certain funds” conditionality provisions (including, without limitation, a condition that the representations and warranties under the relevant agreements relating to such Limited Condition Acquisition as are material to the lenders providing such Incremental Term Loan shall be true and correct, but only to the extent that the Company or its applicable Subsidiary has the right to terminate its obligations under such condition shall agreement as a result of a breach of such representations and warranties or the failure of those representations and warranties to be deemed satisfiedtrue and correct), so long as (x) the all representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects (without duplication except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects) at the time of execution of the definitive purchase agreement, merger agreement or other acquisition agreement governing such acquisition;
(c) any materiality qualifier therein) as financial ratio test or condition, may upon the written election of the Company delivered to the Administrative Agent on or prior to the date of execution of the definitive agreement(sagreement for such acquisition, be tested either (i) upon the execution of the definitive agreement with respect to such Limited Condition Acquisition or (ii) upon the consummation of the Limited Condition Acquisition and related incurrence of Indebtedness, in each case, after giving effect to the relevant Limited Condition Acquisition and related incurrence of Indebtedness, on a Pro Forma Basis; provided that the failure to deliver a notice under this Section 1.12(c) on or prior to the date of execution of the definitive agreement for such Limited Condition Acquisition and (y) the Specified Representations (in each case, modified solely shall be deemed an election to the extent necessary to reflect test the applicable terms financial ratio under subclause (ii) of this Section 1.12(c); and
(d) if the Company has made an election with respect to any Limited Condition Acquisition to test a financial ratio test or condition at the time specified in clause (c)(i) of this Section, then, except as provided in the next sentence, in connection with any subsequent calculation of any ratio or basket on or following the relevant date of execution of the definitive agreement with respect to such Limited Condition Acquisition as set forth in and prior to the earlier of (i) the date on which such Limited Condition Acquisition is consummated or (ii) the date that the definitive agreement(s) governing agreement for such transaction) are true and correct in all material respects (Limited Condition Acquisition is terminated or expires without duplication of any materiality qualifier therein), at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and neither the Borrower nor any other Loan Party such ratio or basket shall be required to bring down any other representation or warranty as be satisfied (x) on a condition to the consummation of Pro Forma Basis assuming such Limited Condition Acquisition and other transactions in connection therewith (or including the incurrence or assumption of Indebtedness) have been consummated and (y) assuming such Limited Condition Acquisition and other transactions in connection therewith (including the incurrence or assumption of Indebtedness) have not been consummated. Notwithstanding the foregoing, any Indebtedness and any other ancillary transaction consummated calculation of a ratio in connection with determining the Applicable Rate and determining whether or not the Borrower is in compliance with the requirements of Section 7.10 shall, in each case be calculated assuming such Limited Condition Acquisition)Acquisition and other transactions in connection therewith (including the incurrence or assumption of Indebtedness) have not been consummated. The foregoing provisions shall apply with similar effect during the pendency of multiple Limited Condition Acquisitions such that each of the possible scenarios is separately tested. Notwithstanding anything to the contrary herein, in no event shall there be more than two Limited Condition Acquisitions at any time outstanding.
Appears in 2 contracts
Samples: Credit Agreement (Bloomin' Brands, Inc.), Credit Agreement (Bloomin' Brands, Inc.)
Limited Condition Acquisitions. Notwithstanding anything herein to the contrarycontrary herein, solely in to the case extent that the terms of the incurrence of any Indebtedness or Liens or the making of any Investments or consolidations, mergers, divisions, or other fundamental changes, in each case in connection with a Limited Condition Acquisition, this Agreement require (a) for purposes of determining compliance with any provision basket, financial ratio or test (including any Consolidated Net Leverage Ratio test or any Consolidated Interest Coverage Ratio test), (b) the absence of this Agreement which requires that no a Default or an Event of Default, or (c) a determination as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall be deemed satisfied, so long as (x) no Event of Default exists on the date of execution of the definitive agreement(s) for such Limited Condition Acquisition and (y) no Specified Event of Default exists at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and (b) for purposes of determining compliance with any provision of this Agreement which requires that any of to whether the representations and warranties made by any Loan Party set forth contained in this Agreement or in any other Loan Document be true and correctDocument, such condition or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be deemed satisfied, so long as (x) the representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects (without duplication and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect), in each case in connection with the consummation of any materiality qualifier thereina Limited Condition Acquisition, the determination of whether the relevant condition is satisfied may be made, at the election of the Parent, (A) as of on the date of the execution of the definitive agreement(s) for agreement with respect to such Limited Condition Acquisition (such date, the “LCA Test Date”), or (B) on the date on which such Limited Condition Acquisition is consummated, in either case, after giving effect to the relevant Limited Condition Acquisition and any related incurrence of Indebtedness, on a Pro Forma Basis; provided, that, notwithstanding the foregoing, in connection with any Limited Condition Acquisition: (1) any condition to such Limited Condition Acquisition requiring the absence of any Event of Default set forth in Section 7.8 shall be satisfied if (x) no Event of Default shall have occurred and be continuing as of the applicable LCA Test Date, and (y) no Event of Default pursuant to Section 8.1(a) or 8.1(f) shall have occurred and be continuing at the time of consummation of such Limited Condition Acquisition; (2) if the proceeds of an Incremental Term Loan are being used to finance such Limited Condition Acquisition, then solely with respect to such Incremental Term Loan (x) the conditions set forth in clause (4) of the proviso in Section 2.24(a) and Section 5.2(a) shall be required to be satisfied at the time of closing of the Limited Condition Acquisition and funding of such Incremental Term Loan but, if the lenders providing such Incremental Term Loan so agree, the representations and warranties which must be accurate at the time of closing of the Limited Condition Acquisition and funding of such Incremental Term Loan may be limited to customary “specified representations” and such other representations and warranties as may be required by the lenders providing such Incremental Term Loan, and (y) the Specified Representations conditions set forth in clause (1) of the proviso in each caseSection 2.24(a) and Section 5.2(b) shall, modified solely if and to the extent necessary to reflect the lenders providing such Incremental Term Facility so agree, be satisfied if (I) no Default or Event of Default shall have occurred and be continuing as of the applicable terms LCA Test Date, and (II) no Event of such Limited Condition Acquisition as set forth in the definitive agreement(sDefault pursuant to Section 8.1(a) governing such transactionor 8.1(f) are true shall have occurred and correct in all material respects (without duplication of any materiality qualifier therein), be continuing at the time of, and immediately after giving effect to, of the funding of such Incremental Term Facility in connection with the consummation of such Limited Condition Acquisition; and (3) in connection with any calculation of any ratio, test or basket availability with respect to any subsequent transaction following the relevant LCA Test Date and neither the Borrower nor any other Loan Party shall be required to bring down any other representation or warranty as a condition prior to the earlier of the date on which such Limited Condition Acquisition is consummated or the date that 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 subsequent transaction is permitted under this Agreement, any such ratio, test or basket shall be required to be satisfied on a Pro Forma Basis (i) assuming that such Limited Condition Acquisition and other transactions in connection therewith (or the including any incurrence of any Indebtedness and the use of proceeds thereof) have been consummated and (ii) assuming that such Limited Condition Acquisition and other transactions in connection therewith (including any other ancillary transaction incurrence of Indebtedness and the use of proceeds thereof) have not been consummated. For the avoidance of doubt, if any of such ratios or amounts for which compliance was determined or tested as of the LCA Test Date are thereafter exceeded or otherwise failed to have been complied with as a result of fluctuations in such ratio or amount (including due to fluctuations in Consolidated EBITDA), at or prior to the consummation of the relevant Limited Condition Acquisition, such ratios or amounts will not be deemed to have been exceeded or failed to be complied with as a result of such fluctuations solely for purposes of determining whether the relevant Limited Condition Acquisition is permitted to be consummated or taken. Except as set forth in clause (2) in the proviso to the first sentence in this Section 1.4 in connection with such the use of the proceeds of an Incremental Term Loan to finance a Limited Condition AcquisitionAcquisition (and, in the case of such clause (2), only if and to the extent the lenders providing such Incremental Term Loan so agree as provided in such clause (2)), it is understood and agreed that this Section 1.4 shall not limit the conditions set forth in Section 5.2 with respect to any proposed extension of credit hereunder, in connection with a Limited Condition Acquisition or otherwise.
Appears in 2 contracts
Samples: Credit Agreement (SunCoke Energy, Inc.), Credit Agreement (SunCoke Energy, Inc.)
Limited Condition Acquisitions. Notwithstanding anything herein to the contrary, solely in the case of the incurrence of (a) In connection with any Indebtedness or Liens or the making of any Investments or consolidations, mergers, divisions, or other fundamental changes, in each case action being taken in connection with a Limited Condition AcquisitionTransaction, (a) for purposes of determining compliance with any provision of this Agreement which that requires that no Default or Event of Default, or truth, correctness and completeness of the representation and warranties, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall shall, at the option of the Borrower, be deemed satisfied, so long as (x) no Default or Event of Default or the truth, correctness and completeness of the representation and warranties, as applicable, exists on the date of execution of the definitive agreement(sLCT Test Date (as defined below) for such Limited Condition Acquisition and (y) no Specified Event of Default exists at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and Transaction are entered.
(b) In connection with any action being taken in connection with a Limited Condition Transaction, for purposes of of:
(i) determining compliance with any provision of this Agreement which requires that any the calculation of the representations and warranties made by First Lien Leverage Ratio, the Secured Leverage Ratio, the Total Leverage Ratio or any Loan Party other ratio test; or
(ii) testing baskets or any other calculations set forth in this Agreement (including baskets or in any other Loan Document be true and correctcalculations measured as a percentage of EBITDA) for a Reference Period; in each case, at the option of the Borrower (the Borrower’s election to exercise such condition option in connection with any Limited Condition Transaction, an “LCT Election”), the date of determination of whether any such action is permitted hereunder shall be deemed satisfied, so long as to be (x) the representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects (without duplication of any materiality qualifier therein) as of the date of execution of on which the definitive agreement(s) acquisition agreements for such Limited Condition Acquisition and Transaction are entered into, (y) the Specified Representations date of any prepayment, redemption, repurchase, defeasance, acquisition or other payment or (z) in each caserespect of sales in connection with an acquisition to which the United Kingdom City Code on Takeovers and Mergers applies (or similar Law or practice in other jurisdictions), modified solely the date on which a “Rule 2.7 announcement” of a firm intends to make an offer or similar announcement or determination in another jurisdiction subject to Laws similar to the extent necessary United Kingdom City Code on Takeovers and Mergers in respect of a target of a Limited Condition Transaction, as applicable to reflect the applicable terms of such Limited Condition Acquisition Transaction (the “LCT Test Date”), and if, after giving pro forma effect to such 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) as set forth if they had occurred at the beginning of the fiscal quarter most recently ended for which financial statements have been delivered pursuant to Section 5.1(a) on or prior to the applicable LCT Test Date, the Borrower could have taken such action on the relevant LCT Test Date in compliance with such ratio, calculation or basket, such ratio, calculation or basket shall be deemed to have been complied with; provided, that (a) if financial statements for one or more subsequent fiscal quarters shall have become available, the Borrower may elect, in its sole discretion, to redetermine all such ratios, tests or baskets on the basis of such financial statements, in which case, such date of redetermination shall thereafter be deemed to be the applicable LCT Test Date for purposes of such ratios, tests or baskets. For the avoidance of doubt, if the Borrower has made an LCT Election and any of the ratios, calculations or baskets for which compliance was determined or tested as of the LCT Test Date are exceeded as a result of fluctuations in any such ratio, calculation or basket, including due to fluctuations in EBITDA, on or prior to the date of consummation of the relevant Limited Condition Transaction, such baskets, calculations or ratios will not be deemed to have been exceeded as a result of such fluctuations. If the Borrower has made an LCT Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio, calculation or test with respect to the incurrence of Indebtedness or Liens, or the making of distributions or Restricted Payments, Investments, dispositions or mergers, on or following the relevant LCT Test Date and prior to the earlier of the date on which such Limited Condition Transaction is consummated or the definitive agreement(s) governing agreement for such transaction) are true and correct in all material respects (Limited Condition Transaction is terminated or expires without duplication of any materiality qualifier therein), at the time of, and immediately after giving effect to, the consummation of such Limited Condition AcquisitionTransaction, and neither the Borrower nor any other Loan Party such ratio, calculation or test shall be required to bring down any other representation or warranty as calculated on a condition to the consummation of pro forma basis assuming such Limited Condition Acquisition Transaction and other transactions in connection therewith (or the including any incurrence of any Indebtedness and any other ancillary transaction consummated in connection with such Limited Condition Acquisition)the use of proceeds thereof) have been consummated.
Appears in 2 contracts
Samples: Credit Agreement (Upland Software, Inc.), Credit Agreement (Upland Software, Inc.)
Limited Condition Acquisitions. Notwithstanding anything herein Solely for the purpose of determining pro forma compliance with (i) the relevant ratios, tests and baskets with respect to the contrary, solely in the case of the incurrence of any Indebtedness (including any Incremental Facilities) or Liens or the making of any Investments or consolidations, mergers, divisions, acquisitions or other Investments, Restricted Payments, sales or dispositions of assets or fundamental changeschanges or (ii) (other than with respect to any drawing under the Revolving Commitments or the issuance of any Letter of Credit) the representations and warranties or the occurrence of any Default or Event of Default, in each case case, in connection with a Limited Condition Acquisition, (a) for purposes of determining compliance with any provision of this Agreement which requires that no Default or Event of Default, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall be deemed satisfied, so long as (x) no Event of Default exists on the date of execution determination of whether any such action is permitted hereunder shall, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Acquisition, an “LCA Election”), to the extent that the applicable transaction closes within one hundred twenty (120) days after the Borrower’s entry into definitive agreement(s) documentation with respect thereto (and, for the avoidance of doubt, to the extent such transaction does not close within such period, then such date shall instead be the date of consummation of the relevant transaction or action), 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 (y) no Specified Event of Default exists the other transactions to be entered into in connection therewith as if they had occurred at the time of, and immediately after giving effect tobeginning of the most recent test period ending prior to the LCA Test Date, the consummation of Borrower could have taken such Limited Condition Acquisition, and (b) for purposes of determining action on the relevant LCA Test Date in pro forma compliance with any provision of this Agreement which requires that any of the representations and warranties made by any Loan Party set forth in this Agreement such ratio, test, basket, representation or in any other Loan Document be true and correctwarranty, such condition ratio, test, basket, representation or warranty shall be deemed satisfiedto have been complied with; provided that, so long as (x) in any event, on the representations and warranties in this Agreement and date of consummation of any such transaction or action, the other Loan Documents are Specified Representations shall be true and correct in all material respects (without duplication or, in the case of any representation or warranty qualified by materiality qualifier thereinor Material Adverse Effect, in all respects) on and as of the date of execution of the definitive agreement(s) for such Limited Condition Acquisition and consummation (y) the Specified Representations (in each case, modified solely except to the extent necessary to reflect the applicable terms that any such representations and warranties are made as of an earlier date, in which case such Limited Condition Acquisition as set forth in the definitive agreement(s) governing such transaction) are representations and warranties shall have been true and correct in all material respects (without duplication or, in the case of any representation or warranty qualified by materiality qualifier thereinor Material Adverse Effect, in all respects) on and as of such earlier date) and no Event of Default under Section 7.01(a), (b), (h) or (i) shall have occurred. For the avoidance of doubt, (x) if any of such ratios or amounts are exceeded as a result of fluctuations in such ratio or amount (including due to fluctuations in Consolidated EBITDA of Ultimate Parent and its Subsidiaries or the Person subject to such Limited Condition Acquisition), at or prior to the time ofconsummation of the relevant transaction or action, such ratios will not be deemed 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 the Borrower has made an LCA Election for any Limited Condition Acquisition, then in connection with any subsequent calculation of any ratio, test or basket availability with respect to any transaction on or following the relevant LCA Test Date and immediately after giving effect to, prior to the earlier of (i) the date on which such Limited Condition Acquisition is consummated or (ii) the date that the definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition, and neither for purposes of determining whether such subsequent transaction is permitted under the Borrower nor Loan Documents, any other Loan Party such ratio, test or basket shall be required to bring down any other representation or warranty as calculated both on an actual basis and on a condition to the consummation of Pro Forma Basis assuming such Limited Condition Acquisition and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated until such time as the applicable Limited Condition Acquisition has actually been consummated or the incurrence of any Indebtedness and any other ancillary transaction consummated in connection definitive agreement with such Limited Condition Acquisition)respect thereto has been terminated or expires without consummation thereof.
Appears in 1 contract
Samples: Credit Agreement (Grindr Inc.)
Limited Condition Acquisitions. Notwithstanding anything herein the foregoing provisions of this Section 2.22 or in any other provision of any Loan Document: (i) if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, the conditions precedent to Lead Borrower’s right to request such Incremental Facility for a Limited Condition Acquisition shall be limited to the contraryfollowing: (a) on the date of the signing of the definitive acquisition agreement for such Limited Condition Acquisition, solely (x) no Event of Default shall have occurred and be continuing (y) each of the representations and warranties contained in the Loan Documents shall be true and correct in all material respects (except (I) with respect to representations and warranties expressly made as of an earlier date, in which case such representations and warranties were true and correct in all material respects as of such earlier date and (II) that if any such representation or warranty contains any materiality qualifier, such representation or warranty shall be true and correct in all respects); and (b) at the date of closing of such Limited Condition Acquisition and the funding of the applicable Incremental Facility, (A) no Event of Default under Section 7.01(a), (f) or (g) shall have occurred and be continuing, (B) the only representations and warranties the accuracy of which shall be a condition to funding such advance shall be the customary specified representations and the customary specified acquisition agreement representations agreed between the Lead Borrower and the Lenders providing such Incremental Facility; and (ii) in the case of the incurrence of any Indebtedness indebtedness or Liens liens or the making of any Investments investments, restricted payments, prepayments of subordinated or consolidationsjunior debt, mergers, divisions, asset sales or other fundamental changes, in each case changes or the designation of any restricted subsidiaries or unrestricted subsidiaries in connection with a Limited Condition Acquisition, (a) for purposes at the Lead Borrower’s option, the relevant ratios and baskets shall be determined, and any default or event of determining compliance with any provision of this Agreement which requires that no Default or Event of Defaultdefault blocker shall be tested, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall be deemed satisfied, so long as (x) no Event of Default exists on the date of execution of the definitive agreement(s) acquisition agreements for such Limited Condition Acquisition and (y) no Specified Event of Default exists at are entered into and, subject to the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and (b) for purposes of determining compliance with any provision of this Agreement which requires that any of the representations and warranties made by any Loan Party set forth second proviso contained in this Agreement or clause (ii), calculated as if the acquisition and other pro forma events in any other Loan Document be true and correctconnection therewith were consummated on such date; provided that if the Lead Borrower has made such an election, such condition shall be deemed satisfied, so long as (x) in connection with the representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects (without duplication calculation of any materiality qualifier therein) as of the date of execution of the definitive agreement(s) for such Limited Condition Acquisition and (y) the Specified Representations (in each case, modified solely ratio or basket with respect to the extent necessary to reflect the applicable terms of such Limited Condition Acquisition as set forth in the definitive agreement(s) governing such transaction) are true and correct in all material respects (without duplication of any materiality qualifier therein), at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and neither the Borrower nor any other Loan Party shall be required to bring down any other representation or warranty as a condition to the consummation of such Limited Condition Acquisition (or the incurrence of any Indebtedness and debt or liens, or the making of any other ancillary transaction consummated in connection with such Limited Condition Acquisition).investments, restricted payments, prepayments of subordinated, junior or unsecured debt, -136- #96942867v160458181 #96942867v1
Appears in 1 contract
Limited Condition Acquisitions. Notwithstanding anything herein to When calculating the contrary, solely in the case of the incurrence of availability under any Indebtedness basket or Liens or the making of any Investments or consolidations, mergers, divisions, or other fundamental changesratio under this Indenture, in each case in connection with a Limited Condition Acquisition, (a) for purposes the date of determining compliance with determination of such basket or ratio and of any provision of this Agreement which requires that no Default or Event of DefaultDefault shall, as applicableat the option of the Company, has occurred, is continuing or would result from any such action, as applicable, such condition shall be deemed satisfied, so long as (x) no Event of Default exists on the date of execution of the definitive agreement(s) agreements for such Limited Condition Acquisition are entered into and such baskets or ratios shall be calculated on a pro forma basis after giving effect to such Limited Condition Acquisition and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds therefrom) as if they occurred at the beginning of the applicable reference period for purposes of determining the ability to consummate any such Limited Condition Acquisition (and not for purposes of any subsequent availability of any basket or ratio), and, for the avoidance of doubt, (x) if any of such baskets or ratios are exceeded as a result of fluctuations in such basket or ratio (including due to fluctuations in the Consolidated Cash Flow of the Company or the target company) subsequent to such date of determination and at or prior to the consummation of the relevant Limited Condition Acquisition, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations solely for purposes of determining whether the Limited Condition Acquisition is permitted under this Indenture and (y) no Specified Event of Default exists such baskets or ratios shall not be tested at the time ofof consummation of such Limited Condition Acquisition or related transactions; provided, further, that if the Company elects to have such determinations occur at the time of entry into such definitive agreement, then any such transactions (including any incurrence of Indebtedness and immediately the use of proceeds therefrom) shall be deemed to have occurred on the date the definitive agreements are entered into and outstanding thereafter for purposes of calculating any baskets or ratios under this Indenture after giving effect to, the date of such agreement and before the consummation of such Limited Condition Acquisition, and (b) for purposes of determining compliance with any provision of this Agreement which requires that any of the representations and warranties made by any Loan Party set forth in this Agreement or in any other Loan Document be true and correct, such condition shall be deemed satisfied, so long as (x) the representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects (without duplication of any materiality qualifier therein) as of the date of execution of the definitive agreement(s) for such Limited Condition Acquisition and (y) the Specified Representations (in each case, modified solely to the extent necessary to reflect the applicable terms of such Limited Condition Acquisition as set forth in the definitive agreement(s) governing such transaction) are true and correct in all material respects (without duplication of any materiality qualifier therein), at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and neither the Borrower nor any other Loan Party shall be required to bring down any other representation or warranty as a condition to the consummation of such Limited Condition Acquisition (or the incurrence of any Indebtedness and any other ancillary transaction consummated in connection with such Limited Condition Acquisition).
