Pro Forma and Other Calculations. (a) Notwithstanding anything to the contrary herein, for purposes of determining compliance with any test or covenant contained in this Agreement with respect to any period during which any Specified Transaction occurs, the Consolidated Secured Net Leverage Ratio and the Consolidated Total Net Leverage Ratio shall be calculated with respect to such period and such Specified Transaction on a Pro Forma Basis and in the manner prescribed by this Section 1.12; provided that, in connection with any Specified Transaction that is a Limited Condition Transaction, for purposes of determining compliance with any test or covenant for any action advisable (as determined by the Borrower in good faith) for the consummation of a Limited Condition Transaction contained in this Agreement during any period which requires the calculation of any of the foregoing ratios or any basket that is determined by reference to Consolidated EBITDAX or Consolidated Total Assets and, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCA Election”) the date of determination for calculation of any such ratios shall be deemed to be the date the definitive agreements for such Specified Transaction that is a Limited Condition Transaction are entered into (the “LCA Test Date”) and if, after giving Pro Forma Effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) as if they had occurred at the beginning of the most recent date of determination ending prior to the LCA Test Date, the Borrower could have taken such action on the relevant LCA Test Date in compliance with such ratio or basket, such ratio or basket shall be deemed to have been complied with. For the avoidance of doubt, if the Borrower has made an LCA Election and any of the ratios or baskets for which compliance was determined or tested as of the LCA Test Date are exceeded as a result of fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDAX or Consolidated Total Assets of the Borrower or the Person subject to such Limited Condition Transaction, 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 solely for purposes of determining whether the relevant transaction or action is permitted to be consummated or taken. If the Borrower has made an LCA Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio 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 Transaction is consummated or the date that the definitive agreement for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and any associated Lien and the use of proceeds thereof) have been consummated. (b) If since the beginning of any applicable Test Period any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Borrower or any of its Restricted Subsidiaries since the beginning of such Test Period shall have made any Specified Transaction that would have required adjustment pursuant to this Section 1.12, then such financial ratio or test (or Consolidated Total Assets) shall be calculated to give Pro Forma Effect thereto in accordance with this Section 1.12. (c) Whenever Pro Forma Effect is to be given to a Specified Transaction, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Borrower and may include, for the avoidance of doubt, the amount of “run-rate” cost savings, operating expense reductions and savings from synergies resulting from or relating to any Specified Transactions (including the Transaction) which is being given Pro Forma Effect that have been realized or are expected to be realized and for which the actions necessary to realize such cost savings, operating expense reductions and savings from synergies are taken, committed to be taken or with respect to which substantial steps have been taken or are expected to be taken (in the good faith determination of the Borrower) (calculated on a Pro Forma Basis as though such cost savings, operating expense reductions and savings from synergies had been realized on the first day of such period and as if such cost savings, operating expense reductions and savings from synergies were realized during the entirety of such period) and “run-rate” shall mean the full recurring benefit for a period that is associated with any action taken, committed to be taken or with respect to which substantial steps have been taken or are expected to be taken (including any savings expected to result from the elimination of a public target’s Public Company Costs) net of the amount of actual benefits realized during such period from such actions; provided that (A) such amounts are reasonably identifiable and factually supportable in the good faith judgment of the Borrower, (B) such actions are taken, committed to be taken or with respect to which substantial steps have been taken or are expected to be taken (in the good faith determination of the Borrower) no later than thirty-six (36) months after the date of such Specified Transaction, (C) no amounts shall be added pursuant to this clause (c) to the extent duplicative of any amounts that are otherwise added back in computing Consolidated EBITDAX (or any other components thereof), whether through a pro forma adjustment or otherwise, with respect to such period and (D) it is understood and agreed that subject to compliance with the other provisions of this clause (c), amounts to be included in pro forma calculations pursuant to this Section 1.12 may be included in Test Periods in which the Specified Transaction to which such amounts related is no longer being given Pro Forma Effect pursuant to Section 1.12(a). (d) In the event that (x) the Borrower or any Restricted Subsidiary issues, repurchases or redeems Disqualified Stock or (y) any Restricted Subsidiary issues, repurchases or redeems Preferred Stock, (i) during the applicable Test Period or (ii) subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then such financial ratio or test shall be calculated giving Pro Forma Effect to such issuance, refinancing or redemption of Disqualified Stock or Preferred Stock to the extent required, as if the same had occurred on the last day of the applicable Test Period.
