Common use of Limited Condition Transactions Clause in Contracts

Limited Condition Transactions. Notwithstanding anything in this Agreement or any Loan Document to the contrary, to the extent that any provision requires (x) compliance with any financial ratio or test (which, where calculated on a pro forma basis, shall take into account pro forma cost savings and synergy add-backs), (y) the absence of any Default or Event of Default or (z) compliance with any condition to (1) the consummation of any transaction in connection with any acquisition or similar Investment or any fundamental change, (2) the making of any Restricted Payment, (3) the incurrence of any Debt or Lien in connection therewith and/or (4) the making of any restricted payment in respect of any Junior Debt, the determination of whether the relevant condition is satisfied may be made, at the election of the Borrower: (A) in the case of any acquisition or similar Investment or any fundamental change, either (I) at the time of the execution of the definitive agreement with respect to the relevant acquisition or similar Investment or any fundamental change or (II) at the time of the consummation of the relevant acquisition or similar Investment or any fundamental change, in either case after giving effect to the acquisition or similar Investment or any fundamental change and any related Debt on a pro forma basis, (B) in the case of any Restricted Payment made within 60 days of the declaration of such restricted payment, either (I) at the time of the declaration of such Restricted Payment or (II) at the time of the making of such Restricted Payment, in either case after giving effect to the relevant restricted payment on a pro forma basis, (C) in the case of any Debt or Lien in connection therewith, either (I) at the time of entry into the commitment for such Debt or Lien or (II) at the time of the incurrence of such Debt or Lien, in either case after giving effect to the relevant Debt on a pro forma basis and/or (D) in the case of any restricted payment in respect of any Junior Debt made within 60 days of delivering an irrevocable notice, either (I) at the time of delivery an irrevocable notice (which may be conditional) with respect to such restricted payment or (II) at the time of the making of such restricted payment, in either case after giving effect to the relevant restricted payment and any substantially concurrent incurrence of Debt on a pro forma basis. For the avoidance of doubt, if any of such ratios, tests or caps are exceeded as a result of fluctuations in such ratios, tests or caps (including due to fluctuations in EBITDAX of the Borrower or the person subject to such acquisition or Investment or other transaction), at or prior to the consummation of the relevant transaction or action, such ratios, tests or caps 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.

Limited Condition Transactions. Notwithstanding anything to the contrary in this Agreement or Agreement, in connection with any Loan Document to the contraryaction being taken in connection with a Limited Condition Transaction, to the extent that for purposes of: (i) determining compliance with any provision of this Agreement which requires (x) compliance with the calculation of any financial ratio or test test, including the Consolidated First Lien Net Leverage Ratio and Consolidated Total Net Leverage Ratio (whichand, where calculated on a pro forma basisfor the avoidance of doubt, shall take into account pro forma cost savings and synergy add-backsany financial ratio set forth in Section 2.15(a), ); or (yii) testing availability under baskets set forth in this Agreement (including baskets determined by reference to Consolidated EBITDA or Consolidated Total Assets); or (iii) determining other compliance with this Agreement (including the absence of any determination that no Default or Event of Default (or any type of Default or Event of Default) has occurred, is continuing or would result therefrom); in each case, at the option of the Borrower (z) compliance with any condition the Borrower’s election to (1) the consummation of any transaction exercise such option in connection with any acquisition or similar Investment or any fundamental changeLimited Condition Acquisition, (2) the making of any Restricted Payment, (3) the incurrence of any Debt or Lien in connection therewith and/or (4) the making of any restricted payment in respect of any Junior Debtan “LCT Election”), the date of determination of whether the relevant condition any such action is satisfied may permitted hereunder shall be made, at the election of the Borrower: made (A1) in the case of any acquisition (including by way of merger) or similar Investment (including the assumption or any fundamental changeincurrence of Indebtedness in connection therewith), either (I) at the time of (or on the basis of the Section 9.01 Financials for the most recently ended Test Period at the time of) either (x) the execution of the definitive agreement with respect to the relevant such acquisition or similar Investment or any fundamental change or (IIy) at the time of the consummation of the relevant such acquisition or similar Investment or any fundamental change, in either case after giving effect to the acquisition or similar Investment or any fundamental change and any related Debt on a pro forma basisInvestment, (B2) in the case of any Restricted Payment made within 60 days Dividend, at the time of (or on the basis of the Section 9.01 Financials for the most recently ended Test Period at the time of) (x) the declaration of such restricted payment, either (I) at the time of the declaration of such Restricted Payment Dividend or (IIy) at the time of the making of such Restricted Payment, in either case after giving effect to the relevant restricted payment on a pro forma basis, Dividend and (C3) in the case of any Debt voluntary or Lien in connection