Appears in 1 contract
Limited Condition Acquisitions. Notwithstanding anything herein to In the contrary, solely event that the Company notifies the Administrative Agent in the case of the incurrence of writing that any Indebtedness or Liens or the making of any Investments or consolidations, mergers, divisions, or other fundamental changes, in each case in connection with proposed Acquisition is a Limited Condition AcquisitionAcquisition and that the Company wishes to test the conditions to such Acquisition and the ability to incur any Indebtedness to be used to finance such Acquisition in accordance with this Section 1.8, then, so long as agreed to by the Administrative Agent and the Lenders providing such Indebtedness, the following provisions shall apply:
(a) for purposes of determining compliance with any provision of this Agreement which condition to such Acquisition or such Indebtedness that requires that no Default or Event of DefaultDefault shall have occurred and be continuing at the time of such Acquisition or the incurrence of such Indebtedness, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall be deemed satisfiedsatisfied if (i) no Default or Event of Default shall have occurred and be continuing at the time of the execution of the definitive purchase agreement, so long as merger agreement or other acquisition agreement governing such Acquisition and (xii) no Event of Default exists on the date under any of execution of the definitive agreement(sSection 7.1(a) for such Limited Condition Acquisition or 7.1(e) shall have occurred and (y) no Specified Event of Default exists at the time of, be continuing both before and immediately after giving effect to, the consummation of to such Limited Condition Acquisition, Acquisition and any Indebtedness incurred in connection therewith on a Pro Forma Basis (including such additional Indebtedness);
(b) for purposes of determining compliance with any provision of this Agreement which requires condition to such Acquisition or such Indebtedness that any of the representations and warranties made by any Loan Party set forth in this Agreement or in any other Loan Document be true and correct, such condition shall be deemed satisfied, so long as (x) the representations and warranties in this Agreement and the other Loan Credit Documents shall be true and correct at the time of such Acquisition or the incurrence of such Indebtedness shall be subject to customary “SunGard” or other customary applicable “certain funds” conditionality provisions (including, without limitation, a condition that the representations and warranties under the relevant agreements relating to such Limited Condition Acquisition as are material to the lenders providing such Indebtedness shall be true and correct, but only to the extent that the Company or its applicable Subsidiary has the right to terminate its obligations under such agreement as a result of a breach of such representations and warranties or the failure of such representations and warranties to be true and correct, or otherwise decline to close the Acquisition as a result thereof), so long as all representations and warranties in this Agreement and the other Credit Documents are true and correct at the time of execution of the definitive purchase agreement, merger agreement or other acquisition agreement governing such Acquisition;
(c) any financial ratio test, basket or condition may, upon the written election of the Company delivered to the Administrative Agent prior to the execution of the definitive agreement for such Acquisition, be tested either (i) upon the execution of the definitive agreement with respect to such Limited Condition Acquisition or (ii) upon the consummation of such Limited Condition Acquisition and related incurrence of Indebtedness, in all material respects (without duplication each case, after giving effect to the relevant Limited Condition Acquisition and related incurrence of any materiality qualifier thereinIndebtedness on a Pro Forma Basis; provided that the failure to deliver a notice under this Section 1.8(c) as of prior to the date of execution of the definitive agreement(s) agreement for such Limited Condition Acquisition and (y) the Specified Representations (in each case, modified solely shall be deemed an election to the extent necessary to reflect test the applicable terms financial ratio, basket or condition under subclause (ii) of this Section 1.8(c); and
(d) if the Company has made an election with respect to any Limited Condition Acquisition to test a financial ratio test, basket or condition at the time specified in clause (c)(i) of this Section, then in connection with any subsequent calculation of any ratio or basket on or following the relevant date of execution of the definitive agreement with respect to such Limited Condition Acquisition as set forth in and prior to the earlier of (i) the date on which such Limited Condition Acquisition is consummated and (ii) the date that the definitive agreement(s) governing agreement for such transaction) are true and correct in all material respects (Limited Condition Acquisition is terminated or expires without duplication of any materiality qualifier therein), at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and neither the Borrower nor any other Loan Party such ratio or basket shall be required to bring down any other representation or warranty as be satisfied on a condition to the consummation of Pro Forma Basis (x) assuming such Limited Condition Acquisition and other transactions in connection therewith (or including the incurrence or assumption of any Indebtedness Indebtedness) have been consummated and any other ancillary transaction consummated in connection with (y) assuming such Limited Condition Acquisition)Acquisition and other transactions in connection therewith (including the incurrence or assumption of Indebtedness) have not been consummated. The foregoing provisions shall apply with similar effect during the pendency of multiple Limited Condition Acquisitions such that each of the possible scenarios is separately tested.
Appears in 1 contract
Samples: Credit Agreement (Itron Inc /Wa/)
Limited Condition Acquisitions. Notwithstanding anything herein any other provision of this Agreement to the contrary, solely in the case of the incurrence of any Indebtedness Debt (other than under Revolving Loans, the Delayed Draw Term Loans, any Incremental Facility and any Permitted Ratio Debt, which shall remain subject to the terms thereof with respect to the impact, if any, of a Limited Condition Acquisition) or Liens or the making of any Investments or any consolidations, mergersamalgamations, divisions, mergers or other fundamental changes, in each case changes in connection with a Limited Condition Acquisition, (a) for purposes at the Borrower’s option, the accuracy of determining compliance with any provision representations and warranties, the existence of this Agreement which requires that no any Default or Event of Default, as applicable, has occurred, is continuing or would result from and any such action, as applicable, such condition relevant ratios and baskets shall be deemed satisfied, so long determined as (x) no Event of Default exists on the date of execution of the definitive agreement(s) Limited Condition Acquisition Agreement for such Limited Condition Acquisition is entered into and, as applicable, calculated as if the acquisition and other pro forma events in connection therewith were consummated on such date; provided that (ya) no Specified Limited Condition Acquisition (or related transactions to be effected in reliance on the Limited Condition Acquisition Provisions) shall be permitted if a Default or Event of Default exists under Section 8.1(a), 8.1(f) or 8.1(g) shall exist at the time of, and immediately after giving effect to, the of its consummation of such Limited Condition Acquisition(or would be caused thereby), and (b) for purposes of determining compliance with any provision of this Agreement which requires that any of if the representations and warranties Borrower has made by any Loan Party set forth in this Agreement or in any other Loan Document be true and correctsuch an election, such condition shall be deemed satisfied, so long as (x) the representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects (without duplication of any materiality qualifier therein) as of after the date of execution of that the definitive agreement(s) for such applicable Limited Condition Acquisition Agreement is executed and (y) effective until the Specified Representations (in each case, modified solely to the extent necessary to reflect the applicable terms earlier of such Limited Condition Acquisition as set forth in the definitive agreement(s) governing such transaction) are true and correct in all material respects (without duplication of any materiality qualifier therein), at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and neither the Borrower nor any other Loan Party shall be required to bring down any other representation or warranty as a condition to the consummation of such Limited Condition Acquisition (or the LCA Termination Date with respect thereto, in connection with the calculation of any ratio or basket with respect to the incurrence of any Indebtedness and other Debt or Liens, or the making of any other ancillary transaction consummated Investments, Restricted Distributions, payments in respect of Junior Debt, Asset Disposition or any consolidations, amalgamations, mergers or fundamental changes, any such ratio or basket shall be calculated both (i) on a Pro Forma Basis assuming such Permitted Acquisition or other permitted Investment and other pro forma events in connection with therewith (including any incurrence of Debt and Liens) have been consummated and (ii) without giving effect to such Permitted Acquisition or other permitted Investment and such other pro forma events. Notwithstanding anything to the contrary, the Acquired EBITDA, acquired assets and Consolidated Net Income of any Acquired Entity or Business shall only be used in the determination of any relevant baskets (such as “growth” baskets) under the Credit Documents if and when such Permitted Acquisition or other permitted Investment has been consummated (the provisions of this paragraph and the definition of “Limited Condition Acquisition” are referred to in this Agreement as the “Limited Condition Acquisition Provisions”).
Appears in 1 contract
Samples: Credit and Guaranty Agreement
Limited Condition Acquisitions. Notwithstanding anything herein to the contrarycontrary herein, solely (i) when calculating any financial ratio or test (including any First Lien Leverage Ratio test, any Consolidated Secured Leverage Ratio test, any Consolidated Leverage Ratio test and the amount of Consolidated Assets or the amount of Consolidated Net Income or Consolidated EBITDA) in the case of connection with the incurrence of any Indebtedness or Indebtedness, the creation of Liens or the making of any Investments or consolidations, mergers, divisions, or other fundamental changes, in each case in connection with a Limited Condition Acquisitionan Investment, (aii) for purposes of determining compliance with any provision of this Agreement which requires that no Default or Event of Default (or any type of Default or Event of Default, as applicable, ) has occurred, is continuing or would result from any such actiontherefrom, as applicable, such condition shall be deemed satisfied, so long as (xiii) no Event of Default exists on the date of execution of the definitive agreement(s) for such Limited Condition Acquisition and (y) no Specified Event of Default exists at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and (b) for purposes of determining compliance with any provision of this Agreement which requires that compliance with any of the representations and representation or warranties made by any Loan Party set forth herein or (iv) determining the satisfaction of all other conditions precedent to the incurrence of Indebtedness, the creation of Liens or the making of an Investment, in this Agreement or each case with respect to clauses (i)-(iv) in any other Loan Document be true and correctconnection with a Limited Condition Acquisition, such condition shall be deemed satisfied, so long as (x) the representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects (without duplication of any materiality qualifier therein) as of the date of execution determination of such ratio or other provisions, determination of whether any Default or Event of Default has occurred, is continuing or would result therefrom, determination of compliance with any representations or warranties or the satisfaction of any other conditions shall, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Acquisition, an “LCA Election,” which LCA Election may be in respect of all or none of (i), (ii), (iii) or (iv)), be deemed to be the date the definitive agreement(sagreements (or other relevant definitive documentation) for such Limited Condition Acquisition are entered into (the “LCA Test Date”). If on a pro forma basis after giving effect to such Limited Condition Acquisition and the other transactions to be entered into in connection therewith (including any incurrence or issuance of Indebtedness, and the use of proceeds thereof), with such ratios and other provisions calculated as if such Limited Condition Acquisition or other transactions had occurred at the beginning of the most recent Test Period ending prior to the LCA Test Date for which financial statements have been (or are required to be) delivered pursuant to Section 5.1, the Borrower could have taken such action on the relevant LCA Test Date in compliance with the applicable ratios or other provisions, such provisions shall be deemed to have been complied with, unless an Event of Default pursuant to Section 8.1(a) or (f) shall be continuing on the date such Limited Condition Acquisition is consummated. For the avoidance of doubt, (i) if, following the LCA Test Date, any of such ratios or other provisions are exceeded or breached as a result of fluctuations in such ratio (including due to fluctuations in Consolidated EBITDA or other components of such ratio) or other provisions at or prior to the consummation of the relevant Limited Condition Acquisitions, such ratios and other provisions will not be deemed to have been exceeded or failed to have been satisfied as a result of such fluctuations solely for purposes of determining whether the Limited Condition Acquisition is permitted hereunder and (yii) such ratios and compliance with such conditions shall not be tested at the Specified Representations (in each case, modified solely to the extent necessary to reflect the applicable terms time of consummation of such Limited Condition Acquisition as Acquisition. If the Borrower has made an LCA Election for any Limited Condition Acquisition, then in connection with any subsequent calculation of any ratio, basket availability or compliance with any other provision hereunder (other than actual compliance with the financial covenants set forth in Article VI) on or following the relevant LCA Test Date and prior to the earlier of the date on which such Limited Condition Acquisition is consummated and the date that the definitive agreement(s) governing agreement for such transaction) are true and correct in all material respects (Limited Condition Acquisition is terminated or expires without duplication of any materiality qualifier therein), at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and neither the Borrower nor any such ratio, basket or compliance with any other Loan Party provision hereunder shall be required to bring down any other representation or warranty as calculated on a condition to the consummation of pro forma basis assuming such Limited Condition Acquisition and other transactions in connection therewith (including any incurrence or the incurrence issuance of any Indebtedness and any other ancillary transaction the use of proceeds thereof) had been consummated in connection with such Limited Condition Acquisition)on the LCA Test Date.
Appears in 1 contract
Limited Condition Acquisitions. Notwithstanding anything herein to the contrary, solely Solely in the case of the incurrence consummation of any Indebtedness or Liens or the making of any Investments or consolidations, mergers, divisions, or other fundamental changes, in each case in connection with a Limited Condition Acquisition, if the Borrower has made an LCA Election (other than in the case of Indebtedness under the Revolving Credit Commitment or any Incremental Facility or the Delayed Draw Term Loan Commitment incurred in connection therewith, which shall remain subject to the terms and conditions thereof with respect to the impact, if any, of any Limited Condition Acquisition), (a) the Total Net Leverage Ratio, to the extent required to be tested in connection therewith, shall be calculated on a Pro Forma Basis and tested as of the date of execution of the definitive agreement(s) for such Limited Condition Acquisition (as if such transaction and other pro forma events in connection therewith were consummated on such date) (such date, the “LCA Test Date”), (b) for purposes of determining compliance with any provision of this Agreement which requires that no Default or Event of Default, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall be deemed satisfied, so long as (x) no Event of Default exists on the date of execution of the definitive agreement(s) for such Limited Condition Acquisition LCA Test Date and (y) no Specified Event of Default exists at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and (bc) for purposes of determining compliance with any provision of this Agreement which requires that any of the representations and warranties made by any Loan Credit Party set forth in this Agreement or in any other Loan Credit Document be true and correct, such condition shall be deemed satisfied, so long as (x) the representations and warranties in this Agreement and the other Loan Credit Documents are true and correct in all material respects (without duplication of any materiality qualifier therein) as of the date of execution of the definitive agreement(s) for such Limited Condition Acquisition LCA Test Date and (y) the “specified acquisition representations” (or such similar term as customarily defined in the definitive agreements entered into in connection with such Limited Condition Acquisitions) and the Specified Representations (in each case, modified solely to the extent necessary to reflect the applicable terms of such Limited Condition Acquisition as set forth in the definitive agreement(s) governing such transaction) are true and correct in all material respects (without duplication of any materiality qualifier therein), at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and neither . If the Borrower nor has made an LCA Election for any other Loan Party shall Limited Condition Acquisition, then in connection with any subsequent calculation of any ratio or basket in connection with any subsequent Limited Condition Acquisition to be required to bring down entered into on or following such LCA Test Date for any other representation or warranty as a condition such original acquisition and prior to the earlier of (i) the date on which such original Limited Condition Acquisition is consummated or (ii) the date that the definitive agreement for such original Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition, any such ratio or basket shall be calculated on a Pro Forma Basis (x) assuming that such Limited Condition Acquisition (or the has been consummated, including any incurrence of any Indebtedness and any other ancillary transaction consummated in connection with the use of the proceeds thereof and the Consolidated Adjusted EBITDA and Consolidated Net Income of the target of such Limited Condition Acquisition), and (y) assuming that such original Limited Condition Acquisition has not been consummated, excluding Consolidated Adjusted EBITDA and Consolidated Net Income of the target and any Indebtedness to be incurred.