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Samples: Credit Agreement (Vine Energy Inc.)
Pro Forma and Other Calculations. (a) Notwithstanding anything to the contrary herein, for purposes of determining compliance with any test or covenant contained in this Agreement with respect to any period during which any Specified Transaction occurs, the Consolidated Secured Net Leverage Ratio and the Consolidated Total Net Leverage Ratio shall be calculated with respect to such period and such Specified Transaction on a Pro Forma Basis and in the manner prescribed by this Section 1.121.10; provided that, in connection with any Specified Transaction that is a Limited Condition Transaction, for purposes of determining compliance with any test or covenant for any action advisable (as determined by the Borrower in good faith) for the consummation of a Limited Condition Transaction contained in this Agreement during any period which requires the calculation of any of the foregoing ratios or any basket that is determined by reference to Consolidated EBITDAX or Consolidated Total Assets and, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCA Election”) the date of determination for calculation of any such ratios shall be deemed to be the date the definitive agreements for such Specified Transaction that is a Limited Condition Transaction are entered into (the “LCA Test Date”) and if, after giving Pro Forma Effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) as if they had occurred at the beginning of the most recent date of determination ending prior to the LCA Test Date, the Borrower could have taken such action on the relevant LCA Test Date in compliance with such ratio or basket, such ratio or basket shall be deemed to have been complied with. For the avoidance of doubt, if the Borrower has made an LCA Election and any of the ratios or baskets for which compliance was determined or tested as of the LCA Test Date are exceeded as a result of fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDAX or Consolidated Total Assets of the Borrower or the Person subject to such Limited Condition Transaction, 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 solely for purposes of determining whether the relevant transaction or action is permitted to be consummated or taken. If the Borrower has made an LCA Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio 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 Transaction is consummated or the date that the definitive agreement for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and any associated Lien and the use of proceeds thereof) have been consummated.
(b) If since the beginning of any applicable Test Period any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Borrower or any of its Restricted Subsidiaries since the beginning of such Test Period shall have made any Specified Transaction that would have required adjustment pursuant to this Section 1.121.10, then such financial ratio or test (or Consolidated Total Assets) shall be calculated to give Pro Forma Effect thereto in accordance with this Section 1.121.10.
(c) Whenever Pro Forma Effect is to be given to a Specified Transaction, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Borrower and may include, for the avoidance of doubt, the amount of “run-rate” cost savings, operating expense reductions and savings from synergies resulting from or relating to any Specified Transactions (including the Transaction) which is being given Pro Forma Effect that have been realized or are expected to be realized and for which the actions necessary to realize such cost savings, operating expense reductions and savings from synergies are taken, committed to be taken or with respect to which substantial steps have been taken or are expected to be taken (in the good faith determination of the Borrower) (calculated on a Pro Forma Basis as though such cost savings, operating expense reductions and savings from synergies had been realized on the first day of such period and as if such cost savings, operating expense reductions and savings from synergies were realized during the entirety of such period) and “run-rate” shall mean the full recurring benefit for a period that is associated with any action taken, committed to be taken or with respect to which substantial steps have been taken or are expected to be taken (including any savings expected to result from the elimination of a public target’s Public Company Costs) net of the amount of actual benefits realized during such period from such actions; provided that (A) such amounts are reasonably identifiable and factually supportable in the good faith judgment of the Borrower, (B) such actions are taken, committed to be taken or with respect to which substantial steps have been taken or are expected to be taken (in the good faith determination of the Borrower) no later than thirty-six (36) months after the date of such Specified Transaction, (C) no amounts shall be added pursuant to this clause (c) to the extent duplicative of any amounts that are otherwise added back in computing Consolidated EBITDAX (or any other components thereof), whether through a pro forma adjustment or otherwise, with respect to such period and (D) it is understood and agreed that subject to compliance with the other provisions of this clause (c), amounts to be included in pro forma calculations pursuant to this Section 1.12 1.10 may be included in Test Periods in which the Specified Transaction to which such amounts related is no longer being given Pro Forma Effect pursuant to Section 1.12(a1.10(a).