therewithoptional payment or prepayment on or redemption or acquisition for value of any Indebtedness subject to Section 10.07(a), either (I) at the time of entry into (or on the commitment basis of the Section 9.01 Financials for such Debt or Lien or (II) the most recently ended Test Period at the time of) (x) delivery of the incurrence of such Debt or Lien, in either case after giving effect to the relevant Debt on a pro forma basis and/or (D) in the case of any restricted payment in respect of any Junior Debt made within 60 days of delivering an irrevocable notice, either (I) at the time of delivery an irrevocable notice (which may be conditional) notice with respect to such restricted payment or prepayment or redemption or acquisition of such Indebtedness or (IIy) at the time of the making of such restricted paymentvoluntary or optional payment or prepayment on or redemption or acquisition for value of any Indebtedness (the “LCT Test Date”), and if, for the Limited Condition Transaction (and the other transactions to be entered into in either case after giving effect connection therewith), the Borrower or any of its Restricted Subsidiaries would have been permitted to take such action on the relevant restricted payment and any substantially concurrent incurrence of Debt on a pro forma basisLCT Test Date in compliance with such ratio, test or basket, such ratio, test or basket shall be deemed to have been complied with. For the avoidance of doubt, if the Borrower has made an LCT Election and any of such the ratios, tests or caps are exceeded 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 ratiosratio, tests test or caps (basket, including due to fluctuations in EBITDAX Consolidated EBITDA or Consolidated Total Assets of the Borrower or the person Person subject to such acquisition or Investment or other transaction)Limited Condition Transaction, at or prior to the consummation of the relevant transaction or action, such ratiosbaskets, tests or caps ratios will not be deemed to have failed to have been exceeded complied with as a result of such fluctuations solely fluctuations. 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 the incurrence of Indebtedness or Liens, the making of Dividends, the making of any Permitted Investment, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of the Borrower, the prepayment, redemption, purchase, defeasance or other satisfaction of Indebtedness, or the designation of an Unrestricted Subsidiary (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 or irrevocable notice for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, for purposes of determining whether the relevant transaction or action such Subsequent Transaction is permitted under this Agreement, any such ratio, test or basket shall be required to be consummated or takensatisfied on a 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.

Limited Condition Transactions. Notwithstanding anything in this Agreement or any Loan Document to the contrary, to the extent that any provision requires (x) compliance with any financial ratio or test (which, where calculated on a pro forma basis, shall take into account pro forma cost savings and synergy add-backsbacks permitted hereunder), (y) the absence of any Default or Event of Default or (z) compliance with any condition to (1) the consummation of any transaction in connection with any acquisition or similar Investment Investment, Transfer or any fundamental change, (2) the making of any Restricted Payment, (3) the incurrence of any Debt or Lien in connection therewith and/or (4) the making of any restricted payment a Redemption in respect of any Junior Debt, the determination of whether the relevant condition is satisfied may be made, at the election of the Borrower: (A) in the case of any acquisition or similar Investment Investment, Transfer or any fundamental change, either (I) at the time of the execution of the definitive agreement with respect to the relevant acquisition or similar Investment Investment, Transfer or any fundamental change or (II) at the time of the consummation of the relevant acquisition or similar Investment Investment, Transfer or any fundamental change, in either case after giving effect to the acquisition or similar Investment Investment, Transfer or any fundamental change and any related Debt on a pro forma basis, (B) in the case of any Restricted Payment made within 60 days of the declaration of such restricted payment, either (I) at the time of the declaration of such Restricted Payment or (II) at the time of the making of such Restricted Payment, in either case after giving effect to the relevant restricted payment on a pro forma basis, (C) in the case of any Debt or Lien in connection therewith, either (I) at the time of entry into the commitment for such Debt or Lien or (II) at the time of the incurrence of such Debt or Lien, in either case after giving effect to the relevant Debt on a pro forma basis and/or (D) in the case of any restricted payment Redemption in respect of any Junior Debt made within 60 days of delivering an irrevocable notice, either (I) at the time of delivery an irrevocable notice (which may be conditional) with respect to such restricted payment Redemption or (II) at the time of the making of such restricted paymentRedemption, in either case case, after giving effect to the relevant restricted payment Redemption and any substantially concurrent incurrence of Debt on a pro forma basis. For the avoidance of doubt, if any of such ratios, tests or caps are exceeded as a result of fluctuations in such ratios, tests or caps (including due to fluctuations in EBITDAX of the Borrower or the person subject to such acquisition or Investment Investment, Transfer or other transaction), at or prior to the consummation of the relevant transaction or action, such ratios, tests or caps 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.