Appears in 1 contract
Samples: Credit Agreement
Limited Condition Acquisitions. Notwithstanding anything herein in this Agreement to the contrary, solely when (i) calculating any applicable ratio in the case of the connection with incurrence of any Indebtedness Debt (other than Debt incurred under the Revolving Loan Commitment or Liens or the Delayed Draw Term Loan Commitment which shall remain subject to the terms thereof with respect to the impact, if any, of a Limited Condition Acquisition), the creation of Liens, the making of any Investments disposition, the making of an Investment, the making of a Restricted Payment or consolidationsthe repayment of Debt, mergers(ii) determining compliance with any provision of the Loan Documents which requires that no Default or Event of Default has occurred (other than an Event of Default under Section 8.1.1 or 8.1.3), divisionsis continuing or would result therefrom, (iii) determining compliance with any provision of the Loan Documents which requires compliance with any representations and warranties set forth herein, or (iv) the satisfaction of all other fundamental changesconditions precedent to the incurrence of Debt (other than Debt incurred under the Revolving Loan Commitment or the Delayed Draw Term Loan Commitment which shall remain subject to the terms thereof with respect to the impact, if any, of a Limited Condition Acquisition), the creation of Liens, the making of any disposition, the making of an Investment, the making of a Restricted Payment or the repayment of Debt, in each case case, in connection with a Limited Condition Acquisition, (a) for purposes the date of determining compliance with determination of such ratio, determination of whether any provision of this Agreement which requires that no Default or Event of Default, as applicable, Default has occurred, is continuing or would result from therefrom, determination of compliance with any representations or warranties or satisfaction of any other condition shall, at the option of the Borrower Representative (the Borrower Representative’s election to exercise such actionoption in connection with any Limited Condition Acquisition, as applicablean “LCA Election”), such condition shall be deemed satisfied, so long as (x) no Event of Default exists on to be the date of execution of the definitive agreement(s) agreements for such Limited Condition Acquisition and are entered into (y) no Specified Event of Default exists at the time of, and immediately “LCA Test Date”). If on a pro forma basis after giving effect to, the consummation of such Limited Condition Acquisition, and (b) for purposes of determining compliance with any provision of this Agreement which requires that any of the representations and warranties made by any Loan Party set forth in this Agreement or in any other Loan Document be true and correct, such condition shall be deemed satisfied, so long as (x) the representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects (without duplication of any materiality qualifier therein) as of the date of execution of the definitive agreement(s) for to such Limited Condition Acquisition and the other related transactions to be entered into in connection therewith (yincluding any incurrence of Debt and the use of proceeds thereof) the Specified Representations (in each case, modified solely to the extent necessary to reflect the applicable terms of such ratios and other provisions are calculated as if such Limited Condition Acquisition as set forth in the definitive agreement(s) governing such transaction) are true and correct in all material respects (without duplication of any materiality qualifier therein), or other transactions had occurred at the time ofbeginning of the most recent computation period ending prior to the LCA Test Date for which financial statements are available, and immediately after giving effect tothe Borrowers could have taken such action on the relevant LCA Test Date in compliance with the applicable ratios or other provisions, such provisions shall be deemed to have been complied with, unless an Event of Default under Section 8.1.1 or 8.1.3 shall be continuing on the date such Limited Condition Acquisition is consummated. For the avoidance of doubt, (i) if any of such ratios or other provisions are exceeded or breached as a result of fluctuations in such ratio (including due to fluctuations in TTM Adjusted EBITDA) or other provisions at or prior to the consummation of such the relevant Limited Condition Acquisition, such ratios and neither the Borrower nor any other Loan Party shall provisions will not be required deemed to bring down any other representation or warranty have been exceeded as a condition to result of such fluctuations solely for purposes of determining whether the Limited Condition Acquisition is permitted under this Agreement and (ii) such ratios and compliance with such conditions shall not be tested at the time of consummation of such Limited Condition Acquisition or related transactions in connection therewith, unless on such date an Event of Default under Section 8.1.1 or 8.1.3 shall have occurred and be continuing. Notwithstanding anything herein to the contrary, in the event that the Borrower Representative makes an LCA Election as described above, (x) following such election and until the earlier of the date on which such Limited Condition Acquisition is consummated or the definitive agreement for such Limited Condition Acquisition is terminated, subject to the proviso below, all subsequent calculations of any ratios under this Agreement in connection with incurrence of Debt, the creation of Liens, the making of any Indebtedness disposition, the making of an Investment, the making of a Restricted Payment or the repayment of Debt (and for the avoidance of doubt, excluding with respect to the calculation of any financial covenant set forth in Section 7.14 hereof) shall be calculated on a pro forma basis (1) assuming such Limited Condition Acquisition and other pro forma events in connection therewith (including any incurrence of indebtedness) have been consummated and (2) assuming such Limited Condition Acquisition and other pro forma events in connection therewith (including any incurrence of indebtedness) have not been consummated and (y) except with respect to pro forma incurrence tests described in the foregoing clause (x)(1), Consolidated Net Income (and any other ancillary transaction consummated in connection financial term derived therefrom) shall not include any Consolidated Net Income of or attributable to the Target associated with any such Limited Condition Acquisition)Acquisition unless and until the closing of such Limited Condition Acquisition shall have actually occurred.
Appears in 1 contract
Samples: Credit Agreement
Limited Condition Acquisitions. Notwithstanding anything herein to the contrarycontrary herein, solely in to the case extent that the terms of the incurrence of any Indebtedness or Liens or the making of any Investments or consolidations, mergers, divisions, or other fundamental changes, in each case in connection with a Limited Condition Acquisition, this Agreement require (a) for purposes of determining compliance with any provision basket, financial ratio or test (including any Consolidated Net Leverage Ratio test or any Consolidated Interest Coverage Ratio test), (b) the absence of this Agreement which requires that no a Default or an Event of Default, or (c) a determination as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall be deemed satisfied, so long as (x) no Event of Default exists on the date of execution of the definitive agreement(s) for such Limited Condition Acquisition and (y) no Specified Event of Default exists at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and (b) for purposes of determining compliance with any provision of this Agreement which requires that any of to whether the representations and warranties made by any Loan Party set forth contained in this Agreement or in any other Loan Document be true and correctDocument, such condition or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be deemed satisfied, so long as (x) the representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects (without duplication and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect), in each case in connection with the consummation of any materiality qualifier thereina Limited Condition Acquisition, the determination of whether the relevant condition is satisfied may be CHAR1\1969725v1CHAR1\1969725v3 made, at the election of the Parent, (A) as of on the date of the execution of the definitive agreement(s) for agreement with respect to such Limited Condition Acquisition (such date, the “LCA Test Date”), or (B) on the date on which such Limited Condition Acquisition is consummated, in either case, after giving effect to the relevant Limited Condition Acquisition and any related incurrence of Indebtedness, on a Pro Forma Basis; provided, that, notwithstanding the foregoing, in connection with any Limited Condition Acquisition: (1) any condition to such Limited Condition Acquisition requiring the absence of any Event of Default set forth in Section 7.8 shall be satisfied if (x) no Event of Default shall have occurred and be continuing as of the applicable LCA Test Date, and (y) no Event of Default pursuant to Section 8.1(a) or 8.1(f) shall have occurred and be continuing at the time of consummation of such Limited Condition Acquisition; (2) if the proceeds of an Incremental Term Loan are being used to finance such Limited Condition Acquisition, then solely with respect to such Incremental Term Loan (x) the conditions set forth in clause (4) of the proviso in Section 2.24(a) and Section 5.2(a) shall be required to be satisfied at the time of closing of the Limited Condition Acquisition and funding of such Incremental Term Loan but, if the lenders providing such Incremental Term Loan so agree, the representations and warranties which must be accurate at the time of closing of the Limited Condition Acquisition and funding of such Incremental Term Loan may be limited to customary “specified representations” and such other representations and warranties as may be required by the lenders providing such Incremental Term Loan, and (y) the Specified Representations conditions set forth in clause (1) of the proviso in each caseSection 2.24(a) and Section 5.2(b) shall, modified solely if and to the extent necessary to reflect the lenders providing such Incremental Term Facility so agree, be satisfied if (I) no Default or Event of Default shall have occurred and be continuing as of the applicable terms LCA Test Date, and (II) no Event of such Limited Condition Acquisition as set forth in the definitive agreement(sDefault pursuant to Section 8.1(a) governing such transactionor 8.1(f) are true shall have occurred and correct in all material respects (without duplication of any materiality qualifier therein), be continuing at the time of, and immediately after giving effect to, of the funding of such Incremental Term Facility in connection with the consummation of such Limited Condition Acquisition; and (3) in connection with any calculation of any ratio, test or basket availability with respect to any subsequent transaction following the relevant LCA Test Date and neither the Borrower nor any other Loan Party shall be required to bring down any other representation or warranty as a condition prior to the earlier of the date on which such Limited Condition Acquisition is consummated or the date that 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 subsequent transaction is permitted under this Agreement, any such ratio, test or basket shall be required to be satisfied on a Pro Forma Basis (i) assuming that such Limited Condition Acquisition and other transactions in connection therewith (or the including any incurrence of any Indebtedness and the use of proceeds thereof) have been consummated and (ii) assuming that such Limited Condition Acquisition and other transactions in connection therewith (including any other ancillary transaction incurrence of Indebtedness and the use of proceeds thereof) have not been consummated. For the avoidance of doubt, if any of such ratios or amounts for which compliance was determined or tested as of the LCA Test Date are thereafter exceeded or otherwise failed to have been complied with as a result of fluctuations in such ratio or amount (including due to fluctuations in Consolidated EBITDA), at or prior to the consummation of the relevant Limited Condition Acquisition, such ratios or amounts will not be deemed to have been exceeded or failed to be complied with as a result of such fluctuations solely for purposes of determining whether the relevant Limited Condition Acquisition is permitted to be consummated or taken. Except as set forth in clause (2) in the proviso to the first sentence in this Section 1.4 in connection with such the use of the proceeds of an Incremental Term Loan to finance a Limited Condition AcquisitionAcquisition (and, in the case of such clause (2), only if and to the extent the lenders providing such Incremental Term Loan so agree as provided in such clause (2)), it is understood and agreed that this Section 1.4 shall not limit the conditions set forth in Section 5.2 with respect to any proposed extension of credit hereunder, in connection with a Limited Condition Acquisition or otherwise.
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Limited Condition Acquisitions. Notwithstanding anything herein to the contrary, solely in the case of In connection with the incurrence of any Indebtedness or Liens or the making of any Investments Investments, Restricted Payments, prepayments of Restricted Indebtedness, Dispositions or consolidations, mergers, divisions, fundamental changes or other fundamental changesthe designation of any Subsidiaries or Unrestricted Subsidiaries, in each case case, in connection with a Limited Condition AcquisitionAcquisition (any of the foregoing, (a) an “LCA Action” and collectively, the “LCA Actions”), for purposes of determining compliance with any provision of this Agreement which requires that no Default or Event of Default, as applicable, Default has occurred, is continuing or would result from any such actionLCA Action or that the representations and warranties shall be true and correct (or true and correct in all material respects), as applicable, such condition shall shall, at the option of the Company (the Company’s election to exercise such option in connection with any Limited Condition Acquisition, an “LCA Election”), be deemed satisfied, so long as (x) no Default or Event of Default exists and the representations and warranties are true and correct (or true and correct in all material respects, as applicable) on the date of execution of the definitive agreement(s) agreements for such Limited Condition Acquisition are entered into (the “LCA Test Date”) and (y) no Specified Event of Default exists at under clause (a), (b), (h) or (i) of Article VII shall have occurred and is continuing on the time ofeffective date of such LCA Action. For the avoidance of doubt, if the Company has exercised the LCA Election, and immediately after giving effect to, any Default or Event of Default occurs (including as a result of the representations and warranties not being true and correct) following the LCA Test Date and prior to the consummation of such Limited Condition Acquisition, and (b) any such Default or Event of 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.
(a) In connection with any LCA Action, for purposes of:
(i) determining compliance with any provision of this Agreement which requires that any the calculation of the representations and warranties made by any Loan Party Total Leverage Ratio or the Total Net Leverage Ratio; or
(ii) testing baskets set forth in this Agreement Agreement; in each case, upon the LCA Election, the date of determination of whether any such action is permitted hereunder, shall be the LCA Test Date, and if, after giving effect to the Limited Condition Acquisition and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) on a Pro Forma Basis as if they had occurred at the beginning of the most recent four consecutive fiscal quarters ending prior to the LCA Test Date for which consolidated financial statements of the Company are available, the Company could have taken such action on the relevant LCA Test Date in compliance with such ratio or in any other Loan Document be true and correctbasket, such condition ratio or basket shall be deemed satisfiedto have been complied with. For the avoidance of doubt, so long as (x) if the representations Company has made an LCA Election and warranties in this Agreement and any of the other Loan Documents are true and correct in all material respects (without duplication of any materiality qualifier therein) ratios or baskets for which compliance was determined or tested as of the date LCA Test Date are exceeded as a result of execution fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDA of the Company or the Person subject to such Limited Condition Acquisition, at or prior to the consummation of the relevant transaction or action, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations. If the Company has made an LCA Election for any Limited Condition Acquisition, then in connection with any subsequent calculation of any ratio or basket availability with respect to the incurrence of any Indebtedness or Liens or the making of any Investments, Restricted Payments, prepayments of Restricted Indebtedness, Dispositions or fundamental changes or the designation of any Subsidiaries or Unrestricted Subsidiaries, in each case 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(s) agreement for such Limited Condition Acquisition and (y) the Specified Representations (in each case, modified solely to the extent necessary to reflect the applicable terms of such Limited Condition Acquisition as set forth in the definitive agreement(s) governing such transaction) are true and correct in all material respects (is terminated or expires without duplication of any materiality qualifier therein), at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and neither the Borrower nor any other Loan Party such ratio or basket shall be required to bring down any other representation or warranty as calculated both (y) on a condition to the consummation of Pro Forma Basis assuming such Limited Condition Acquisition and other transactions in connection therewith (or the including any incurrence of any Indebtedness and any other ancillary transaction the use of proceeds thereof) have been consummated in connection with and (z) assuming such Limited Condition Acquisition)Acquisition and other transactions in connection therewith have not been consummated.
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Limited Condition Acquisitions. Notwithstanding anything herein to the contrary, solely in the case of the incurrence of any Indebtedness or Liens or the making of any Investments or consolidations, mergers, divisions, or other fundamental changes, in each case in In connection with a any Limited Condition Acquisition, (a) for purposes of determining compliance with any provision of this Agreement which requires to the extent that no Default or Event of Default, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall be deemed satisfied, so long as (x) no Event of Default exists on the date of execution of the definitive agreement(s) for such Limited Condition Acquisition and (y) no Specified Event of Default exists at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and (b) for purposes of determining compliance with any provision of this Agreement which requires that any of the representations and warranties made by any Loan Party set forth in this Agreement or in any other Loan Document be true and correctrequires (a) Pro Forma Compliance with any financial ratio or similar financial test, such condition shall be deemed satisfied, so long (b) compliance with any cap expressed as (x) the representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects (without duplication a percentage of any materiality qualifier therein) as of the date of execution of the definitive agreement(s) for such Limited Condition Acquisition and (y) the Specified Representations (in each case, modified solely to the extent necessary to reflect the applicable terms of such Limited Condition Acquisition as set forth in the definitive agreement(s) governing such transaction) are true and correct in all material respects (without duplication of any materiality qualifier therein), at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and neither the Borrower nor Consolidated EBITDA or Consolidated Total Assets or any other Loan Party shall be required to bring down any other representation or warranty financial metric as a condition to the consummation of such Limited Condition Acquisition, (c) that no Default or Event of Default has occurred, is continuing or would result therefrom (other than in connection with the satisfaction of any conditions to a Permitted Acquisition or the satisfaction of the conditions to any funding of any Incremental Term Loan or the Delayed Draw Term Loan, which shall remain subject to the terms and conditions thereof with respect to the impact, if any, of any Limited Condition Acquisition), or (d) compliance withTransactions. Notwithstanding anything herein to the contrary, for purposes of determining compliance with (i) any provision of this Agreement (other than actual compliance with the financial covenants set forth in Section 6.09(a) and (c)) which requires the calculation of any financial ratio, test or basket (including the Total Net Leverage Ratio, the First Lien Net Leverage Ratio and baskets with respect to the incurrence of any Indebtedness (including any Incremental Facilities), Liens or the Cumulative Amount or the making of any acquisitions or other Investments, Restricted Payments, Asset Sales or fundamental changes) or (ii) any representations and any warranties set forth herein (other ancillary transaction consummated than in connection with the satisfaction of any conditions to any funding of any Incremental Term Loan or the Delayed Draw Term Loan, which shall remain subject to the terms and conditions thereof with respect to the impact, if any, of any Limited Condition Acquisition), the date of determination of such ratio or other provisions, determination of whetheror the occurrence of any Default or Event of Default has occurred, is continuing or would result therefrom, or determination of compliance with any representations or warranties shall, in each case, in connection with any Limited Condition Transaction, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Acquisition, a “Limited Conditionality Election”), which Limited Conditionality Election shall be in respect of all of clauses (a) through (d) above, to the extent applicable), be deemed to be the date the definitive agreements (or other relevant definitive documentation) for such Limited Condition Acquisition are entered into (the “the date of determination of whether any such action is permitted hereunder shall be the Limited Conditionality Test Date”). If on a Pro Forma Basis, and if, after giving pro forma effect to suchthe Limited Condition AcquisitionTransaction and the other transactions to be entered into in connection therewith (including any incurrence or issuance of Indebtedness and the use of proceeds thereof), with such ratios and other provisions calculated as if such Limited Condition Acquisition or other transactionsas if they had occurred at the beginning of the most recent Test Periodtest period ending prior to the Limited Conditionality Test Date, the Borrower could have taken such action on the relevant Limited Conditionality Test Date in compliance with the applicable ratios or other provisions, such provisionssuch ratio, test, basket, representation or warranty, such ratio, test, basket, representation or warranty shall be deemed to have been complied with. For the avoidance of doubt, (i) if, following the Limited Conditionality Test Date, any of such ratios or other provisions are exceeded or breached, tests or amounts are not satisfied as a result of fluctuations in such ratio, test or amount (including due to fluctuations in Consolidated EBITDA or other components of such ratio) or other provisionsof the Borrower or the Person subject to such Limited Condition Transaction), at or prior to the consummation of the relevant Limited Condition Acquisitiontransaction or action, such ratios, tests and other provisionsamounts will not be deemed to not have been exceeded or failed to have been satisfiedunsatisfied as a result of such fluctuations solely for purposes of determining whether the Limited Condition Acquisition is permitted hereunder and (ii) such ratios and compliance with such conditions shall not be tested at the time of consummation of such Limited Condition Acquisition, unless the Borrower elects, in its sole discretion, to test such ratios and compliance with such conditions on the date such Limited Condition Acquisition is consummated. If the Borrower has made a Limited Conditionality Election for any Limited Condition Acquisitionrelevant transaction or action is permitted to be consummated or taken; provided that if the Borrower makes such election, then in connection with any subsequent calculation of any ratio, test or basket availability or compliance with any other provision hereunder (other than actual compliance with the covenants set forth in Section 6.09) on orwith respect to any transaction following the relevant Limited Conditionality Test Date and prior to the earliestearlier of the date on which such Limited Condition AcquisitionTransaction is consummated, or the date that the definitive agreement or irrevocable notice for such Limited Condition AcquisitionTransaction is terminated or expires without consummation of such Limited Condition Acquisition or the date the Borrower makes an election pursuant to the immediately preceding sentenceTransaction, for purposes of determining whether such subsequent transaction is permitted under the Loan Documents, any such ratio, test or basket or compliance with any other provision hereunder shall be calculated both (x)required to be satisfied on a Pro Forma Basis assuming such Limited Condition AcquisitionTransaction and other transactions or actions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) hadhave been consummated on and (ii) such financial ratios, tests or baskets shall not be tested at the time of consummation of such Limited Condition Transaction, unless the Borrower elects in its sole discretion to test such ratio, test or basket on the date such Limited Condition Transaction is consummated instead of the Limited Conditionality Test Date and (y) without giving effect to such Limited Condition Acquisition and the other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof)., and such ratio, basket availability or compliance shall only be satisfied hereunder to the extent satisfied in the circumstances described in both clauses (x) and (y) above..