(d) In the event that (x) the Borrower or any Restricted Subsidiary issues, repurchases or redeems Disqualified Stock Equity Interest or (y) any Restricted Subsidiary issues, repurchases or redeems Preferred Stock, (i) during the applicable Test Period or (ii) subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then such financial ratio or test shall be calculated giving Pro Forma Effect to such issuance, refinancing or redemption of Disqualified Stock Equity Interest or Preferred Stock to the extent required, as if the same had occurred on the last day of the applicable Test Period.
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Pro Forma and Other Calculations. (a) Notwithstanding anything in this Agreement or any Loan Document to the contrary hereincontrary, for purposes when (i) calculating any applicable ratio, Consolidated Net Income or EBITDA in connection with the incurrence of Indebtedness, the issuance of Disqualified Stock, the creation of Liens, the making of any Disposition, the making of an Investment, the making of a Restricted Payment, the designation of a Subsidiary as a Restricted Subsidiary, any Subsidiary Redesignation or any Restricted Debt Payment, (ii) determining compliance with any test or covenant contained in provision of this Agreement which requires that no Default or Event of Default has occurred, is continuing or would result therefrom, (iii) determining compliance with respect any provision of this Agreement which requires compliance with any representations and warranties set forth herein or (iv) determining the availability for the utilization of any basket, to any period during which any Specified Transaction occursthe incurrence of Indebtedness, the Consolidated Secured Net Leverage Ratio and issuance of Disqualified Stock, the Consolidated Total Net Leverage Ratio shall be calculated with respect to such period and such Specified Transaction on creation of Liens, the making of any Disposition, the making of an Investment, the making of a Pro Forma Basis and Restricted Payment, the designation of a Subsidiary as a Restricted Subsidiary, any Subsidiary Redesignation or any Restricted Debt Payment, in the manner prescribed by this Section 1.12; provided that, each case in connection with any Specified Transaction that is a Limited Condition Transaction, for purposes the date of determining 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 test representations or covenant for any action advisable (as determined by warranties or the Borrower in good faith) for the consummation of a Limited Condition Transaction contained in this Agreement during any period which requires the calculation satisfaction of any of the foregoing ratios or any basket that is determined by reference to Consolidated EBITDAX or Consolidated Total Assets andother conditions shall, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCA LCT Election”, which LCT Election may be in respect of one or more of clauses (i) the date of determination for calculation of any such ratios shall through (iv) above), be deemed to be (x) the date the definitive agreements (or other relevant definitive documentation) for such Specified Transaction that is a Limited Condition Transaction are entered into or (y) solely in connection with an acquisition to which the United Kingdom City Code on Takeovers and Mergers applies (or similar law in another jurisdiction), the date on which a “Rule 2.7 announcement” of a firm intention to make an offer (or equivalent announcement in another jurisdiction) (a “Public Offer”) in respect of a target of such acquisition (the “LCA LCT Test Date”) and if, ). If on a pro forma basis after giving Pro Forma Effect effect to the such Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence or issuance of Indebtedness or Disqualified Stock and the use of proceeds thereof) ), with such ratios and other provisions calculated as if they such Limited Condition Transaction or other transactions had occurred at the beginning of the most recent date of determination Test Period ending prior to the LCA LCT Test DateDate for which internal financial statements are available, the Borrower could have taken such action on the relevant LCA LCT Test Date in compliance with such ratio the applicable ratios or basketother provisions, such ratio or basket provisions shall be deemed to have been complied with. For the avoidance of doubtdoubt (i) if, if following the Borrower has made an LCA Election and LCT Test Date, any of the such ratios or baskets for which compliance was determined or tested as of the LCA Test Date other provisions are exceeded or breached as a result of fluctuations in any such ratio