Limited Condition Transactions. Notwithstanding anything to the contrary herein (including in connection with any calculation made on a Pro Forma Basis), if the terms of this Agreement or any Loan Document to the contrary, to the extent that any provision requires require (xi) compliance with any financial ratio or financial test (which, where calculated on including any Consolidated Total Leverage Ratio test and/or any Consolidated Cash Interest Coverage Ratio test) and/or any cap expressed as a pro forma basis, shall take into account pro forma cost savings and synergy add-backs)percentage of Consolidated Total Assets, (yii) accuracy of any representation or warranty and/or the absence of any a Default or Event of Default (or any type of default or event of default) or (ziii) compliance with any basket, as a condition to (1A) the consummation of any transaction (including in connection with any acquisition or similar Investment or any fundamental change, the assumption or incurrence of Indebtedness) and/or (2B) the making of any Restricted Payment (including any Restricted Debt Payment, (3) the incurrence of any Debt or Lien in connection therewith and/or (4) the making of any restricted payment in respect of any Junior Debt), the determination of whether the relevant condition is satisfied may be made, at the election of the Borrower: , (A1) in the case of any acquisition or similar Investment or any fundamental changedisposition and any transaction related thereto, either (I) at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) either (x) the execution of the definitive agreement with respect to the relevant acquisition or similar such acquisition, Investment or any fundamental change disposition (or, solely in connection with an acquisition to which the United Kingdom City Code on Takeovers and Mergers applies, the date on which a “Rule 2.7 Announcement” of a firm intention to make an offer) or (IIy) at the time of the consummation of the relevant acquisition or similar such acquisition, Investment or any fundamental change, in either case after giving effect to the acquisition or similar Investment or any fundamental change and any related Debt on a pro forma basisdisposition, (B2) in the case of any Restricted Payment made within 60 days of the declaration of such restricted payment(other than a Restricted Investment or a Restricted Debt Payment), either (I) at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) the declaration of such Restricted Payment or (IIy) at the time of the making of such Restricted Payment and (3) in the case of any Restricted Debt Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) delivery of notice with respect to such Restricted Debt Payment or (y) the making of such Restricted Debt Payment, in either case each case, after giving effect to the relevant restricted payment acquisition or similar Investment, disposition, Restricted Payment and/or Restricted Debt Payment or other transaction on a pro forma basis, Pro Forma Basis (C) in the case of any Debt or Lien in connection therewith, either (I) at the time of entry into the commitment for such Debt or Lien or (II) at the time of the incurrence of such Debt or Lienincluding, in either case after each case, giving effect to the relevant Debt on a transaction, any relevant Indebtedness (including the intended use of proceeds thereof) and, at the election of the Borrower, giving pro forma basis and/or effect to other prospective “limited conditionality” acquisitions or similar Investments for which definitive agreements have been executed, and no Default or Event of Default shall be deemed to have occurred solely as a result of an adverse change in such financial ratio or test occurring after the time such election is made (D) but any subsequent improvement in the case of any restricted payment in respect of any Junior Debt made within 60 days of delivering an irrevocable notice, either (I) at the time of delivery an irrevocable notice (which applicable financial ratio or test may be conditional) with respect to such restricted payment utilized by the Borrower or (II) at the time of the making of such restricted payment, in either case after giving effect to the relevant restricted payment and any substantially concurrent incurrence of Debt on a pro forma basisRestricted Subsidiary). For the avoidance of doubt, if the Borrower shall have elected the option set forth in clause (x) of any of the preceding clauses (1), (2) or (3) in respect of any transaction, then the Borrower shall be permitted to consummate such ratios, tests transaction even if any applicable test or caps are exceeded as a result condition shall cease to be satisfied subsequent to the Borrower’s election of fluctuations such option. The provisions of this Section 1.5 shall also apply in such ratios, tests or caps (including due to fluctuations in EBITDAX respect of the Borrower or the person subject to such acquisition or Investment or other transaction), at or prior to the consummation incurrence of the relevant transaction or action, such ratios, tests or caps 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 takenany Senior Obligations.