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Limited Condition Acquisitions. Notwithstanding It is understood and agreed that, notwithstanding anything herein to the contrarycontrary in this Agreement, solely in if the case of the incurrence proceeds of any Indebtedness or Liens or the making of any Investments or consolidations, mergers, divisions, or other fundamental changes, in each case in connection with Incremental Term Facility are being used to finance a Limited Condition Acquisition, and the Borrower has obtained commitments of Lenders to fund such Incremental Term Facility (a“Incremental Financing Commitments”), then (i) the conditions set forth in Section 2.16(b), Section 2.16(d), Section 4.02(a), Section 4.02(b), and clauses (c)(i) and (c)(ii) in the definition of “Permitted Acquisition” shall be limited as follows, if and to the extent such Lenders so agree in their Incremental Financing Commitments: (A) the conditions set forth in Section 2.16(d), Section 4.02(a) and clause (c)(ii) of the definition of “Permitted Acquisition” shall be limited such that the only representations and warranties the accuracy of which shall be a condition to the availability of such Incremental Term Facility shall be (1) customary “specified representations”, and (2) such representations and warranties under the definitive agreement governing such Limited Condition Acquisition (the “Limited Condition Acquisition Agreement”) as entitle the applicable Loan Party (or the applicable Subsidiary) to terminate its obligations under such Limited Condition Acquisition Agreement or decline to consummate such Limited Condition Acquisition, in each case, without paying any penalty or compensation to the other party or incurring liability for purposes breach if such representations and warranties fail to be true and correct, and (B) the reference in Section 2.16(b), Section 4.02(b) and clause (c)(i) in the definition of determining compliance with any provision of this Agreement which requires that “Permitted Acquisition” to no Default or no Event of Default, as applicable, has occurred, is continuing means (1) no Default or would result from any such actionno Event of Default, as applicable, such condition shall have occurred and be deemed satisfiedcontinuing at the time of the execution of the Limited Condition Acquisition Agreement, so long as and (x2) no Event of Default exists on the date of execution of the definitive agreement(sunder Section 8.01(a), 8.01(b), 8.01(g), 8.01(h) for such Limited Condition Acquisition or 8.01(i) shall have occurred and (y) no Specified Event of Default exists be continuing at the time of, and immediately after giving effect to, of the funding of such Incremental Term Facility in connection with the consummation of such Limited Condition Acquisition, and (bii) for purposes of determining compliance with any provision of this Agreement which requires that any of whether the representations and warranties made by any Loan Party conditions set forth in this Agreement Section 2.16(c) or clause (c)(iii) in the definition of “Permitted Acquisition” have been satisfied in connection with such Limited Condition Acquisition, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any other Loan Document be true and correctLimited Condition Acquisition, a “LCA Election”), the date of determination of whether any such condition has been satisfied shall be deemed satisfied, so long as (x) the representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects (without duplication of any materiality qualifier therein) as of to be the date of execution of the definitive agreement(s) for agreement governing such Limited Condition Acquisition is executed (the “LCA Test Date”), and (y) if, for the Specified Representations (in each case, modified solely to the extent necessary to reflect the applicable terms of such Limited Condition Acquisition as set forth and the funding of such Incremental Term Facility in the definitive agreement(s) governing such transaction) are true and correct in all material respects (without duplication of any materiality qualifier therein), at the time of, and immediately after giving effect to, connection with the consummation of such Limited Condition Acquisition, and neither the Loan Party or the applicable Subsidiary would have satisfied such condition on the relevant LCA Test Date, such condition shall be deemed to have been satisfied. If the Borrower nor has made a LCA Election for any other Loan Party shall be required Limited Condition Acquisition, then in connection with any calculation of any ratio, test or basket availability with respect to bring down any other representation or warranty as Specified Transaction (each, a condition “Subsequent Transaction”) following the relevant LCA Test Date and prior to the earlier of the date on which such Limited Condition Acquisition is consummated and the date that the definitive agreement governing such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition, for purposes of determining whether such Subsequent Transaction is permitted under this Agreement, any such ratio, test or basket shall be calculated and tested both on (x) a Pro Forma Basis assuming such Limited Condition Acquisition (and the other transactions in connection therewith have been consummated until such time as the applicable Limited Condition Acquisition has actually closed or the incurrence applicable Limited Condition Acquisition Agreement has been terminated or expires without consummation of such Limited Condition Acquisition, and (y) a standalone basis without giving effect to such Limited Condition Acquisition and the other transactions in connection therewith. It is understood and agreed that this Section 1.08 shall not limit the conditions set forth in Section 4.02 or in the definition of “Permitted Acquisition” with respect to any Indebtedness and proposed Borrowing of Revolving Loans or Swingline Loans or any other ancillary transaction consummated issuance of Letters of Credit, in each case, in connection with such Limited Condition Acquisition)Acquisition or otherwise.
Appears in 1 contract
Samples: Credit Agreement (Health Insurance Innovations, Inc.)
Limited Condition Acquisitions. Notwithstanding anything herein to the contrary, solely in the case of In connection with the incurrence of any Indebtedness or Liens or the making of any Investments Investments, Restricted Payments, prepayments of Restricted Indebtedness, Dispositions or consolidations, mergers, divisions, fundamental changes or other fundamental changesthe designation of any Subsidiaries or Unrestricted Subsidiaries, in each case case, in connection with a Limited Condition AcquisitionAcquisition (any of the foregoing, (a) an “LCA Action” and collectively, the “LCA Actions”), for purposes of determining compliance with any provision of this Agreement which requires that no Default or Event of Default, as applicable, Default has occurred, is continuing or would result from any such actionLCA Action or that the representations and warranties shall be true and correct (or true and correct in all material respects), as applicable, such condition shall shall, at the option of the Company (the Company’s election to exercise such option in connection with any Limited Condition Acquisition, an “LCA Election”), be deemed satisfied, so long as (x) no Default or Event of Default exists and the representations and warranties are true and correct (or true and correct in all material respects, as applicable) on the date of execution of the definitive agreement(s) agreements for such Limited Condition Acquisition are entered into (the “LCA Test Date”) and (y) no Specified Event of Default exists at under clause (a), (b), (h) or (i) of Article VII shall have occurred and is continuing on the time ofeffective date of such LCA Action. For the avoidance of doubt, if the Company has exercised the LCA Election, and immediately after giving effect to, any Default or Event of Default occurs (including as a result of the representations and warranties not being true and correct) following the LCA Test Date and prior to the consummation of such Limited Condition Acquisition, and (b) any such Default or Event of 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.
(a) In connection with any LCA Action, for purposes of:
(i) determining compliance with any provision of this Agreement which requires that any the calculation of the representations and warranties made by any Loan Party Secured Net Leverage Ratio, Total Net Leverage Ratio or Interest Coverage Ratio; or
(ii) testing baskets set forth in this Agreement Agreement; in each case, upon the LCA Election, the date of determination of whether any such action is permitted hereunder, shall be the LCA Test Date, and if, after giving effect to the Limited Condition Acquisition and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) on a Pro Forma Basis as if they had occurred at the beginning of the most recent four consecutive fiscal quarters ending prior to the LCA Test Date for which consolidated financial statements of the Company are available, the Company could have taken such action on the relevant LCA Test Date in compliance with such ratio or in any other Loan Document be true and correctbasket, such condition ratio or basket shall be deemed satisfiedto have been complied with. For the avoidance of doubt, so long as (x) if the representations Company has made an LCA Election and warranties in this Agreement and any of the other Loan Documents are true and correct in all material respects (without duplication of any materiality qualifier therein) ratios or baskets for which compliance was determined or tested as of the date LCA Test Date are exceeded as a result of execution fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDA of the Company or the Person subject to such Limited Condition Acquisition, at or prior to the consummation of the relevant transaction or action, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations. If the Company has made an LCA Election for any Limited Condition Acquisition, then in connection with any subsequent calculation of any ratio or basket availability with respect to the incurrence of any Indebtedness or Liens or the making of any Investments, Restricted Payments, prepayments of Restricted Indebtedness, Dispositions or fundamental changes or the designation of any Subsidiaries or Unrestricted Subsidiaries, in each case 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(s) agreement for such Limited Condition Acquisition and (y) the Specified Representations (in each case, modified solely to the extent necessary to reflect the applicable terms of such Limited Condition Acquisition as set forth in the definitive agreement(s) governing such transaction) are true and correct in all material respects (is terminated or expires without duplication of any materiality qualifier therein), at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and neither the Borrower nor any other Loan Party such ratio or basket shall be required to bring down any other representation or warranty as calculated both (y) on a condition to the consummation of Pro Forma Basis assuming such Limited Condition Acquisition and other transactions in connection therewith (or the including any incurrence of any Indebtedness and any other ancillary transaction the use of proceeds thereof) have been consummated in connection with and (z) assuming such Limited Condition Acquisition)Acquisition and other transactions in connection therewith have not been consummated.
Appears in 1 contract
Limited Condition Acquisitions. Notwithstanding anything herein to the contrarycontrary herein, solely in to the case extent that the terms of the incurrence of any Indebtedness or Liens or the making of any Investments or consolidations, mergers, divisions, or other fundamental changes, in each case in connection with a Limited Condition Acquisition, this Agreement require (ai) for purposes of determining compliance with any provision basket, financial ratio or test, (ii) the absence of this Agreement which requires that no a Default or Event of Default, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall be deemed satisfied, so long as (x) no an Event of Default exists on the date of execution of the definitive agreement(sor (iii) for such Limited Condition Acquisition and (y) no Specified Event of Default exists at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and (b) for purposes of determining compliance with any provision of this Agreement which requires that any of a determination as to whether the representations and warranties made by any Loan Party set forth contained in this Agreement or in any other Loan Document be true and correctDocument, such condition or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be deemed satisfied, so long as (x) the representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects (without duplication and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect), in each case in connection with the consummation of any materiality qualifier thereina Limited Condition Acquisition, the determination of whether the relevant condition is satisfied may be made, at the election of the Borrower, (A) as of on the date of the execution of the definitive agreement(sagreement with respect to such Limited Condition Acquisition (such date, the “LCA Test Date”), or (B) for on the date on which such Limited Condition Acquisition is consummated, in either case, after giving effect to the relevant Limited Condition Acquisition and any related incurrence of Indebtedness, on a Pro Forma Basis; provided, that, notwithstanding the foregoing, in connection with any Limited Condition Acquisition, such Limited Condition Acquisition and the related Indebtedness to be incurred in connection therewith and the use of proceeds thereof shall be deemed incurred and/or applied at the LCA Test Date (yuntil such time as the Indebtedness is actually incurred or the applicable definitive agreement is terminated without actually consummating the applicable Limited Condition Acquisition) and outstanding thereafter for purposes of determining compliance on a Pro Forma Basis with any financial ratio or test (it being understood and agreed that for purposes of determining compliance on a Pro Forma Basis with any applicable financial ratio or test in connection with the Specified Representations (in each casemaking of any Junior Payment, modified solely the Borrower shall demonstrate compliance with the applicable test both after giving effect to the extent necessary to reflect the applicable terms of such Limited Condition Acquisition and assuming that such transaction had not occurred). For the avoidance of doubt, if any of such ratios or amounts for which compliance was determined or tested as set forth of the LCA Test Date are thereafter exceeded or otherwise failed to have been complied with as a result of fluctuations in the definitive agreement(s) governing such transaction) are true and correct ratio or amount (including due to fluctuations in all material respects (without duplication of any materiality qualifier thereinConsolidated EBITDA), at the time of, and immediately after giving effect to, or prior to the consummation of such the relevant Limited Condition Acquisition, and neither the Borrower nor any other Loan Party shall such ratios or amounts will not be required deemed to bring down any other representation have been exceeded or warranty failed to be complied with as a condition to the consummation result of such fluctuations solely for purposes of determining whether the relevant Limited Condition Acquisition (is permitted to be consummated or taken. It is understood and agreed that this Section 1.03(e) shall not limit the incurrence of conditions set forth in Section 4.02 with respect to any Indebtedness and any other ancillary transaction consummated proposed Credit Extension in connection with such a Limited Condition Acquisition)Acquisition or otherwise.
Appears in 1 contract
Samples: Credit Agreement (Zynga Inc)
Limited Condition Acquisitions. Notwithstanding anything herein the foregoing provisions of this Section 2.22 or in any other provision of any Loan Document:
(i) if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, the conditions precedent to Lead Borrower’s right to request such Incremental Facility for a Limited Condition Acquisition shall be limited to the contraryfollowing: (a) on the date of the signing of the definitive acquisition agreement for such Limited Condition Acquisition, solely (x) no Event of Default shall have occurred and be continuing (y) each of the representations and warranties contained in the Loan Documents shall be true and correct in all material respects (except (I) with respect to representations and warranties expressly made as of an earlier date, in which case such representations and warranties were true and correct in all material respects as of such earlier date and (II) that if any such representation or warranty contains any materiality qualifier, such representation or warranty shall be true and correct in all respects); and (b) at the date of closing of such Limited Condition Acquisition and the funding of the applicable Incremental Facility, (A) no Event of Default under Section 7.01(a), (f) or (g) shall have occurred and be continuing, (B) the only representations and warranties the accuracy of which shall be a condition to funding such advance shall be the customary specified representations and the customary specified acquisition agreement representations agreed between the Lead Borrower and the Lenders providing such Incremental Facility; and
(ii) in the case of the incurrence of any Indebtedness indebtedness or Liens liens or the making of any Investments investments, restricted payments, prepayments of subordinated or consolidationsjunior debt, mergers, divisions, asset sales or other fundamental changes, in each case changes or the designation of any restricted subsidiaries or unrestricted subsidiaries in connection with a Limited Condition Acquisition, (a) for purposes at the Lead Borrower’s option, the relevant ratios and baskets shall be determined, and any default or event of determining compliance with any provision of this Agreement which requires that no Default or Event of Defaultdefault blocker shall be tested, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall be deemed satisfied, so long as (x) no Event of Default exists on the date of execution of the definitive agreement(s) acquisition agreements for such Limited Condition Acquisition and (y) no Specified Event of Default exists at are entered into and, subject to the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and (b) for purposes of determining compliance with any provision of this Agreement which requires that any of the representations and warranties made by any Loan Party set forth second proviso contained in this Agreement or clause (ii), calculated as if the acquisition and other pro forma events in any other Loan Document be true and correctconnection therewith were consummated on such date; provided that if the Lead Borrower has made such an election, such condition shall be deemed satisfied, so long as (x) in connection with the representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects (without duplication calculation of any materiality qualifier therein) as ratio or basket with respect to the incurrence of any debt or liens, or the making of any investments, restricted payments, prepayments of subordinated, junior or unsecured debt, asset sales, fundamental changes or the designation of a restricted subsidiary or unrestricted subsidiary r following such election and prior to the earlier of the date of execution of on which such acquisition is consummated or the definitive agreement(sagreement for such acquisition is terminated, any such ratio shall, subject to the proviso below, be calculated on a pro forma basis assuming such acquisition and other pro forma events in connection therewith (including any incurrence of indebtedness) for have been consummated; provided that the consolidated net income (and any other financial defined term derived therefrom) shall not include any consolidated net income of or attributable to the target company or assets associated with any such Limited Condition Acquisition unless and (y) until the Specified Representations (in each case, modified solely to the extent necessary to reflect the applicable terms closing of such Limited Condition Acquisition as set forth in the definitive agreement(s) governing such transaction) are true and correct in all material respects (without duplication of any materiality qualifier therein), at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and neither the Borrower nor any other Loan Party shall be required to bring down any other representation or warranty as a condition to the consummation of such Limited Condition Acquisition (or the incurrence of any Indebtedness and any other ancillary transaction consummated in connection with such Limited Condition Acquisition)have actually occurred.