or basket, (including due to fluctuations in Consolidated EBITDAX EBITDA or Consolidated Total Assets other components of the Borrower such ratio) or the Person subject to such Limited Condition Transaction, other provisions at or prior to the consummation of the relevant transaction or actionLimited Condition Transactions, such baskets or 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 relevant transaction or action Limited Condition Transaction 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 Transaction or related transactions, unless the Borrower elects, in its sole discretion, to be consummated test such ratios and compliance with the conditions on the date such Limited Condition Transaction or takenrelated transaction is consummated. If the Borrower has made an LCA LCT Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio ratio, basket availability or compliance with respect to any other Specified Transaction provision hereunder (other than actual compliance with the Financial Covenant and the Pricing Grid) on or following the relevant LCA LCT Test Date and prior to the earlier earliest of the date on which such Limited Condition Transaction is consummated or consummated, the date that the definitive agreement for such Limited Condition Transaction is terminated or expires expires, or the offer in respect of a Public Offer for such acquisition is terminated, without consummation of such Limited Condition TransactionTransaction or the date the Borrower makes an election pursuant to the immediately preceding sentence, any such ratio ratio, basket or compliance with any other provision hereunder shall be calculated on a Pro Forma Basis pro forma basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence or issuance of Indebtedness and any associated Lien or Disqualified Stock and the use of proceeds thereof) have had been consummatedconsummated on the LCT Test Date and, in the case of any Restricted Payment, on a pro forma basis excluding such Limited Condition Transaction and other transaction in connection therewith.
(b) If since In connection with any action being taken in connection with a Limited Condition Transaction (including the beginning incurrence of any Indebtedness and/or any Lien in connection therewith), for purposes of determining compliance with any provision of this Agreement which requires that any representation or warranty be required to be true and correct as of the consummation of any Limited Condition Acquisition, the relevant representation and warranty shall be limited to (x) the Specified Representations (as modified appropriately for the relevant Limited Condition Acquisition) being true and correct as of such date and (y) the representations and warranties made by the target in the applicable Test Period any Person acquisition agreement that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into are material to the interests of the Lenders (in their capacities as such) (but only to the extent that the Borrower (or its applicable affiliate) has the right to terminate its obligations under the relevant acquisition agreement or decline to consummate the acquisition as a result of a breach of such representations in the acquisition agreement) shall be true and correct in all material respects. For the avoidance of doubt, if the Borrower has exercised its option under this Section 1.10, and any Default or Event of Default occurs following the date the definitive agreements for the applicable Limited Condition Transaction were entered into and prior to the consummation of such Limited Condition Transaction, 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 Transaction is permitted hereunder.
(c) Notwithstanding anything in this Agreement or any Loan Document to the contrary herein, with respect to any amounts incurred or transactions entered into (or consummated) in reliance on a provision of its Restricted Subsidiaries since this Agreement that does not require compliance with a financial ratio or test (including, without limitation, any drawing under any revolving facility, the beginning Net First Lien Leverage Ratio, the Net Secured Leverage Ratio and the Net Total Leverage Ratio (any such amounts, the “Fixed Amounts”)) substantially concurrently with any amounts incurred or transactions entered into (or consummated) in reliance on a provision of such Test Period shall have made this Agreement that requires compliance with any Specified Transaction that would have required adjustment pursuant to this Section 1.12, then such financial ratio or test (or Consolidated Total Assets) shall be calculated to give Pro Forma Effect thereto in accordance with this Section 1.12.