Limited Condition Transactions. Notwithstanding anything (a) In connection with any action being taken solely in this Agreement or any Loan Document to the contraryconnection with a Limited Condition Transaction, to the extent that any provision requires for purposes of: (x1) determining compliance with any financial ratio provision of this Indenture that requires the calculation of the Fixed Charge Coverage Ratio, Consolidated Total Debt Ratio, Consolidated First Lien Debt Ratio or test Consolidated Secured Debt Ratio; (which, where calculated on 2) determining whether a pro forma basis, shall take into account pro forma cost savings and synergy add-backs), (y) the absence of any Default or Event of Default shall have occurred and be continuing (or any subset of Defaults or Events of Default); or (z3) compliance with testing availability under baskets, ratios or financial metrics under this Indenture (including those measured as a percentage of Consolidated EBITDA, Pro Forma Consolidated EBITDA, Fixed Charges or Consolidated Total Assets or by reference to Section 4.07(a)(3)); (b) in each case, at the option of the Company, any condition to (1) the consummation of its Restricted Subsidiaries, a Parent Entity, or any successor entity of any transaction of the foregoing (including a third party) (the “Testing Party,” and the election to exercise such option in connection with any acquisition Limited Condition Transaction, an “LCT Election”), with such option to be exercised on or similar Investment prior to the date of execution of the definitive agreements, letter of intent, submission of notice or any fundamental change, (2) the making of any Restricted Paymenta definitive declaration, (3) the incurrence of any Debt or Lien in connection therewith and/or (4) the making of any restricted payment in as applicable, with respect of any Junior Debtto such Limited Condition Transaction, the date of determination of whether the relevant condition any such action is satisfied may permitted under this Indenture, shall be made, at the election of the Borrower: deemed to be (Ai) in the case of any acquisition Acquisition or similar other Investment (including by way of merger, amalgamation or consolidation), any disposition or any fundamental changeassumption or incurrence of Indebtedness or issuance of Capital Stock, either or any transaction relating thereto, the date (I) at or on the time basis of the execution financial statements for the most recently ended reference period) of entry into the definitive agreement agreements (or, if applicable, a binding offer, or launch of a “certain funds” tender offer) for, or the date any declaration is provided or made with respect to, or determination to the relevant acquisition or similar Investment or any fundamental change or (II) at the time of the consummation of the relevant acquisition or similar Investment or any fundamental changeenter into, in either case after giving effect to the acquisition or similar Investment or any fundamental change and any related Debt on a pro forma basissuch Limited Condition Transaction, (Bii) in the case of any Restricted Payment made within 60 days prepayment, redemption, repurchase, defeasance, acquisition or other payment or refinancing of Indebtedness or Capital Stock, the declaration date that the notice, which may be conditional, of such restricted paymentrepayment, either redemption, repurchase, defeasance, acquisition or other payment or refinancing of Indebtedness or Capital Stock is given, (Iiii) in the case of any other Restricted Payment, at the time (or on the basis of the financial statements for the most recently ended reference period) of the declaration of such Restricted Payment or (II) at the time of the making of such Restricted Payment, in either case after giving effect to the relevant restricted payment on a pro forma basis, (Civ) in the case of any Debt designation of a Subsidiary as restricted or Lien in connection therewithunrestricted, either (I) at the time date of entry into delivery of a certificate of an Officer of the commitment for Company is given with respect to such Debt designation or Lien redesignation, or (II) at the time of the incurrence of such Debt or Lien, in either case after giving effect to the relevant Debt on a pro forma basis and/or (Dv) in the case of any restricted payment sales in respect connection with an acquisition to which the United