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Limited Condition Acquisitions. Notwithstanding anything herein to the contrarycontrary herein, solely in to the case extent that the terms of the incurrence of this Agreement require (a) compliance with any Indebtedness basket, financial ratio or Liens or the making of test (including any Investments or consolidations, mergers, divisionsLeverage Ratio test, or any Interest Coverage Ratio test), (b) the absence of a Default or an Event of Default, or (c) a determination as to whether the representations and warranties contained in this Agreement or any other fundamental changesLoan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect), in each case in connection with the consummation of a Limited Condition Acquisition, the determination of whether the relevant condition is satisfied may be made, at the election of the Borrower, (aA) for purposes on the date of determining compliance the execution of the definitive agreement with respect to such Limited Condition Acquisition (such date, the “LCA Test Date”), or (B) on the date on which such Limited Condition Acquisition is consummated, in either case, after giving effect to the relevant Limited Condition Acquisition and any related incurrence of Indebtedness, on a pro forma basis; provided, that, notwithstanding the foregoing, in connection with any provision Limited Condition Acquisition: (1) except as set forth in clause 2(y) below, any condition requiring the absence of this Agreement which requires that a Default or Event of Default shall be satisfied if (x) no Default or Event of Default, Default shall have occurred and be continuing as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall be deemed satisfied, so long as (x) no Event of Default exists on the date of execution of the definitive agreement(s) for such Limited Condition Acquisition applicable LCA Test Date, and (y) no Specified Event of Default exists shall have occurred and be continuing at the time of, and immediately after giving effect to, the of consummation of such Limited Condition Acquisition; (2) if the proceeds of an Incremental Term Loan are being used to finance such Limited Condition Acquisition, then (x) the conditions set forth in Section 2.14(a)(iii) and (bSection 4.02(a) for purposes shall be required to be satisfied at the time of determining compliance with any provision closing of this Agreement which requires that any the Limited Condition Acquisition and funding of such Incremental Term Loan but, if the lenders providing such Incremental Term Loan so agree, the representations and warranties made by any which must be accurate at the time of closing of the Limited Condition Acquisition and funding of such Incremental Term Loan Party set forth in this Agreement or in any may be limited to customary “specified representations” and customary “specified acquisition agreement representations” (i.e., customary SunGard provisions) and such other Loan Document be true and correct, such condition shall be deemed satisfied, so long as (x) the representations and warranties in this Agreement and as may be required by the other Loan Documents are true and correct in all material respects (without duplication of any materiality qualifier therein) as of the date of execution of the definitive agreement(s) for lenders providing such Limited Condition Acquisition Incremental Term Loan, and (y) the Specified Representations (conditions set forth in each caseSection 2.14(a)(ii) shall, modified solely if and to the extent necessary to reflect the applicable terms of lenders providing such Limited Condition Acquisition as set forth in the definitive agreement(s) governing such transaction) are true and correct in all material respects (without duplication of any materiality qualifier therein)Incremental Term Commitments so agree, at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and neither the Borrower nor any other Loan Party shall be required to bring down any other representation or warranty as a condition to the consummation of such Limited Condition Acquisition (or the incurrence of any Indebtedness and any other ancillary transaction consummated in connection with such Limited Condition Acquisition).satisfied
Appears in 1 contract
Samples: Credit Agreement (Helen of Troy LTD)
Limited Condition Acquisitions. Notwithstanding anything herein to In the contrary, solely event that the Borrower notifies the Administrative Agent in the case of the incurrence of writing that any Indebtedness or Liens or the making of any Investments or consolidations, mergers, divisions, or other fundamental changes, in each case in connection with proposed acquisition is a Limited Condition AcquisitionAcquisition and that the Borrower wishes to test the conditions to such acquisition and the Indebtedness that is to be used to finance such acquisition in accordance with this Section, then, the following provisions shall apply: (a) for purposes of determining compliance with any provision of this Agreement which condition to such acquisition or such Indebtedness that requires that no Default or Event of DefaultDefault shall have occurred and be continuing at the time of such acquisition or the incurrence of such Indebtedness, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall be deemed satisfiedsatisfied if (i) no Default or Event of Default shall have occurred and be continuing at the time of the execution of the definitive purchase agreement, so long as merger agreement or other acquisition agreement governing such acquisition and (xii) no Event of Default exists on under any of Sections 9.1(a), 9.1(e) or 9.1(f) shall have occurred and be continuing both before and after giving effect to such acquisition and any Indebtedness incurred in connection therewith; (b) any condition to such acquisition or such Indebtedness that the date representations and warranties in this Agreement and the other Loan Documents shall be true and correct at the time of execution such acquisition or the incurrence of such Indebtedness shall be subject to customary “certain funds” conditionality provisions (including, without limitation, a condition that the definitive agreement(s) for representations and warranties under the relevant agreements relating to such Limited Condition Acquisition and (y) no Specified Event of Default exists at as are material to the time of, and immediately after giving effect to, the consummation of lenders providing such Limited Condition Acquisition, and (b) for purposes of determining compliance with any provision of this Agreement which requires that any of the representations and warranties made by any Loan Party set forth in this Agreement or in any other Loan Document Indebtedness shall be true and correct, but only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations under such condition shall agreement as a result of a breach of such representations and warranties or the failure of those representations and warranties to be deemed satisfiedtrue and correct), so long as (x) the all representations and warranties in this Agreement and the other Loan Documents are true and correct at the time of execution of the definitive purchase agreement, merger agreement or other acquisition agreement governing such acquisition; (c) any financial ratio test or condition may be tested either (i) upon the execution of the definitive agreement with respect to such Limited Condition Acquisition or (ii) upon the consummation of the Limited Condition Acquisition and related incurrence of Indebtedness, in all material respects each case, after giving effect to the relevant Limited Condition Acquisition and related incurrence of Indebtedness, on a pro forma basis; and (without duplication d) except as provided in the next sentence, if the Borrower has made an election with respect to any Limited Condition Acquisition to test a financial ratio test or condition at the time specified in clause (c)(i) of this Section, then in connection with any subsequent calculation of any materiality qualifier therein) as of ratio or basket on or following the relevant date of execution of the definitive agreement(s) for agreement with respect to such Limited Condition Acquisition and prior to the earlier of (yi) the Specified Representations (in each case, modified solely to the extent necessary to reflect the applicable terms of date on which such Limited Condition Acquisition as set forth in is consummated or (ii) the date that the definitive agreement(s) governing such transaction) are true and correct in all material respects (without duplication of any materiality qualifier therein), at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and neither the Borrower nor any other Loan Party shall be required to bring down any other representation or warranty as a condition to the consummation of such Limited Condition Acquisition (or the incurrence of any Indebtedness and any other ancillary transaction consummated in connection with such Limited Condition Acquisition).38
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Limited Condition Acquisitions. Notwithstanding anything herein As it relates to the contrary, any action beingtaken solely in the case of the incurrence of any Indebtedness or Liens or the making of any Investments or consolidations, mergers, divisions, or other fundamental changes, in each case in connection with a Limited Condition Acquisition, (a) for purposes of of:(i) determining compliance with any provision of this Agreement which requires that no requiresthe calculation of any financial ratio or financial test,(i) testing availability under baskets set forth in this Agreement (including basketsdetermined by reference to EBITDA or Total Assets), or(ii) testing whether a Default or Event of DefaultDefault has occurred and, with respect toany New Term Loan to finance such Limited Condition Acquisition, testing whether anyrepresentation or warranty in any Loan Document is correct as applicableof such date,in each case, has occurredat the option of the Borrower (the Borrower’s election to exercise such option in connectionwith any Limited Condition Acquisition, an “LCT Election”), the date of determination of whether anysuch action is continuing or would result from permitted hereunder, any such action, as applicable, such condition shall be deemed satisfied, so long as (x) no Default or Event of Default exists and any suchrepresentation or warranty is correct shall be deemed to be the date the definitive agreements for suchLimited Condition Acquisition are entered into (the “LCT Test Date”), and if, after giving pro formaeffect to the Limited Condition Acquisition (and the other transactions to be entered into in connectiontherewith, including any incurrence of Indebtedness and the use of proceeds thereof, as if they hadoccurred on the first day of the most recently ended Test Period prior to the LCT Test Date), theBorrower or the applicable Restricted Subsidiary would have been permitted to take such action on therelevant LCT Test Date in compliance with such ratio, test or basket, such ratio, test or basket shall bedeemed to have been complied with or if no such Default or Event of Default shall exist on such LCTTest Date or such representation or warranty is correct as of such LCT Test Date then such conditionshall be deemed satisfied on the date of execution consummation of such LCT Test Date for purposes of clause (iii)above; provided that if financial statements for one or more subsequent fiscal periods shall have becomeavailable, the Borrower may elect, in its sole discretion, to redetermine all such ratios, tests or baskets onthe basis of such financial statements, in which case, such date of redetermination shall thereafter bedeemed to be the applicable LCT Test Date. For the avoidance of doubt, if the Borrower has made anLCT Election and any of the definitive agreement(s) ratios, tests or baskets for which compliance was determined or tested as ofthe LCT Test Date would have failed to have been complied with as a result of fluctuations in any suchratio, test or basket, including due to fluctuations in EBITDA or Total Assets of the Borrower or thePerson subject to such Limited Condition Acquisition and (y) no Specified Acquisition, at or prior to the consummation of the relevanttransaction or any Default or Event of Default exists at has occurred and is continuing or any such representationor warranty in any Loan Document is not correct on the time of, and immediately after giving effect to, the consummation date of such Limited Condition Acquisition,such baskets, tests or ratios or requirement will not be deemed to have failed to have been complied withas a result of such circumstance; however, if any ratios improve or baskets increase as a result of suchfluctuations, such improved ratios or baskets may be utilized. If the Borrower has made an LCTElection for any Limited Condition Acquisition, then in connection with any calculation of any ratio, testor basket availability with respect to any transaction permitted hereunder (each, a “SubsequentTransaction”) following the relevant LCT Test Date and (b) prior to the earlier of the date on which suchLimited Condition Acquisition is consummated or the date that the definitive agreement for such Limited-54- Condition Acquisition is terminated or expires without consummation of such Limited ConditionAcquisition, for purposes of determining compliance with whether such Subsequent Transaction is permitted under thisAgreement, any provision of this Agreement which requires that any of the representations and warranties made by any Loan Party set forth in this Agreement such ratio, test or in any other Loan Document be true and correct, such condition basket shall be deemed satisfied, so long as (x) the representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects (without duplication of any materiality qualifier therein) as of the date of execution of the definitive agreement(s) for such required to be satisfied on a pro forma basis assumingsuch Limited Condition Acquisition and other transactions in connection therewith (y) the Specified Representations (in each case, modified solely to the extent necessary to reflect the applicable terms including anyincurrence of such Limited Condition Acquisition as set forth in the definitive agreement(s) governing such transaction) are true and correct in all material respects (without duplication of any materiality qualifier therein), at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and neither the Borrower nor any other Loan Party shall be required to bring down any other representation or warranty as a condition to the consummation of such Limited Condition Acquisition (or the incurrence of any Indebtedness and any other ancillary transaction consummated in connection with such Limited Condition Acquisition).the use of proceeds thereof) have been consummated.-55-
Appears in 1 contract
Samples: Incremental Facility Amendment to Credit Agreement (Clean Harbors Inc)
Limited Condition Acquisitions. Notwithstanding anything herein to the contrarycontrary herein, solely in to the case extent that the terms of this Agreement require (a) compliance with any basket, financial ratio or test (including any Consolidated Net Leverage Ratio test or any Consolidated Interest Coverage Ratio test), (b) the incurrence absence of any Indebtedness a Default or Liens or the making an Event of any Investments or consolidations, mergers, divisionsDefault, or (c) a determination as to whether the representations and warranties contained in this Agreement or any other fundamental changesLoan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect), in each case in connection with the consummation of a Limited Condition Acquisition, the determination of whether the relevant condition is satisfied may be made, at the election of the Borrower upon written notice to the Agent, (A) on the date of the execution of the definitive agreement with respect to such Limited Condition Acquisition (such agreement, the “LCA Agreement” and such date of execution, the “LCA Test Date”), or (B) on the date on which such Limited Condition Acquisition is consummated, in either case, after giving effect to the relevant Limited Condition Acquisition and any related incurrence of Debt, on a pro forma basis; provided that, notwithstanding the foregoing, in connection with any Limited Condition Acquisition: (1) the condition set forth in clause (a) for purposes of determining compliance with any provision the definition of this Agreement which requires that no Default or Event of Default, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition “Permitted Acquisition” shall be deemed satisfied, so long as satisfied if (x) no Event of Default exists on the date of execution shall have occurred and be continuing as of the definitive agreement(s) for such Limited Condition Acquisition applicable LCA Test Date, and (y) no Specified Event of Default exists shall have occurred and be continuing at the time ofof consummation of such Limited Condition Acquisition; (2) if the proceeds of an Incremental Term Loan are being used to finance such Limited Condition Acquisition, then (x) the conditions set forth in Section 2.18(a)(iii) and Section 3.02(i) shall be required to be satisfied at the time of closing of the Limited Condition Acquisition and funding of such Incremental Term Loan but, if the lenders providing such Incremental Term Loan so agree, the representations and warranties which must be accurate at the time of closing of the Limited Condition Acquisition and funding of such Incremental Term Loan may be limited to customary “specified representations” and such other representations and warranties as may be required by the lenders providing such Incremental Term Loan, and immediately after giving effect to(y) the conditions set forth in Section 2.18(a)(ii) and Section 3.02(ii) shall, if and to the extent the lenders providing such Incremental Term Facility so agree, be satisfied if (I) no Default or Event of Default shall have occurred and be continuing as of the applicable LCA Test Date, and (II) no Specified Event of Default shall have occurred and be continuing at the time of the funding of such Incremental Term Facility in connection with the consummation of such Limited Condition Acquisition, ; and (b3) for purposes of determining compliance with any provision of this Agreement which requires that any of the representations and warranties made by any Loan Party set forth in this Agreement or in any other Loan Document be true and correct, such condition shall be deemed satisfied, so long as (x) the representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects (without duplication of any materiality qualifier therein) as of the date of execution of the definitive agreement(s) for such Limited Condition Acquisition and (y) the Specified Representations (related Debt to be incurred in each caseconnection therewith and the use of proceeds thereof shall be deemed consummated, modified solely to the extent necessary to reflect the applicable terms of such Limited Condition Acquisition as set forth in the definitive agreement(s) governing such transaction) are true and correct in all material respects (without duplication of any materiality qualifier therein)made, incurred and/or applied at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and neither the Borrower nor any other Loan Party shall be required LCA Test Date applicable to bring down any other representation or warranty as a condition to the consummation of such Limited Condition Acquisition (until such time as the Debt is actually incurred or the incurrence applicable definitive agreement is terminated without actually consummating the applicable Limited Condition Acquisition) and outstanding thereafter for purposes of determining pro forma compliance with any Indebtedness financial ratio or test (including any Consolidated Net Leverage Ratio test or any Consolidated Interest Coverage Ratio test, or any calculation of the financial covenants set forth in Section 5.03) (it being understood and any other ancillary transaction consummated agreed that for purposes of determining pro forma compliance in connection with the making of any Restricted Payment, the Borrower shall demonstrate compliance with the applicable test both after giving effect to the applicable Limited Condition Acquisition and assuming that such transaction had not occurred). For the avoidance of doubt, if any of such ratios or amounts for which compliance was determined or tested as of the LCA Test Date are thereafter exceeded or otherwise failed to have been complied with as a result of fluctuations in such ratio or amount (including due to fluctuations in Consolidated EBITDA), at or prior to the consummation of the relevant Limited Condition Acquisition, such ratios or amounts will not be deemed to have been exceeded or failed to be complied with as a result of such fluctuations solely for purposes of determining whether the relevant Limited Condition Acquisition is permitted to be consummated or taken. Except as set forth in clause (2) in the proviso to the first sentence in this Section 1.06 in connection with the use of the proceeds of an Incremental Term Loan to finance a Limited Condition Acquisition (and, in the case of such clause (2), only if and to the extent the lenders providing such Incremental Term Loan so agree as provided in such clause (2)), it is understood and agreed that this Section 1.06 shall not limit the conditions set forth in Section 3.02 with respect to any proposed Credit Extension, in connection with a Limited Condition Acquisition or otherwise.
Appears in 1 contract
Samples: Credit Agreement (Scholastic Corp)
Limited Condition Acquisitions. Notwithstanding anything herein to the contrary, solely in In the case of the incurrence of any Indebtedness Debt or Liens liens or the making of any Investments or consolidations, mergers, divisions, or other fundamental changes, in each case changes in connection with a Limited Condition Acquisition, (a) for purposes at the Borrower’s option, the accuracy of determining compliance with any provision representations and warranties, the existence of this Agreement which requires that no any Potential Default or Event of Default, as applicable, has occurred, is continuing or would result from and any such action, as applicable, such condition relevant ratios and baskets shall be deemed satisfied, so long determined on a Pro Forma Basis as (x) no Event of Default exists on the date of execution of the definitive agreement(s) Limited Condition Acquisition Agreement for such Limited Condition Acquisition is entered into and, as applicable, calculated as if the Limited Condition Acquisition and other pro forma events in connection therewith were consummated on such date; provided that (ya) no Specified Event of Limited Condition Acquisition shall be permitted if a payment or bankruptcy Default exists shall exist at the time of, of its consummation (or would be caused thereby) and immediately after giving effect to, no Potential Default or Default shall exist as of the consummation of date the definitive Limited Condition Acquisition Agreement for such Limited Condition AcquisitionAcquisition is entered into, and (b) for purposes of determining compliance with any provision of this Agreement which requires that any of the representations and warranties made by any Loan Party set forth in this Agreement or in any other Loan Document be true and correct, such condition no Limited Condition Acquisition shall be deemed satisfied, so long as permitted if (xi) the representations and warranties in this Agreement and the other Loan Documents are Specified Representations shall not be true and correct in all material respects (without duplication respects, in the case of any materiality qualifier therein) as Specified Representation not qualified by materiality, and true and correct in all respects, in the case of any Specified Representations that are so qualified at the date time of execution of the definitive agreement(s) for such Limited Condition Acquisition and its consummation or (yii) the Specified Representations (in each case, modified solely to the extent necessary to reflect the applicable terms of such Limited Condition Acquisition as set forth in the definitive agreement(s) governing such transaction) are representations and warranties shall not be true and correct in all material respects (without duplication respects, in the case of any materiality qualifier therein), at the time ofrepresentation and warranty not qualified by materiality, and immediately after giving effect totrue and correct in all respects, in the consummation case of any representations and warranties that are so qualified as of the date the definitive Limited Condition Acquisition Agreement for such Limited Condition Acquisition, Acquisition is entered into and neither (c) if the Borrower nor any other Loan Party shall be required to bring down any other representation or warranty as a condition to has made such an election, after the date that the applicable Limited Condition Acquisition Agreement is executed and effective until the earlier of the consummation of such Limited Condition Acquisition (or the LCA Termination Date with respect thereto, in connection with the calculation of any ratio or basket with respect to the incurrence of any Indebtedness and other Debt or Liens, or the making of any other ancillary transaction consummated in connection with Investments any such ratio or basket shall be calculated on a Pro Forma Basis assuming such Limited Condition AcquisitionAcquisition and other pro forma events in connection therewith (including any incurrence of Debt and Liens) have been consummated. Notwithstanding anything to the contrary, the Acquired EBITDA, assets and Net Income of any target of any such Limited Condition Acquisition can only be used in the determination of any relevant baskets hereunder if and when such Limited Condition Acquisition has been consummated (the provisions of this Section 1.9 are referred to herein as the “Limited Condition Acquisition Provisions”).
Appears in 1 contract
Limited Condition Acquisitions. Notwithstanding anything herein to In the contrary, solely event that the Company notifies the Administrative Agent in the case of the incurrence of writing that any Indebtedness or Liens or the making of any Investments or consolidations, mergers, divisions, proposed Permitted Acquisition or other fundamental changes, in each case in connection with investment permitted under Section 6.04 is a Limited Condition AcquisitionAcquisition and that the Company wishes to test the conditions to such Limited Condition Acquisition and, if applicable, the availability of Incremental Term Loans that is to be used to finance such Limited Condition Acquisition in accordance with this Section, then, so long as agreed to by the Administrative Agent and the lenders providing such Incremental Term Loans, the following provisions shall apply:
(a) for purposes of determining compliance with any provision of this Agreement which condition to such Limited Condition Acquisition or such Incremental Term Loans that requires that no Default or Event of DefaultDefault shall have occurred and be continuing at the time of such Limited Condition Acquisition or the incurrence of such Incremental Term Loans, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall be deemed satisfied, so long as satisfied if (xi) no Default or Event of Default exists on shall have occurred and be continuing at the date time of the execution of the definitive agreement(s) for purchase agreement, merger agreement or other acquisition agreement governing such Limited Condition Acquisition and (yii) no Specified Event of Default exists at the time ofunder any of Sections 7.01(a), 7.01(b), 7.01(h) or 7.01(i) shall have occurred and immediately be continuing both before and after giving effect to, the consummation of to such Limited Condition Acquisition, Acquisition and any Indebtedness incurred in connection therewith (including such Incremental Term Loans);
(b) for purposes of determining compliance any condition to such Incremental Term Loans in connection with any provision of this Agreement which requires Limited Condition Acquisition that any of the representations and warranties made by any Loan Party set forth in this Agreement or in any other Loan Document be true and correct, such condition shall be deemed satisfied, so long as (x) the representations and warranties in this Agreement and the other Loan Documents are shall be true and correct at the time of such Limited Condition Acquisition or the incurrence of such Incremental Term Loans shall be subject to customary “SunGard” or other customary applicable “certain funds” conditionality provisions (including, without limitation, a condition that the representations and warranties under the relevant agreements relating to such Limited Condition Acquisition as are material to the lenders providing such Incremental Term Loans shall be true and correct, but only to the extent that the Company or its applicable Subsidiary has the right to terminate its obligations under such agreement as a result of a breach of such representations and warranties or the failure of those representations and warranties to be true and correct);
(c) any financial ratio test or condition, may upon the written election of the Company delivered to the Administrative Agent prior to the execution of the definitive agreement for such Limited Condition Acquisition, be tested either (i) upon the execution of the definitive agreement with respect to such Limited Condition Acquisition or (ii) upon the consummation of the Limited Condition Acquisition and related incurrence of Indebtedness, in all material respects (without duplication each case, after giving effect to the relevant Limited Condition Acquisition and related incurrence of any materiality qualifier thereinIndebtedness, on a pro forma basis; provided that the failure to deliver a notice under this Section 1.06(c) as of prior to the date of execution of the definitive agreement(s) agreement for such Limited Condition Acquisition and (y) the Specified Representations (in each case, modified solely shall be deemed an election to the extent necessary to reflect test the applicable terms financial ratio under sub-clause (ii) of this Section 1.06(c); and
(d) if the Company has made an election with respect to any Limited Condition Acquisition to test a financial ratio test or condition at the time specified in clause (c)(i) of this Section, then in connection with any subsequent calculation of any ratio or basket on or following the relevant date of execution of the definitive agreement with respect to such Limited Condition Acquisition as set forth in and prior to the earlier of (i) the date on which such Limited Condition Acquisition is consummated or (ii) the date that the definitive agreement(s) governing agreement for such transaction) are true and correct in all material respects (Limited Condition Acquisition is terminated or expires without duplication of any materiality qualifier therein), at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and neither the Borrower nor any other Loan Party such ratio or basket shall be required to bring down any other representation or warranty as be satisfied on a condition to the consummation of pro forma basis assuming such Limited Condition Acquisition and other transactions in connection therewith (or including the incurrence or assumption of Indebtedness) have been consummated. Notwithstanding the foregoing, any Indebtedness and any other ancillary transaction consummated calculation of a ratio in connection with determining the Applicable Rate and determining whether or not the Company is in compliance with the requirements of Section 6.11 shall, in each case be calculated assuming such Limited Condition Acquisition)Acquisition and other transactions in connection therewith (including the incurrence or assumption of Indebtedness) have not been consummated. The foregoing provisions shall apply with similar effect during the pendency of multiple Limited Condition Acquisitions such that each of the possible scenarios is separately tested.