(c) Whenever Pro Forma Effect is to be given to a Specified Transactionany such amounts, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Borrower and may include, for the avoidance of doubt, the amount of “runIncurrence-rate” cost savings, operating expense reductions and savings from synergies resulting from or relating to any Specified Transactions (including the Transaction) which is being given Pro Forma Effect that have been realized or are expected to be realized and for which the actions necessary to realize such cost savings, operating expense reductions and savings from synergies are taken, committed to be taken or with respect to which substantial steps have been taken or are expected to be taken (in the good faith determination of the Borrower) (calculated on a Pro Forma Basis as though such cost savings, operating expense reductions and savings from synergies had been realized on the first day of such period and as if such cost savings, operating expense reductions and savings from synergies were realized during the entirety of such period) and “run-rate” shall mean the full recurring benefit for a period that is associated with any action taken, committed to be taken or with respect to which substantial steps have been taken or are expected to be taken (including any savings expected to result from the elimination of a public target’s Public Company Costs) net of the amount of actual benefits realized during such period from such actions; provided that (A) such amounts are reasonably identifiable and factually supportable in the good faith judgment of the Borrower, (B) such actions are taken, committed to be taken or with respect to which substantial steps have been taken or are expected to be taken (in the good faith determination of the Borrower) no later than thirty-six (36) months after the date of such Specified Transaction, (C) no amounts shall be added pursuant to this clause (c) to the extent duplicative of any amounts that are otherwise added back in computing Consolidated EBITDAX (or any other components thereofBased Amounts”), whether through a pro forma adjustment or otherwise, with respect to such period and (D) it is understood and agreed that subject any Fixed Amount (and any cash proceeds thereof) and any substantially concurrent borrowings under the Revolving Credit Facility or any other revolving credit facility shall be disregarded in the calculation of the financial ratio or test applicable to compliance the relevant Incurrence-Based Amount in connection with the other provisions of this clause (c), amounts to be included in pro forma calculations pursuant to this Section 1.12 may be included in Test Periods in which the Specified Transaction to which such amounts related is no longer being given Pro Forma Effect pursuant to Section 1.12(a)substantially concurrent incurrence.
(d) In If any Lien, Indebtedness, Disposition, Investment, Restricted Payment, Restricted Debt Payment or other transaction, action, judgment or amount (any of the event that foregoing in concurrent transactions, a single transaction or a series of related transactions) is incurred, issued, taken or consummated in reliance on categories of baskets measured by reference to a percentage of EBITDA, and any Lien, Indebtedness, Disposition, Investment, Restricted Payment or other transaction, action, judgment or amount (xincluding in connection with refinancing thereof) the Borrower or any Restricted Subsidiary issues, repurchases or redeems Disqualified Stock or (y) any Restricted Subsidiary issues, repurchases or redeems Preferred Stock, (i) during would subsequently exceed the applicable Test Period percentage of EBITDA if calculated based on the EBITDA on a later date (including the date of any refinancing or re-classification), such percentage of EBITDA will not be deemed to be exceeded (ii) subsequent to so long as, in the end case of refinancing any Indebtedness (and any related Lien), the principal amount or the liquidation preference of such newly incurred or issued Indebtedness does not exceed the maximum principal amount or amount of Refinancing Indebtedness in respect of the applicable Test Period Indebtedness, being refinanced, extended, replaced, refunded, renewed or defeased).
(e) It is understood and prior to agreed for the avoidance of doubt that the carve-outs from the provisions of Articles V and VI herein may include items or simultaneously with activities that are not restricted by the event for which the calculation of any such ratio is made, then such financial ratio or test shall be calculated giving Pro Forma Effect to such issuance, refinancing or redemption of Disqualified Stock or Preferred Stock to the extent required, as if the same had occurred on the last day of the applicable Test Periodrelevant provision.