Kingdom City Code on Takeovers and Mergers applies (or similar law or practice in other jurisdictions), the date on which a “Rule 2.7 announcement” of any Junior Debt made within 60 days of delivering a firm intent to make an irrevocable noticeoffer or similar announcement or determination in another jurisdiction subject to laws similar to the United Kingdom City Code on Takeovers and Mergers (the applicable date determined pursuant to clauses (i) through (v), either (Ithe “LCT Test Date”) at the time of delivery an irrevocable notice (which may be conditional) with respect to such restricted payment or (II) at the time of the making of such restricted paymentis made, in either case and if, after giving pro forma effect to the relevant restricted payment Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any substantially concurrent incurrence of Debt Indebtedness or Liens and the use of proceeds thereof) as if they had occurred at the beginning of the most recent Applicable Measurement Period ending prior to the LCT Test Date, the Company could have taken such action on a pro forma basis. the relevant LCT Test Date in compliance with such ratio, basket or financial metric, such ratio, basket or financial metric shall be deemed to have been complied with. (c) For the avoidance of doubt, if the Testing Party has made an LCT Election and any of such the ratios, tests baskets or caps financial metrics for which compliance was determined or tested as of the LCT Test Date are exceeded or not complied with as a result of fluctuations in any such ratiosratio, tests basket or caps (financial metrics, including due to fluctuations in EBITDAX Fixed Charges, Consolidated Net Income, Consolidated EBITDA or Pro Forma Consolidated EBITDA of the Borrower Company, the target company or the person Person subject to such acquisition or Investment or other transaction)Limited Condition Transaction, at or prior to the consummation of the relevant transaction or action, such ratios, tests baskets or caps financial metrics will not be deemed to have been exceeded as a result of such fluctuations solely and such baskets, ratios or financial metrics shall not be tested at the consummation of the Limited Condition Transaction except as contemplated in Section 1.06(a)(1); provided, however, that (i) if financial statements for one or more subsequent fiscal quarters shall have become available, the Testing Party may elect, in its sole discretion, to re determine all such baskets, ratios and financial metrics 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, (ii) if any ratios or financial metrics improve or baskets increase as a result of such fluctuations, such improved ratios, financial metrics or baskets may be utilized and (iii) Fixed Charges with respect to any Indebtedness expected to be incurred in connection with such Limited Condition Transaction will, for purposes of the Fixed Charge Coverage Ratio, be calculated using an assumed interest rate based on the available documentation therefor, as determined by the Testing Party in good faith. If the Testing Party has made an LCT Election for any Limited Condition Transaction, then, in connection with any subsequent calculation of the ratios, baskets or financial metrics on or following the relevant LCT Test Date and prior to the earlier of (x) the date on which such Limited Condition Transaction is consummated or (y) the date that the definitive agreement, notice or declaration for such Limited Condition Transaction is abandoned, terminated or expires without consummation of such Limited Condition Transaction, any such ratio, basket or financial metric shall be calculated on a pro forma basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness or Liens and the use of proceeds thereof) have been consummated. For the avoidance of doubt, if the Testing Party has exercised its option pursuant to this Section 1.06 and any Default or Event of Default occurs following the LCT Test Date (including any new LCT Test Date) for the applicable Limited Condition Transaction and prior to or on the date of the consummation of such Limited Condition Transaction, any such Default or Event of Default shall be deemed not to have occurred or be continuing for purposes of determining whether the relevant transaction or any action being taken in connection with such Limited Condition Transaction is permitted to be consummated or takenunder this Indenture.