Appears in 1 contract
Limited Condition Acquisitions. Notwithstanding anything herein to the contrary, solely in the case of (a) In connection with the incurrence of any Indebtedness or Liens or the making of any Investments or consolidations, mergers, divisions, or other fundamental changesInvestments, in each case case, in connection with a Limited Condition AcquisitionAcquisition (any of the foregoing, (a) an “LCA Action” and collectively, the “LCA Actions”), for purposes of determining compliance with any provision of this Agreement which requires that no Default or Event of Default, as applicable, has occurred, is continuing or would result from any such actionLCA Action or that the representations and warranties shall be true and correct in all material respects (or, if qualified by materiality or Material Adverse Effect, in all respects), as applicable, such condition shall shall, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Acquisition, an “LCA Election”), be deemed satisfied, so long as (x) no Event of Default exists and the representations and warranties are true and correct in all material respects (or, if qualified by materiality or Material Adverse Effect, in all respects) on and as of the date of execution of the definitive agreement(s) agreements for such Limited Condition Acquisition are entered into (the “LCA Test Date”) and (y) no Specified Event of Default exists at under Section 8.01(a), (f) or (g) shall have occurred and is continuing on the time ofeffective date of such LCA Action. For the avoidance of doubt, if the Borrower has exercised the LCA Election, and immediately after giving effect to, any Default occurs (including as a result of the representations and warranties not being true and correct) following the LCA Test Date and prior to the consummation of such Limited Condition Acquisition, and any such 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) In connection with any LCA Action, for purposes of of:
(i) determining compliance with any provision of this Agreement which requires that any the calculation of the representations and warranties made by any Loan Party financial covenants set forth in Section 7.11; or
(ii) testing baskets set forth in this Agreement Agreement; in each case, upon the LCA Election, the date of determination of whether any such action is permitted hereunder, shall be the LCA Test Date, and if, after giving effect to the Limited Condition Acquisition and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) on a Pro Forma Basis as if they had occurred at the beginning of the Applicable Period then most recently ended prior to the LCA Test Date for which consolidated financial statements of Holdings are available, the Loan Parties could have taken such action on the relevant LCA Test Date in compliance with such ratio or in any other Loan Document be true and correctbasket, such condition ratio or basket shall be deemed satisfiedto have been complied with. For the avoidance of doubt, so long as (x) if the representations Borrower has made an LCA Election and warranties in this Agreement and any of the other Loan Documents are true and correct in all material respects (without duplication of any materiality qualifier therein) ratios or baskets for which compliance was determined or tested as of the date LCA Test Date are exceeded as a result of execution fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDA of Holdings or the Person subject to such Limited Condition Acquisition, at or prior to the consummation of the relevant transaction or action, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations. If the Borrower has made an LCA Election for any Limited Condition Acquisition, then in connection with any subsequent calculation of any ratio or basket availability with respect to the incurrence of any Indebtedness or Liens or the making of any Investments, Restricted Payments, prepayments of Indebtedness, Dispositions, fundamental changes or any other purpose, in each case 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(s) agreement for such Limited Condition Acquisition and (y) the Specified Representations (in each case, modified solely to the extent necessary to reflect the applicable terms of such Limited Condition Acquisition as set forth in the definitive agreement(s) governing such transaction) are true and correct in all material respects (is terminated or expires without duplication of any materiality qualifier therein), at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and neither the Borrower nor any other Loan Party such ratio or basket shall be required to bring down any other representation or warranty as calculated both (y) on a condition to the consummation of Pro Forma Basis assuming such Limited Condition Acquisition and other transactions in connection therewith (or the including any incurrence of any Indebtedness and any other ancillary transaction the use of proceeds thereof) have been consummated in connection with and (z) assuming such Limited Condition Acquisition)Acquisition and other transactions in connection therewith have not been consummated.
Appears in 1 contract
Samples: Credit Agreement (Infrastructure & Energy Alternatives, Inc.)
Limited Condition Acquisitions. Notwithstanding anything herein to In the contrary, solely event that the Borrower notifies the Administrative Agent in the case of the incurrence of writing that any Indebtedness or Liens or the making of any Investments or consolidations, mergers, divisions, or other fundamental changes, in each case in connection with proposed acquisition is a Limited Condition AcquisitionAcquisition and that the Borrower wishes to test the conditions to such acquisition and the Indebtedness that is to be used to finance such acquisition in accordance with this Section, then, the following provisions shall apply: (a) for purposes of determining compliance with any provision of this Agreement which condition to such acquisition or such Indebtedness that requires that no Default or Event of DefaultDefault shall have occurred and be continuing at the time of such acquisition or the incurrence of such Indebtedness, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall be deemed satisfiedsatisfied if (i) no Default or Event of Default shall have occurred and be continuing at the time of the execution of the definitive purchase agreement, so long as merger agreement or other acquisition agreement governing such acquisition and (xii) no Event of Default exists on under any of Sections 9.1(a), 9.1(e) or 9.1(f) shall have occurred and be continuing both before and after giving effect to such acquisition and any Indebtedness incurred in connection therewith; (b) any condition to such acquisition or such Indebtedness that the date representations and warranties in this Agreement and the other Loan Documents shall be true and correct at the time of execution such acquisition or the incurrence of such Indebtedness shall be subject to customary “certain funds” conditionality provisions (including, without limitation, a condition that the definitive agreement(s) for representations and warranties under the relevant agreements relating to such Limited Condition Acquisition and (y) no Specified Event of Default exists at as are material to the time of, and immediately after giving effect to, the consummation of lenders providing such Limited Condition Acquisition, and (b) for purposes of determining compliance with any provision of this Agreement which requires that any of the representations and warranties made by any Loan Party set forth in this Agreement or in any other Loan Document Indebtedness shall be true and correct, but only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations under such condition shall agreement as a result of a breach of such representations and warranties or the failure of those representations and warranties to be deemed satisfiedtrue and correct), so long as (x) the all representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects (without duplication of any materiality qualifier therein) as of at the date time of execution of the definitive agreement(spurchase agreement, merger agreement or other acquisition agreement governing such acquisition; (c) for any financial ratio test or condition may be tested either (i) upon the execution of the definitive agreement with respect to such Limited Condition Acquisition or (ii) upon the consummation of the Limited Condition Acquisition and (y) the Specified Representations (related incurrence of Indebtedness, in each case, modified solely after giving effect to the extent necessary to reflect the applicable terms of such relevant Limited Condition Acquisition as set forth in the definitive agreement(s) governing such transaction) are true and correct in all material respects (without duplication of any materiality qualifier therein), at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and neither the Borrower nor any other Loan Party shall be required to bring down any other representation or warranty as a condition to the consummation of such Limited Condition Acquisition (or the related incurrence of any Indebtedness Indebtedness, on a pro forma basis; and any other ancillary transaction consummated in connection with such Limited Condition Acquisition).35
Appears in 1 contract
Limited Condition Acquisitions. Notwithstanding anything herein to the contrary, solely in the case of In connection with the incurrence of any Indebtedness or Liens or the making of any Investments Investments, Restricted Payments, prepayments of Restricted Indebtedness, Dispositions or consolidations, mergers, divisions, fundamental changes or other fundamental changesthe designation of any Subsidiaries or Unrestricted Subsidiaries, in each case case, in connection with a Limited Condition AcquisitionAcquisition (any of the foregoing, (a) an "LCA Action" and collectively, the "LCA Actions"), for purposes of determining compliance with any provision of this Agreement which requires that no Default or Event of Default, as applicable, Default has occurred, is continuing or would result from any such actionLCA Action or that the representations and warranties shall be true and correct (or true and correct in all material respects), as applicable, such condition shall shall, at the option of the Borrower (the Borrower's election to exercise such option in connection with any Limited Condition Acquisition, an "LCA Election"), be deemed satisfied, so long as (x) no Default or Event of Default exists and the representations and warranties are true and correct (or true and correct in all material respects, as applicable) on the date of execution of the definitive agreement(s) agreements for such Limited Condition Acquisition are entered into (the "LCA Test Date"). For the avoidance of doubt, if the Borrower has exercised the LCA Election, and (y) no Specified any Default or Event of Default exists at occurs (including as a result of the time of, representations and immediately after giving effect to, warranties not being true and correct) following the LCA Test Date and prior to the consummation of such Limited Condition Acquisition, and (b) any such Default or Event of 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.
(a) In connection with any LCA Action, for purposes of:
(i) determining compliance with any provision of this Agreement which requires that any the calculation of the representations and warranties made by any Loan Party First Lien Net Leverage Ratio, the Total Net Leverage Ratio or the Secured Net Leverage Ratio; or
(ii) testing baskets set forth in this Agreement Agreement; in each case, upon the LCA Election, the date of determination of whether any such action is permitted hereunder, shall be the LCA Test Date, and if, after giving effect to the Limited Condition Acquisition and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) on a Pro Forma Basis as if they had occurred at the beginning of the most recent four consecutive fiscal quarters ending prior to the LCA Test Date for which consolidated financial statements of Parent are available, the Borrower could have taken such action on the relevant LCA Test Date in compliance with such ratio or in any other Loan Document be true and correctbasket, such condition ratio or basket shall be deemed satisfiedto have been complied with. For the avoidance of doubt, so long as (x) if the representations Borrower has made an LCA Election and warranties in this Agreement and any of the other Loan Documents are true and correct in all material respects (without duplication of any materiality qualifier therein) ratios or baskets for which compliance was determined or tested as of the date LCA Test Date are exceeded as a result of execution fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDA of Parent or the Person subject to such Limited Condition Acquisition, at or prior to the consummation of the relevant transaction or action, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations. If the Borrower has made an LCA Election for any Limited Condition Acquisition, then in connection with any subsequent calculation of any ratio or basket availability with respect to the incurrence of any Indebtedness or Liens or the making of any Investments, Restricted Payments, prepayments of Restricted Indebtedness, Dispositions or fundamental changes or the designation of any Subsidiaries or Unrestricted Subsidiaries, in each case 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(s) agreement for such Limited Condition Acquisition and (y) the Specified Representations (in each case, modified solely to the extent necessary to reflect the applicable terms of such Limited Condition Acquisition as set forth in the definitive agreement(s) governing such transaction) are true and correct in all material respects (is terminated or expires without duplication of any materiality qualifier therein), at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and neither the Borrower nor any other Loan Party such ratio or basket shall be required to bring down any other representation or warranty as calculated both (y) on a condition to the consummation of Pro Forma Basis assuming such Limited Condition Acquisition and other transactions in connection therewith (or the including any incurrence of any Indebtedness and any other ancillary transaction the use of proceeds thereof) have been consummated in connection with and (z) assuming such Limited Condition Acquisition)Acquisition and other transactions in connection therewith have not been consummated.
Appears in 1 contract
Samples: Credit Agreement (NICE Ltd.)
Limited Condition Acquisitions. Notwithstanding anything herein to In the contrary, solely event that the Company notifies the Administrative Agent in the case of the incurrence of writing that any Indebtedness or Liens or the making of any Investments or consolidations, mergers, divisions, or other fundamental changes, in each case in connection with proposed acquisition is a Limited Condition AcquisitionAcquisition and that the Company wishes to test the conditions to such acquisition and the availability of the Incremental Term Loans that is to be used to finance such acquisition in accordance with this Section 1.12, then, so long as agreed to by the lenders providing such Incremental Term Loan, the following provisions shall apply:
(a) for purposes of determining compliance with any provision of this Agreement which condition to such acquisition or such Incremental Term Loan that requires that no Default or Event of DefaultDefault shall have occurred and be continuing at the time of such acquisition or the incurrence of such Incremental Term Loan, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall be deemed satisfiedsatisfied if (i) no Default or Event of Default shall have occurred and be continuing at the time of the execution of the definitive purchase agreement, so long as merger agreement or other acquisition agreement governing such acquisition and (xii) no Event of Default exists on the date under any of execution of the definitive agreement(sSections 8.01(a), 8.01(f) for such Limited Condition Acquisition or 8.01(g) shall have occurred and (y) no Specified Event of Default exists at the time of, be continuing both immediately before and immediately after giving effect to, the consummation of to such Limited Condition Acquisition, acquisition and any Indebtedness incurred in connection therewith (including such Incremental Term Loan); 193389590_5
(b) for purposes of determining compliance with any provision of this Agreement which requires condition to such acquisition or such Incremental Term Loan that any of the representations and warranties made by any Loan Party set forth in this Agreement or in any and the other Loan Document Documents shall be true and correct in all material respects (except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects) at the time of such acquisition or the incurrence of such Incremental Term Loan shall be subject to customary “SunGard” or other customary applicable “certain funds” conditionality provisions (including, without limitation, a condition that the representations and warranties under the relevant agreements relating to such Limited Condition Acquisition as are material to the lenders providing such Incremental Term Loan shall be true and correct, but only to the extent that the Company or its applicable Subsidiary has the right to terminate its obligations under such condition shall agreement as a result of a breach of such representations and warranties or the failure of those representations and warranties to be deemed satisfiedtrue and correct), so long as (x) the all representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects (without duplication except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects) at the time of execution of the definitive purchase agreement, merger agreement or other acquisition agreement governing such acquisition;
(c) any materiality qualifier therein) as financial ratio test or condition, may upon the written election of the Company delivered to the Administrative Agent on or prior to the date of execution of the definitive agreement(sagreement for such acquisition, be tested either (i) upon the execution of the definitive agreement with respect to such Limited Condition Acquisition or (ii) upon the consummation of the Limited Condition Acquisition and related incurrence of Indebtedness, in each case, after giving effect to the relevant Limited Condition Acquisition and related incurrence of Indebtedness, on a Pro Forma Basis; provided that the failure to deliver a notice under this Section 1.12(c) on or prior to the date of execution of the definitive agreement for such Limited Condition Acquisition and (y) the Specified Representations (in each case, modified solely shall be deemed an election to the extent necessary to reflect test the applicable terms financial ratio under subclause (ii) of this Section 1.12(c); and
(d) if the Company has made an election with respect to any Limited Condition Acquisition to test a financial ratio test or condition at the time specified in clause (c)(i) of this Section, then, except as provided in the next sentence, in connection with any subsequent calculation of any ratio or basket on or following the relevant date of execution of the definitive agreement with respect to such Limited Condition Acquisition as set forth in and prior to the earlier of (i) the date on which such Limited Condition Acquisition is consummated or (ii) the date that the definitive agreement(s) governing agreement for such transaction) are true and correct in all material respects (Limited Condition Acquisition is terminated or expires without duplication of any materiality qualifier therein), at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and neither the Borrower nor any other Loan Party such ratio or basket shall be required to bring down any other representation or warranty as be satisfied (x) on a condition to the consummation of Pro Forma Basis assuming such Limited Condition Acquisition and other transactions in connection therewith (or including the incurrence or assumption of Indebtedness) have been consummated and (y) assuming such Limited Condition Acquisition and other transactions in connection therewith (including the incurrence or assumption of Indebtedness) have not been consummated. Notwithstanding the foregoing, any Indebtedness and any other ancillary transaction consummated calculation of a ratio in connection with determining the Applicable Rate and determining whether or not the Company is in compliance with the requirements of Section 7.10 shall, in each case be calculated assuming such Limited Condition Acquisition).Acquisition and other transactions in connection therewith (including the incurrence or assumption of Indebtedness) have not been consummated. The foregoing provisions shall apply with similar effect during the pendency of multiple Limited Condition Acquisitions such that each of the possible scenarios is separately tested. Notwithstanding anything to the contrary herein, in no event shall there be more than two Limited Condition Acquisitions at any time outstanding. 193389590_5
Appears in 1 contract
Limited Condition Acquisitions. Notwithstanding anything herein the foregoing provisions of this Section 2.22 or in any other provision of any Loan Document: (i) if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, the conditions precedent to Lead Borrower’s right to request such Incremental Facility for a Limited Condition Acquisition shall be limited to the contraryfollowing: (a) on the date of the signing of the definitive acquisition agreement for such Limited Condition Acquisition, solely (x) no Event of Default shall have occurred and be continuing (y) each of the representations and warranties contained in the Loan Documents shall be true and correct in all material respects (except (I) with respect to representations and warranties expressly made as of an earlier date, in which case such representations and warranties were true and correct in all material respects as of such earlier date and (II) that if any such representation or warranty contains any materiality qualifier, such representation or warranty shall be true and correct in all respects); and (b) at the date of closing of such Limited Condition Acquisition and the funding of the applicable Incremental Facility, (A) no Event of Default under Section 7.01(a), (f) or (g) shall have occurred and be continuing, (B) the only representations and warranties the accuracy of which shall be a condition to funding such advance shall be the customary specified representations and the customary specified acquisition agreement representations agreed between the Lead Borrower and the Lenders providing such Incremental Facility; and (ii) in the case of the incurrence of any Indebtedness indebtedness or Liens liens or the making of any Investments investments, restricted payments, prepayments of subordinated or consolidationsjunior debt, mergers, divisions, asset sales or other fundamental changes, in each case changes or the designation of any restricted subsidiaries or unrestricted subsidiaries in connection with a Limited Condition Acquisition, (a) for purposes of determining compliance with any provision of this Agreement which requires that no Default or Event of Defaultat the Lead Borrower’s option, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition the relevant ratios and baskets shall be deemed satisfied, so long as (x) no Event of Default exists on the date of execution of the definitive agreement(s) for such Limited Condition Acquisition and (y) no Specified Event of Default exists at the time ofdetermined, and immediately after giving effect to, the consummation any default or event of such Limited Condition Acquisition, and (b) for purposes of determining compliance with any provision of this Agreement which requires that any of the representations and warranties made by any Loan Party set forth in this Agreement or in any other Loan Document be true and correct, such condition default blocker shall be deemed satisfied, so long as (x) the representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects (without duplication of any materiality qualifier therein) as of the date of execution of the definitive agreement(s) for such Limited Condition Acquisition and (y) the Specified Representations (in each case, modified solely to the extent necessary to reflect the applicable terms of such Limited Condition Acquisition as set forth in the definitive agreement(s) governing such transaction) are true and correct in all material respects (without duplication of any materiality qualifier therein), at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and neither the Borrower nor any other Loan Party shall be required to bring down any other representation or warranty as a condition to the consummation of such Limited Condition Acquisition (or the incurrence of any Indebtedness and any other ancillary transaction consummated in connection with such Limited Condition Acquisition).tested,
Appears in 1 contract
Limited Condition Acquisitions. Notwithstanding anything herein to In the contrary, solely event that the Company notifies the Administrative Agent in the case of the incurrence of writing that any Indebtedness or Liens or the making of any Investments or consolidations, mergers, divisions, or other fundamental changes, in each case in connection with proposed acquisition is a Limited Condition AcquisitionAcquisition and that the Company wishes to test the conditions to such acquisition and the availability of the Incremental Term Loans that is to be used to finance such acquisition in accordance with this Section 1.12, then, so long as agreed to by the lenders providing such Incremental Term Loan, the following provisions shall apply:
(a) for purposes of determining compliance with any provision of this Agreement which condition to such acquisition or such Incremental Term Loan that requires that no Default or Event of DefaultDefault shall have occurred and be continuing at the time of such acquisition or the incurrence of such Incremental Term Loan, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall be deemed satisfiedsatisfied if (i) no Default or Event of Default shall have occurred and be continuing at the time of the execution of the definitive purchase agreement, so long as merger agreement or other acquisition agreement governing such acquisition and (xii) no Event of Default exists on the date under any of execution of the definitive agreement(sSections 95159948_7 8.01(a), 8.01(f) for such Limited Condition Acquisition or 8.01(g) shall have occurred and (y) no Specified Event of Default exists at the time of, be continuing both immediately before and immediately after giving effect to, the consummation of to such Limited Condition Acquisition, acquisition and any Indebtedness incurred in connection therewith (including such Incremental Term Loan);
(b) for purposes of determining compliance with any provision of this Agreement which requires condition to such acquisition or such Incremental Term Loan that any of the representations and warranties made by any Loan Party set forth in this Agreement or in any and the other Loan Document Documents shall be true and correct in all material respects (except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects) at the time of such acquisition or the incurrence of such Incremental Term Loan shall be subject to customary “SunGard” or other customary applicable “certain funds” conditionality provisions (including, without limitation, a condition that the representations and warranties under the relevant agreements relating to such Limited Condition Acquisition as are material to the lenders providing such Incremental Term Loan shall be true and correct, but only to the extent that the Company or its applicable Subsidiary has the right to terminate its obligations under such condition shall agreement as a result of a breach of such representations and warranties or the failure of those representations and warranties to be deemed satisfiedtrue and correct), so long as (x) the all representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects (without duplication except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects) at the time of execution of the definitive purchase agreement, merger agreement or other acquisition agreement governing such acquisition;
(c) any materiality qualifier therein) as financial ratio test or condition, may upon the written election of the Company delivered to the Administrative Agent on or prior to the date of execution of the definitive agreement(sagreement for such acquisition, be tested either (i) upon the execution of the definitive agreement with respect to such Limited Condition Acquisition or (ii) upon the consummation of the Limited Condition Acquisition and related incurrence of Indebtedness, in each case, after giving effect to the relevant Limited Condition Acquisition and related incurrence of Indebtedness, on a Pro Forma Basis; provided that the failure to deliver a notice under this Section 1.12(c) on or prior to the date of execution of the definitive agreement for such Limited Condition Acquisition and (y) the Specified Representations (in each case, modified solely shall be deemed an election to the extent necessary to reflect test the applicable terms financial ratio under subclause (ii) of this Section 1.12(c); and
(d) if the Company has made an election with respect to any Limited Condition Acquisition to test a financial ratio test or condition at the time specified in clause (c)(i) of this Section, then, except as provided in the next sentence, in connection with any subsequent calculation of any ratio or basket on or following the relevant date of execution of the definitive agreement with respect to such Limited Condition Acquisition as set forth in and prior to the earlier of (i) the date on which such Limited Condition Acquisition is consummated or (ii) the date that the definitive agreement(s) governing agreement for such transaction) are true and correct in all material respects (Limited Condition Acquisition is terminated or expires without duplication of any materiality qualifier therein), at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and neither the Borrower nor any other Loan Party such ratio or basket shall be required to bring down any other representation or warranty as be satisfied (x) on a condition to the consummation of Pro Forma Basis assuming such Limited Condition Acquisition and other transactions in connection therewith (or including the incurrence or assumption of Indebtedness) have been consummated and (y) assuming such Limited Condition Acquisition and other transactions in connection therewith (including the incurrence or assumption of Indebtedness) have not been consummated. Notwithstanding the foregoing, any Indebtedness and any other ancillary transaction consummated calculation of a ratio in connection with determining the Applicable Rate and determining whether or not the Borrower is in compliance with the requirements of Section 7.10 shall, in each case be calculated assuming such Limited Condition Acquisition)Acquisition and other transactions in connection therewith (including the incurrence or assumption of Indebtedness) have not been consummated. The foregoing provisions shall apply with similar effect during the pendency of multiple Limited Condition Acquisitions such that each of the possible scenarios is separately tested. Notwithstanding anything to the 95159948_7 contrary herein, in no event shall there be more than two Limited Condition Acquisitions at any time outstanding.