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Pro Forma and Other Calculations. (a) Notwithstanding anything in this Agreement or any Loan Document to the contrary hereincontrary, for purposes when (i) calculating any applicable ratio, Consolidated Net Income or EBITDA in connection with the incurrence of Indebtedness, the issuance of Disqualified Stock, the creation of Liens, the making of any Disposition, the making of an Investment, the making of a Restricted Payment, the designation of a subsidiary of the Borrower as a Subsidiary, any Subsidiary Redesignation or any Restricted Debt Payment, (ii) determining compliance with any test or covenant contained in provision of this Agreement which requires that no Default or Event of Default has occurred, is continuing or would result therefrom, (iii) determining compliance with respect any provision of this Agreement which requires compliance with any representations and warranties set forth herein or (iv) determining the availability for the utilization of any basket, to any period during which any Specified Transaction occursthe incurrence of Indebtedness, the Consolidated Secured Net Leverage Ratio and issuance of Disqualified Stock, the Consolidated Total Net Leverage Ratio shall be calculated with respect to such period and such Specified Transaction on creation of Liens, the making of any Disposition, the making of an Investment, the making of a Pro Forma Basis and Restricted Payment, the designation of a subsidiary of the Borrower as a Subsidiary, any Subsidiary Redesignation or any Restricted Debt Payment, in the manner prescribed by this Section 1.12; provided that, each case in connection with any Specified Transaction that is a Limited Condition Transaction, for purposes the date of determining 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 test representations or covenant for any action advisable (as determined by warranties or the Borrower in good faith) for the consummation of a Limited Condition Transaction contained in this Agreement during any period which requires the calculation satisfaction of any of the foregoing ratios or any basket that is determined by reference to Consolidated EBITDAX or Consolidated Total Assets andother conditions shall, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCA LCT Election”, which LCT Election may be in respect of one or more of clauses (i) the date of determination for calculation of any such ratios shall through (iv) above), be deemed to be (x) the date the definitive agreements (or other relevant definitive documentation) for such Specified Transaction that is a Limited Condition Transaction are entered into or (the “LCA Test Date”y) and if, after giving Pro Forma Effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) as if they had occurred at the beginning of the most recent date of determination ending prior to the LCA Test Date, the Borrower could have taken such action on the relevant LCA Test Date in compliance with such ratio or basket, such ratio or basket shall be deemed to have been complied with. For the avoidance of doubt, if the Borrower has made an LCA Election and any of the ratios or baskets for which compliance was determined or tested as of the LCA Test Date are exceeded as a result of fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDAX or Consolidated Total Assets of the Borrower or the Person subject to such Limited Condition Transaction, 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 solely for purposes of determining whether the relevant transaction or action is permitted to be consummated or taken. If the Borrower has made an LCA Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio with respect an acquisition to any other Specified Transaction which the United Kingdom City Code on Takeovers and Mergers applies (or following the relevant LCA Test Date and prior to the earlier of similar law in another jurisdiction), the date on which such Limited Condition Transaction is consummated or the date that the definitive agreement for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and any associated Lien and the use of proceeds thereof) have been consummated“Rule 2.
(b) If since the beginning of any applicable Test Period any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Borrower or any of its Restricted Subsidiaries since the beginning of such Test Period shall have made any Specified Transaction that would have required adjustment pursuant to this Section 1.12, then such financial ratio or test (or Consolidated Total Assets) shall be calculated to give Pro Forma Effect thereto in accordance with this Section 1.12.