Appears in 1 contract
Limited Condition Acquisitions. Notwithstanding anything herein to the contrary, solely in the case of In connection with the incurrence of any Indebtedness or Liens or the making of any Investments Investments, Restricted Payments, prepayments of Restricted Indebtedness, Dispositions or consolidations, mergers, divisions, fundamental changes or other fundamental changesthe designation of any Subsidiaries or Unrestricted Subsidiaries, in each case case, in connection with a Limited Condition AcquisitionAcquisition (any of the foregoing, (a) an “LCA Action” and collectively, the “LCA Actions”), for purposes of determining compliance with any provision of this Agreement which requires that no Default or Event of Default, as applicable, Default has occurred, is continuing or would result from any such actionLCA Action or that the representations and warranties shall be true and correct (or true and correct in all material respects), as applicable, such condition shall shall, at the option of the Company (the Company’s election to exercise such option in connection with any Limited Condition Acquisition, an “LCA Election”), be deemed satisfied, so long as (x) no Default or Event of Default exists and the representations and warranties are true and correct (or true and correct in all material respects, as applicable) on the date of execution of the definitive agreement(s) agreements for such Limited Condition Acquisition are entered into (the “LCA Test Date”) and (y) no Specified Event of Default exists at under clause (a), (b), (h) or (i) of Article VII shall have occurred and is continuing on the time ofeffective date of such LCA Action. For the avoidance of doubt, if the Company has exercised the LCA Election, and immediately after giving effect to, any Default or Event of Default occurs (including as a result of the representations and warranties not being true and correct) following the LCA Test Date and prior to the consummation of such Limited Condition Acquisition, and (b) any such Default or Event of 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.
(a) In connection with any LCA Action, for purposes of:
(i) determining compliance with any provision of this Agreement which requires that any the calculation of the representations and warranties made by any Loan Party Total Leverage Ratio; or
(ii) testing baskets set forth in this Agreement Agreement; in each case, upon the LCA Election, the date of determination of whether any such action is permitted hereunder, shall be the LCA Test Date, and if, after giving effect to the Limited Condition Acquisition and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) on a Pro Forma Basis as if they had occurred at the beginning of the most recent four consecutive fiscal quarters ending prior to the LCA Test Date for which consolidated financial statements of the Company are available, the Company could have taken such action on the relevant LCA Test Date in compliance with such ratio or in any other Loan Document be true and correctbasket, such condition ratio or basket shall be deemed satisfiedto have been complied with. For the avoidance of doubt, so long as (x) if the representations Company has made an LCA Election and warranties in this Agreement and any of the other Loan Documents are true and correct in all material respects (without duplication of any materiality qualifier therein) ratios or baskets for which compliance was determined or tested as of the date LCA Test Date are exceeded as a result of execution fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDA of the Company or the Person subject to such Limited Condition Acquisition, at or prior to the consummation of the relevant transaction or action, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations. If the Company has made an LCA Election for any Limited Condition Acquisition, then in connection with any subsequent calculation of any ratio or basket availability with respect to the incurrence of any Indebtedness or Liens or the making of any Investments, Restricted Payments, prepayments of Restricted Indebtedness, Dispositions or fundamental changes or the designation of any Subsidiaries or Unrestricted Subsidiaries, in each case 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(s) agreement for such Limited Condition Acquisition and (y) the Specified Representations (in each case, modified solely to the extent necessary to reflect the applicable terms of such Limited Condition Acquisition as set forth in the definitive agreement(s) governing such transaction) are true and correct in all material respects (is terminated or expires without duplication of any materiality qualifier therein), at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and neither the Borrower nor any other Loan Party such ratio or basket shall be required to bring down any other representation or warranty as calculated both (y) on a condition to the consummation of Pro Forma Basis assuming such Limited Condition Acquisition and other transactions in connection therewith (or the including any incurrence of any Indebtedness and any other ancillary transaction the use of proceeds thereof) have been consummated in connection with and (z) assuming such Limited Condition Acquisition)Acquisition and other transactions in connection therewith have not been consummated.
Appears in 1 contract
Limited Condition Acquisitions. Notwithstanding anything herein to the contrary, solely foregoing provisions of this Section 2.15 or in the case any other provision of the incurrence Credit Document, unless otherwise agreed by the Borrower, the Administrative Agent, at the direction of Required Lenders, and the Lenders providing the applicable Incremental Term Loans, if the proceeds of any Indebtedness or Liens or Incremental Term Loans are intended to fund a Permitted Acquisition substantially concurrently with the making of any Investments or consolidationsreceipt thereof (a “Limited Condition Acquisition”), mergers, divisions, or other fundamental changes, in each case in connection with the conditions precedent to Xxxxxxxx’s right to request such Incremental Term Loans for a Limited Condition Acquisition, Acquisition shall be limited to the following: (a) on the date of the signing of the definitive acquisition agreement for purposes of determining compliance with any provision of this Agreement which requires that no Default or Event of Default, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall be deemed satisfied, so long as Limited Condition Acquisition (x) no Event of Default exists on the date of execution of the definitive agreement(s) for such Limited Condition Acquisition shall have occurred and be continuing, (y) no Specified Event of Default exists at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and (b) for purposes of determining compliance with any provision of this Agreement which requires that any each of the representations and warranties made by any Loan Party set forth contained in this Agreement or in any other Loan Document be true and correct, such condition the Credit Documents shall be deemed satisfied, so long as (x) the representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects (without duplication of any materiality qualifier thereinexcept (I) with respect to representations and warranties expressly made as of the date of execution of the definitive agreement(s) for an earlier date, in which case such Limited Condition Acquisition representations and (y) the Specified Representations (in each case, modified solely to the extent necessary to reflect the applicable terms of such Limited Condition Acquisition as set forth in the definitive agreement(s) governing such transaction) are warranties must be true and correct in all material respects (without duplication of any materiality qualifier therein), at the time of, and immediately after giving effect to, the consummation as of such Limited Condition Acquisition, earlier date and neither the Borrower nor (II) if any other Loan Party shall be required to bring down any other such representation or warranty as a condition to contains any materiality qualifier, such representation or warranty shall be true and correct in all respects); and (b) at the consummation date of closing of such Limited Condition Acquisition and the funding of the applicable Incremental Term Loans, (A) no Event of Default under Section 7.01(a), (f) or (g) shall have occurred and be continuing and (B) the incurrence only representations and warranties the accuracy of which shall be a condition to funding such Incremental Term Loans shall be the Specified Representations and the representations and warranties contained in the purchase agreement relating to such Permitted Acquisition as are material to the interests of the Lenders but only to the extent that the Borrower or any Indebtedness of its Affiliates have the right to terminate its or their obligations under such purchase agreement as a result of a breach of such representations and any other ancillary transaction consummated warranties in connection with such Limited Condition Acquisition)purchase agreement.
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Limited Condition Acquisitions. Notwithstanding anything herein to In the contrary, solely event that the Borrowers notify the Administrative Agent in the case of the incurrence of writing that any Indebtedness or Liens or the making of any Investments or consolidations, mergers, divisions, or other fundamental changes, in each case in connection with proposed acquisition is a Limited Condition AcquisitionAcquisition and that the Borrowers wish to test the conditions to such acquisition and the Indebtedness that is to be used to finance such acquisition in accordance with this Section 1.13, then, so long as agreed to by the Administrative Agent and the lenders providing such Indebtedness, the following provisions shall apply:
(ai) for purposes of determining compliance with any provision of this Agreement which condition to such Limited Condition Acquisition or such Indebtedness that requires that no Default or Event of DefaultDefault shall have occurred and be continuing at the time of such Limited Condition Acquisition or the incurrence of such Indebtedness, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall be deemed satisfiedsatisfied if (i) no Default or Event of Default shall have occurred and be continuing at the time of the execution of the definitive purchase agreement, so long as merger agreement or other acquisition agreement governing such Limited Condition Acquisition (xthe “LCA Test Date”) and (ii) no Event of Default exists on the date under any of execution of the definitive agreement(sSection 9.1(a), 9.1(g) for or 9.1(l) shall have occurred and be continuing both immediately before and immediately after giving effect to such Limited Condition Acquisition and any Indebtedness incurred in connection therewith (yincluding any such additional Indebtedness);
(ii) no Specified Event of Default exists any condition to such Limited Condition Acquisition or such Indebtedness that the representations and warranties in this Agreement and the other Loan Documents shall be true and correct at the time of, and immediately after giving effect to, the of consummation of such Limited Condition Acquisition, and (b) for purposes Acquisition or the incurrence of determining compliance with any provision of this Agreement which requires that any of the representations and warranties made by any Loan Party set forth in this Agreement or in any other Loan Document be true and correct, such condition Indebtedness shall be deemed satisfied, so long as satisfied if (xi) the all representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects (without duplication except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects) as of any materiality qualifier thereinthe LCA Test Date, or if such representation speaks as of an earlier date, as of such earlier date and (ii) as of the date of execution consummation of the definitive agreement(s) for such Limited Condition Acquisition and Acquisition, (yA) the Specified Representations (in each case, modified solely to representations and warranties under the extent necessary to reflect the applicable terms of relevant definitive agreement governing such Limited Condition Acquisition as set forth are material to the lenders providing such Indebtedness shall be true and correct, but only to the extent that the applicable Borrower or its applicable Subsidiary has the right to terminate its obligations under such agreement or otherwise decline to close such Limited Condition Acquisition as a result of a breach of such representations and warranties or the failure of those representations and warranties to be true and correct and (B) certain of the representations and warranties in this Agreement and the definitive agreement(s) governing other Loan Documents which are customary for similar “funds certain” financings and required by the lenders providing such transaction) are Indebtedness shall be true and correct in all material respects (without duplication except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects);
(iii) any financial ratio test or condition to be tested in connection with such Limited Condition Acquisition and the availability of such Indebtedness will be tested as of the LCA Test Date, in each case, after giving effect to the relevant Limited Condition Acquisition and related incurrence of Indebtedness, on a pro forma basis where NAI-1513461614v2 applicable, and, for the avoidance of doubt, (i) such ratios and baskets shall not be tested at the time of consummation of such Limited Condition Acquisition and (ii) if any materiality qualifier thereinof such ratios are exceeded or conditions are not met following the LCA Test Date, but prior to the closing of such Limited Condition Acquisition, as a result of fluctuations in such ratio or amount (including due to fluctuations in Consolidated EBITDA of the Borrowers or the Person subject to such Limited Condition Acquisition), at or prior to the time ofconsummation of the relevant transaction or action, such ratios will not be deemed to have been exceeded and immediately after giving effect tosuch conditions will not be deemed unmet as a result of such fluctuations solely for purposes of determining whether the relevant transaction or action is permitted to be consummated or taken;
(iv) except as provided in the next sentence, in connection with any subsequent calculation of any ratio or basket on or following the relevant LCA Test Date and prior to the earlier of the date on which such Limited Condition Acquisition is consummated and the date that the definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition, and neither the Borrower nor any other Loan Party such ratio or basket shall be required to bring down any other representation or warranty as calculated (i) on a condition to the consummation of pro forma basis assuming such Limited Condition Acquisition and other transactions in connection therewith (or including the incurrence or assumption of Indebtedness) have been consummated and (ii) assuming such Limited Condition Acquisition and other transactions in connection therewith (including the incurrence or assumption of Indebtedness) have not been consummated. Notwithstanding the foregoing, any Indebtedness and any other ancillary transaction consummated calculation of a ratio in connection with determining the Applicable Interest Rate and determining whether or not the Borrower is in compliance with the financial covenants set forth in Section 6.15 shall, in each case be calculated assuming such Limited Condition Acquisition)Acquisition and other transactions in connection therewith (including the incurrence or assumption of Indebtedness) have not been consummated.
(v) The foregoing provisions shall apply with similar effect during the pendency of multiple Limited Condition Acquisitions such that each of the possible scenarios is separately tested
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Limited Condition Acquisitions. Notwithstanding anything herein to the contrarycontrary herein, solely (i) when calculating any financial ratio or test (including any First Lien Leverage Ratio test, any Consolidated Secured Leverage Ratio test, any Consolidated Leverage Ratio test and the amount of Consolidated Assets or the amount of Consolidated Net Income or Consolidated EBITDA) in the case of connection with the incurrence of any Indebtedness or Indebtedness, the creation of Liens or the making of any Investments or consolidations, mergers, divisions, or other fundamental changes, in each case in connection with a Limited Condition Acquisitionan Investment, (aii) for purposes of determining compliance with any provision of this Agreement which requires that no Default or Event of Default (or any type of Default or Event of Default, as applicable, ) has occurred, is continuing or would result from any such actiontherefrom, as applicable, such condition shall be deemed satisfied, so long as (xiii) no Event of Default exists on the date of execution of the definitive agreement(s) for such Limited Condition Acquisition and (y) no Specified Event of Default exists at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and (b) for purposes of determining compliance with any provision of this Agreement which requires that compliance with any of the representations and representation or warranties made by any Loan Party set forth herein or (iv) determining the satisfaction of all other conditions precedent to the incurrence of Indebtedness, the creation of Liens or the making of an Investment, in this Agreement or each case with respect to clauses (i)-(iv) in any other Loan Document be true and correctconnection with a Limited Condition Acquisition, such condition shall be deemed satisfied, so long as (x) the representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects (without duplication of any materiality qualifier therein) as of the date of execution determination of such ratio or other provisions, determination of whether any Default or Event of Default has occurred, is continuing or would result therefrom, determination of compliance with any representations or warranties or the satisfaction of any other conditions shall, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Acquisition, an “LCA Election,” which LCA Election may be in respect of all or none of (i), (ii), (iii) or (iv)), be deemed to be the date the definitive agreement(sagreements (or other relevant definitive documentation) for such Limited Condition Acquisition are entered into (the “LCA Test Date”). If on a pro forma basis after giving effect to such Limited Condition Acquisition and the other transactions to be entered into in connection therewith (including any incurrence or issuance of Indebtedness, and the use of proceeds thereof), with such ratios and other provisions calculated as if such Limited Condition Acquisition or other transactions had occurred at the beginning of the most recent Test Period ending prior to the LCA Test Date for which financial statements have been (or are required to be) delivered pursuant to Section 5.1, the Borrower could have taken such action on the relevant LCA Test Date in compliance with the #96545445v8 applicable ratios or other provisions, such provisions shall be deemed to have been complied with, unless an Event of Default pursuant to Section 8.1(a) or (f) shall be continuing on the date such Limited Condition Acquisition is consummated. For the avoidance of doubt, (i) if, following the LCA Test Date, any of such ratios or other provisions are exceeded or breached as a result of fluctuations in such ratio (including due to fluctuations in Consolidated EBITDA or other components of such ratio) or other provisions at or prior to the consummation of the relevant Limited Condition Acquisitions, such ratios and other provisions will not be deemed to have been exceeded or failed to have been satisfied as a result of such fluctuations solely for purposes of determining whether the Limited Condition Acquisition is permitted hereunder and (yii) such ratios and compliance with such conditions shall not be tested at the Specified Representations (in each case, modified solely to the extent necessary to reflect the applicable terms time of consummation of such Limited Condition Acquisition as Acquisition. If the Borrower has made an LCA Election for any Limited Condition Acquisition, then in connection with any subsequent calculation of any ratio, basket availability or compliance with any other provision hereunder (other than actual compliance with the financial covenants set forth in Article VI) on or following the relevant LCA Test Date and prior to the earlier of the date on which such Limited Condition Acquisition is consummated and the date that the definitive agreement(s) governing agreement for such transaction) are true and correct in all material respects (Limited Condition Acquisition is terminated or expires without duplication of any materiality qualifier therein), at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and neither the Borrower nor any such ratio, basket or compliance with any other Loan Party provision hereunder shall be required to bring down any other representation or warranty as calculated on a condition to the consummation of pro forma basis assuming such Limited Condition Acquisition and other transactions in connection therewith (including any incurrence or the incurrence issuance of any Indebtedness and any other ancillary transaction the use of proceeds thereof) had been consummated in connection with such Limited Condition Acquisition)on the LCA Test Date.
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Limited Condition Acquisitions. Notwithstanding anything herein to the contrary, In connection with any action being taken solely in the case of the incurrence of any Indebtedness or Liens or the making of any Investments or consolidations, mergers, divisions, or other fundamental changes, in each case in connection with a Limited Condition Acquisition, (a) for purposes of (i) determining compliance with any provision of this Agreement the Loan Documents which requires the calculation of the Total Leverage Ratio or the Interest Coverage Ratio; (ii) determining (A) the accuracy of representations and warranties in Article VI (other than customary “specified representations” and those representations of the seller or target company (as applicable) included in the acquisition agreement for the relevant Limited Condition Acquisition that no are material to the interests of the Lenders and only to the extent that the relevant acquirer has the right to terminate its obligations under such acquisition agreement as a result of such representations (which representations, notwithstanding anything herein to the contrary, shall be required to be accurate on the basis set forth in the acquisition agreement as of the date of the consummation of any Limited Condition Acquisition)), and/or (B) whether a Default or Event of Default, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall be deemed satisfied, so long as Default (x) no other than a Specified Event of Default exists (the absence of which, notwithstanding anything herein to the contrary, shall be required on the date of execution of the definitive agreement(s) for such Limited Condition Acquisition and (y) no Specified Event of Default exists at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, )) has occurred and is continuing or would result therefrom; or (biii) for purposes of determining compliance with any provision of this Agreement which requires that any of the representations and warranties made by any Loan Party testing availability under baskets set forth in this Agreement or in any other the Loan Document be true and correct, such condition shall be deemed satisfied, so long as (x) the representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects (without duplication of any materiality qualifier therein) as of the date of execution of the definitive agreement(s) for such Limited Condition Acquisition and (y) the Specified Representations (Documents; in each case, modified solely to the extent necessary to reflect the applicable terms of such Limited Condition Acquisition as set forth in the definitive agreement(s) governing such transaction) are true and correct in all material respects (without duplication of any materiality qualifier therein), at the time of, and immediately after giving effect to, option of the consummation of Company (the Company’s election to exercise such option in connection with any Limited Condition Acquisition, and neither an “LCA Election”), the Borrower nor date of determination of whether any other such action is permitted under the Loan Party Documents, shall be required deemed to bring down any other representation or warranty as a condition to be the consummation of date the definitive agreement for such Limited Condition Acquisition MSGN – A&R Credit Agreement (or the incurrence of any Indebtedness and any other ancillary transaction consummated in connection with such Limited Condition Acquisition2019).
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Limited Condition Acquisitions. Notwithstanding anything herein to the contrary, solely in the case of (a) In connection with the incurrence of any Indebtedness or Liens or the making of any Investments or consolidations, mergers, divisions, or other fundamental changesInvestments, in each case case, in connection with a Limited Condition AcquisitionAcquisition (any of the foregoing, (a) an “LCA Action” and collectively, the “LCA Actions”), for purposes of determining compliance with any provision of this Agreement which requires that no Default or Event of Default, as applicable, Default has occurred, is continuing or would result from any such actionLCA Action or that the representations and warranties shall be true and correct (or true and correct in all material respects), as applicable, such condition shall shall, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Acquisition, an “LCA Election”), be deemed satisfied, so long as (x) no Default or Event of Default exists and the representations and warranties are true and correct in all material respects (or, if qualified by materiality or Material Adverse Effect, in all respects) on the date of execution of the definitive agreement(s) agreements for such Limited Condition Acquisition are entered into (the “LCA Test Date”) and (y) no Specified Event of Default exists at under Section 8.01(a), (f) or (g) shall have occurred and is continuing on the time ofeffective date of such LCA Action. For the avoidance of doubt, if the Borrower has exercised the LCA Election, and immediately after giving effect to, any Default or Event of Default occurs (including as a result of the representations and warranties not being true and correct) following the LCA Test Date and prior to the consummation of such Limited Condition Acquisition, and any such Default or Event of 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) In connection with any LCA Action, for purposes of of:
(i) determining compliance with any provision of this Agreement which requires that the calculation of any of financial ratios (including the representations and warranties made by any Loan Party financial covenants set forth in Section 7.11); or
(ii) testing baskets set forth in this Agreement Agreement; in each case, upon the LCA Election, the date of determination of whether any such action is permitted hereunder, shall be the LCA Test Date, and if, after giving effect to the Limited Condition Acquisition and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) on a Pro Forma Basis as if they had occurred at the beginning of the most recent four consecutive fiscal quarters ending prior to the LCA Test Date for which consolidated financial statements of Holdings are available, the Borrower could have taken such action on the relevant LCA Test Date in compliance with such ratio or in any other Loan Document be true and correctbasket, such condition ratio or basket shall be deemed satisfiedto have been complied with. For the avoidance of doubt, so long as (x) if the representations Borrower has made an LCA Election and warranties in this Agreement and any of the other Loan Documents are true and correct in all material respects (without duplication of any materiality qualifier therein) ratios or baskets for which compliance was determined or tested as of the date LCA Test Date are exceeded as a result of execution fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDA of the Borrower or the Person subject to such Limited Condition Acquisition, at or prior to the consummation of the relevant transaction or action, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations. If the Borrower has made an LCA Election for any Limited Condition Acquisition, then in connection with any subsequent calculation of any ratio or basket availability with respect to the incurrence of any Indebtedness or Liens or the making of any Investments, Restricted Payments, prepayments of Indebtedness, Dispositions or fundamental changes, in each case 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(s) agreement for such Limited Condition Acquisition and (y) the Specified Representations (in each case, modified solely to the extent necessary to reflect the applicable terms of such Limited Condition Acquisition as set forth in the definitive agreement(s) governing such transaction) are true and correct in all material respects (is terminated or expires without duplication of any materiality qualifier therein), at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and neither the Borrower nor any other Loan Party such ratio or basket shall be required to bring down any other representation or warranty as calculated on a condition to the consummation of Pro Forma Basis assuming such Limited Condition Acquisition and other transactions in connection therewith (or the including any incurrence of any Indebtedness and any other ancillary transaction consummated in connection with such Limited Condition Acquisition)the use of proceeds thereof) have been consummated.
Appears in 1 contract
Limited Condition Acquisitions. Notwithstanding anything herein the foregoing provisions of this Section 2.22 or in any other provision of any Loan Document:
(i) if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, the conditions precedent to Lead Borrower’s right to request such Incremental Facility for a Limited Condition Acquisition shall be limited to the contraryfollowing: (a) on the date of the signing of the definitive acquisition agreement for such Limited Condition Acquisition, solely (x) no Event of Default shall have occurred and be continuing (y) each of the representations and warranties contained in the Loan Documents shall be true and correct in all material respects (except (I) with respect to representations and warranties expressly made as of an earlier date, in which case such representations and warranties were true and correct in all material respects as of such earlier date and (II) that if any such representation or warranty contains any materiality qualifier, such representation or warranty shall be true and correct in all respects); and (b) at the date of closing of such Limited Condition Acquisition and the funding of the applicable Incremental Facility, (A) no Event of Default under Section 7.01(a), (f) or (g) shall have occurred and be continuing, (B) the only representations and warranties the accuracy of which shall be a condition to funding such advance shall be the customary specified representations and the customary specified acquisition agreement representations agreed between the Lead Borrower and the Lenders providing such Incremental Facility; and
(ii) in the case of the incurrence of any Indebtedness indebtedness or Liens liens or the making of any Investments investments, restricted payments, prepayments of subordinated or consolidationsjunior debt, mergers, divisions, asset sales or other fundamental changes, in each case changes or the designation of any restricted subsidiaries or unrestricted subsidiaries in connection with a Limited Condition Acquisition, (a) for purposes at the Lead Borrower’s option, the relevant ratios and baskets shall be determined, and any default or event of determining compliance with any provision of this Agreement which requires that no Default or Event of Defaultdefault blocker shall be tested, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall be deemed satisfied, so long as (x) no Event of Default exists on the date of execution of the definitive agreement(s) acquisition agreements for such Limited Condition Acquisition and (y) no Specified Event of Default exists at are entered into and, subject to the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and (b) for purposes of determining compliance with any provision of this Agreement which requires that any of the representations and warranties made by any Loan Party set forth second proviso contained in this Agreement or clause (ii), calculated as if the acquisition and other pro forma events in any other Loan Document be true and correctconnection therewith were consummated on such date; provided that if the Lead Borrower has made such an election, such condition shall be deemed satisfied, so long as (x) in connection with the representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects (without duplication calculation of any materiality qualifier therein) as ratio or basket with respect to the incurrence of any debt or liens, or the making of any investments, restricted payments, prepayments of subordinated, junior or unsecured debt, asset sales, fundamental changes or the designation of a restricted subsidiary or unrestricted subsidiary r following such election and prior to the earlier of the date of execution of on which such acquisition is consummated or the definitive agreement(sagreement for such acquisition is terminated, any such ratio shall, subject to the proviso below, be calculated on a pro forma basis assuming such acquisition and other pro forma events in connection therewith (including any incurrence of indebtedness) for have been consummated; provided that the consolidated net income (and any other financial defined term derived therefrom) #94168740v7#95106251v8 shall not include any consolidated net income of or attributable to the target company or assets associated with any such Limited Condition Acquisition unless and (y) until the Specified Representations (in each case, modified solely to the extent necessary to reflect the applicable terms closing of such Limited Condition Acquisition as set forth in the definitive agreement(s) governing such transaction) are true and correct in all material respects (without duplication of any materiality qualifier therein), at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and neither the Borrower nor any other Loan Party shall be required to bring down any other representation or warranty as a condition to the consummation of such Limited Condition Acquisition (or the incurrence of any Indebtedness and any other ancillary transaction consummated in connection with such Limited Condition Acquisition)have actually occurred.
Appears in 1 contract
Limited Condition Acquisitions. Notwithstanding anything herein to In the contrary, solely event that the Parent Borrower notifies the Administrative Agent in the case of the incurrence of writing that any Indebtedness or Liens or the making of any Investments or consolidations, mergers, divisions, proposed Acquisition or other fundamental changes, in each case in connection with Investment is a Limited Condition AcquisitionAcquisition and that the Parent Borrower wishes to test the conditions to such Acquisition or other Investment and any Indebtedness that is to be used to finance such Acquisition or other Investment in accordance with this Section 1.10, then (with respect to any borrowing of Incremental Term Loans, so long as agreed to by the Administrative Agent and the lenders providing such Indebtedness), the following provisions shall apply: (a) for purposes of determining compliance with any provision of this Agreement which condition to such Limited Condition Acquisition or such Indebtedness that requires that no Default or Event of DefaultDefault shall have occurred and be continuing at the time of such Limited Condition Acquisition or the incurrence of such Indebtedness, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall be deemed satisfiedsatisfied if (i) no Default or Event of Default shall have occurred and be continuing at the time of the execution of the definitive purchase agreement, so long as merger agreement or other acquisition agreement governing such Limited Condition Acquisition (xthe “LCA Test Date”) and (ii) no Event of Default exists on the date under any of execution of the definitive agreement(sSection 7.01(a) for or 7.01(f) shall have occurred and be continuing both immediately before and immediately after giving effect to such Limited Condition Acquisition and any Indebtedness incurred in connection therewith (yincluding any such additional Indebtedness); (b) no Specified Event of Default exists any condition to such Limited Condition Acquisition or such Indebtedness that the representations and warranties in this Agreement and the other Loan Documents shall be true and correct at the time of, and immediately after giving effect to, the of consummation of such Limited Condition Acquisition, and (b) for purposes Acquisition or the incurrence of determining compliance with any provision of this Agreement which requires that any of the representations and warranties made by any Loan Party set forth in this Agreement or in any other Loan Document be true and correct, such condition Indebtedness shall be deemed satisfied, so long as satisfied if (xi) the all representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects (without duplication except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects) as of any materiality qualifier thereinthe LCA Test Date, or if such representation speaks as of an earlier date, as of such earlier date and (ii) as of the date of execution consummation of the definitive agreement(s) for such Limited Condition Acquisition and Acquisition, (yA) the Specified Representations (in each case, modified solely to representations and warranties under the extent necessary to reflect the applicable terms of relevant definitive agreement governing such Limited Condition Acquisition as set forth are material to the lenders providing such Indebtedness shall be true and correct, but only to the extent that the Parent Borrower or its applicable Subsidiary has the right to terminate its obligations under such agreement or otherwise decline to close such Limited Condition Acquisition as a result of a breach of such representations and warranties or the failure of those representations and warranties to be true and correct and (B) certain of the representations and warranties in this Agreement and the definitive agreement(s) governing other Loan Documents which are customary for similar “funds certain” financings and required by the lenders providing such transaction) are Indebtedness shall be true and correct in all material respects (without duplication of except for any representation and warranty that is qualified by materiality qualifier therein)or reference to Material Adverse Effect, at the time of, which such representation and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and neither the Borrower nor any other Loan Party warranty shall be required to bring down any other representation or warranty as a condition to the consummation of such Limited Condition Acquisition (or the incurrence of any Indebtedness true and any other ancillary transaction consummated correct in connection with such Limited Condition Acquisitionall respects).;
Appears in 1 contract
Limited Condition Acquisitions. Notwithstanding anything herein the foregoing provisions of this Section 2.22 or in any other provision of any Notes Document:
(i) if the proceeds of any Incremental Note Facility are intended to be applied to finance a Limited Condition Acquisition, the conditions precedent to the contraryIssuer’s right to request such Incremental Note Facility for a Limited Condition Acquisition shall (so long as the requirements of Section 2.22(a) (other than clauses (x) and (xi) thereof) are met with respect to such Incremental Note Facility) be limited to the following: (a) on the date of the signing of the definitive acquisition agreement for such Limited Condition Acquisition (x) no Event of Default shall have occurred and be continuing (y) each of the representations and warranties contained in the Notes Documents shall be true and correct in all material respects (except (I) with respect to representations and warranties expressly made as of an earlier date, solely in which case such representations and warranties were true and correct in all material respects as of such earlier date and (II) that if any such representation or warranty contains any materiality qualifier, such representation or warranty shall be true and correct in all respects); and (b) at the date of closing of such Limited Condition Acquisition and the funding of the applicable Incremental Note Facility, (A) no Event of Default under Section 7.01(a), (f) or (g) shall have occurred and be continuing, (B) the only representations and warranties the accuracy of which shall be a condition to funding such advance shall be the Specified Representations and the Specified Acquisition Agreement Representations, and
(ii) in the case of the incurrence of any Indebtedness indebtedness or Liens liens or the making of any Investments investments, restricted payments, prepayments of subordinated or consolidationsjunior debt, mergers, divisions, asset sales or other fundamental changes, in each case changes or the designation of any restricted subsidiaries or unrestricted subsidiaries in connection with a Limited Condition Acquisition, at the Issuer’s option, the relevant ratios and baskets (other than those set forth in clause (a), (b), (c) for purposes and (d) of determining compliance with the definition of “Incremented Cap”) shall be determined, and any provision default or event of this Agreement which requires that no Default or Event of Defaultdefault blocker shall be tested, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall be deemed satisfied, so long as (x) no Event of Default exists on the date of execution of the definitive agreement(s) acquisition agreements for such Limited Condition Acquisition and (y) no Specified Event of Default exists at are entered into and, subject to the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and (b) for purposes of determining compliance with any provision of this Agreement which requires that any of the representations and warranties made by any Loan Party set forth second proviso contained in this Agreement or clause (ii), calculated as if the acquisition and other pro forma events in any other Loan Document be true and correctconnection therewith were consummated on such date; provided that if the Issuer has made such an election, such condition shall be deemed satisfied, so long as (x) in connection with the representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects (without duplication calculation of any materiality qualifier therein) as ratio or basket with respect to the incurrence of any debt or liens, or the making of any investments, restricted payments, prepayments of subordinated, junior or unsecured debt, asset sales, fundamental changes or the designation of a restricted subsidiary or unrestricted subsidiary on or following such date and prior to the earlier of the date of execution of on which such acquisition is consummated or the definitive agreement(sagreement for such acquisition is terminated, any such ratio shall, subject to the proviso below, be calculated on a pro forma basis assuming such acquisition and other pro forma events in connection therewith (including any incurrence of indebtedness) for have been consummated; provided that the consolidated net income (and any other financial defined term derived therefrom) shall not include any consolidated net income of or attributable to the target company or assets associated with any such Limited Condition Acquisition unless and (y) until the Specified Representations (in each case, modified solely to the extent necessary to reflect the applicable terms closing of such Limited Condition Acquisition as set forth in the definitive agreement(s) governing such transaction) are true and correct in all material respects (without duplication of any materiality qualifier therein), at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and neither the Borrower nor any other Loan Party shall be required to bring down any other representation or warranty as a condition to the consummation of such Limited Condition Acquisition (or the incurrence of any Indebtedness and any other ancillary transaction consummated in connection with such Limited Condition Acquisition)have actually occurred.
Appears in 1 contract
Limited Condition Acquisitions. Notwithstanding anything herein As it relates to the contrary, any action being taken solely in the case of the incurrence of any Indebtedness or Liens or the making of any Investments or consolidations, mergers, divisions, or other fundamental changes, in each case in connection with a Limited Condition Acquisition, (a) for purposes of of:
(i) determining compliance with any provision of this Agreement which requires that no the calculation of any financial ratio or financial test,
(ii) testing availability under baskets set forth in this Agreement (including baskets determined by reference to EBITDA or Total Assets), or
(iii) testing whether a Default or Event of DefaultDefault has occurred and, with respect to any New Term Loan to finance such Limited Condition Acquisition, testing whether any representation or warranty in any Loan Document is correct as of such date, in each case, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Acquisition, an “LCT Election”), the date of determination of whether any such action is permitted hereunder, any such Default or Event of Default exists and any such representation or warranty is correct shall be deemed to be the date the definitive agreements for such Limited Condition Acquisition are entered into (the “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 and the use of proceeds thereof, as applicableif they had occurred on the first day of the most recently ended Test Period prior to the LCT Test Date), has occurredthe Borrower or the applicable Restricted Subsidiary would have been permitted to take such action on the relevant LCT Test Date in compliance with such ratio, test or basket, such ratio, test or basket shall be deemed to have been complied with or if no such Default or Event of Default shall exist on such LCT Test Date or such representation or warranty is continuing or would result from any correct as of such action, as applicable, LCT Test Date then such condition shall be deemed satisfied, so long as (x) no Event of Default exists satisfied on the date of execution consummation of such LCT Test Date for purposes of clause (iii) above; provided that if financial statements for one or more subsequent fiscal periods shall have become available, the Borrower may elect, in its sole discretion, to redetermine all such ratios, tests or baskets on the basis of such financial statements, in which case, such date of redetermination shall thereafter be deemed to be the applicable LCT Test Date. For the avoidance of doubt, if the Borrower has made an LCT Election and any of the ratios, tests or baskets for which compliance was determined or tested as of the LCT Test Date would have failed to have been complied with as a result of fluctuations in any such ratio, test or basket, including due to fluctuations in EBITDA or Total Assets of the Borrower or the Person subject to such Limited Condition Acquisition, at or prior to the consummation of the relevant transaction or any Default or Event of Default has occurred and is continuing or any such representation or warranty in any Loan Document is not correct on the date of such Limited Condition Acquisition, such baskets, tests or ratios or requirement will not be deemed to have failed to have been complied with as a result of such circumstance; however, if any ratios improve or baskets increase as a result of such fluctuations, such improved ratios or baskets may be utilized. If the Borrower has made an LCT Election for any Limited Condition Acquisition, then in connection with any calculation of any ratio, test or basket availability with respect to any transaction permitted hereunder (each, a “Subsequent Transaction”) following the relevant LCT Test Date and prior to the earlier of the date on which such Limited Condition Acquisition is consummated or the date that the definitive agreement(s) agreement for such Limited Condition Acquisition and (y) no Specified Event of Default exists at the time of, and immediately after giving effect to, the is terminated or expires without consummation of such Limited Condition Acquisition, and (b) for purposes of determining compliance with whether such Subsequent Transaction is permitted under this Agreement, any provision of this Agreement which requires that any of the representations and warranties made by any Loan Party set forth in this Agreement such ratio, test or in any other Loan Document be true and correct, such condition basket shall be deemed satisfied, so long as (x) the representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects (without duplication of any materiality qualifier therein) as of the date of execution of the definitive agreement(s) for required to be satisfied on a pro forma basis assuming such Limited Condition Acquisition and other transactions in connection therewith (y) the Specified Representations (in each case, modified solely to the extent necessary to reflect the applicable terms of such Limited Condition Acquisition as set forth in the definitive agreement(s) governing such transaction) are true and correct in all material respects (without duplication of including any materiality qualifier therein), at the time of, and immediately after giving effect to, the consummation of such Limited Condition Acquisition, and neither the Borrower nor any other Loan Party shall be required to bring down any other representation or warranty as a condition to the consummation of such Limited Condition Acquisition (or the incurrence of any Indebtedness and any other ancillary transaction consummated in connection with such Limited Condition Acquisition)the use of proceeds thereof) have been consummated.
Appears in 1 contract
Samples: Credit Agreement (Clean Harbors Inc)