(c) Whenever Pro Forma Effect is to be given to a Specified Transaction, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Borrower and may include, for the avoidance of doubt, the amount of “run-rate” cost savings, operating expense reductions and savings from synergies resulting from or relating to any Specified Transactions (including the Transaction) which is being given Pro Forma Effect that have been realized or are expected to be realized and for which the actions necessary to realize such cost savings, operating expense reductions and savings from synergies are taken, committed to be taken or with respect to which substantial steps have been taken or are expected to be taken (in the good faith determination of the Borrower) (calculated on a Pro Forma Basis as though such cost savings, operating expense reductions and savings from synergies had been realized on the first day of such period and as if such cost savings, operating expense reductions and savings from synergies were realized during the entirety of such period) and “run-rate” shall mean the full recurring benefit for a period that is associated with any action taken, committed to be taken or with respect to which substantial steps have been taken or are expected to be taken (including any savings expected to result from the elimination of a public target’s Public Company Costs) net of the amount of actual benefits realized during such period from such actions; provided that (A) such amounts are reasonably identifiable and factually supportable in the good faith judgment of the Borrower, (B) such actions are taken, committed to be taken or with respect to which substantial steps have been taken or are expected to be taken (in the good faith determination of the Borrower) no later than thirty-six (36) months after the date of such Specified Transaction, (C) no amounts shall be added pursuant to this clause (c) to the extent duplicative of any amounts that are otherwise added back in computing Consolidated EBITDAX (or any other components thereof), whether through a pro forma adjustment or otherwise, with respect to such period and (D) it is understood and agreed that subject to compliance with the other provisions of this clause (c), amounts to be included in pro forma calculations pursuant to this Section 1.12 may be included in Test Periods in which the Specified Transaction to which such amounts related is no longer being given Pro Forma Effect pursuant to Section 1.12(a).
(d) In the event that (x) the Borrower or any Restricted Subsidiary issues, repurchases or redeems Disqualified Stock or (y) any Restricted Subsidiary issues, repurchases or redeems Preferred Stock, (i) during the applicable Test Period or (ii) subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then such financial ratio or test shall be calculated giving Pro Forma Effect to such issuance, refinancing or redemption of Disqualified Stock or Preferred Stock to the extent required, as if the same had occurred on the last day of the applicable Test Period.
Appears in 1 contract
Pro Forma and Other Calculations. (a) Notwithstanding anything to the contrary herein, for purposes of determining compliance with any test or covenant contained in this Agreement with respect to any period during which any Specified Transaction occursthe Total Leverage Ratio, the Consolidated Secured Net Leverage Interest Coverage Ratio and the Consolidated Total Net Leverage Ratio EBITDA shall be calculated with respect to such period and such Specified Transaction on a Pro Forma Basis and in the manner prescribed by this Section 1.12; provided that, in connection with any Specified Transaction that is a Limited Condition Transaction, for Section.
(b) For purposes of determining compliance calculating the Total Leverage Ratio, the Interest Coverage Ratio and Consolidated EBITDA, Specified Transactions that have been completed by Borrower or any of its Restricted Subsidiaries during the applicable Test Period or subsequent to the end of such Test Period, and prior to or simultaneously with any test or covenant for any action advisable (as determined by the Borrower in good faith) for the consummation of a Limited Condition Transaction contained in this Agreement during any period event with respect to which requires the calculation of any of the foregoing ratios or any basket that is determined by reference to Consolidated EBITDAX or Consolidated Total Assets and, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCA Election”) the date of determination for calculation of any such ratios shall be deemed to be the date the definitive agreements for such Specified Transaction that is a Limited Condition Transaction are entered into (the “LCA Test Date”) and if, after giving Pro Forma Effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) as if they had occurred at the beginning of the most recent date of determination ending prior to the LCA Test Date, the Borrower could have taken such action on the relevant LCA Test Date in compliance with such ratio or basketis being made, such ratio or basket shall be deemed to have been complied with. For the avoidance of doubt, if the Borrower has made an LCA Election and any of the ratios or baskets for which compliance was determined or tested as of the LCA Test Date are exceeded as a result of fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDAX or Consolidated Total Assets of the Borrower or the Person subject to such Limited Condition Transaction, 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 solely for purposes of determining whether the relevant transaction or action is permitted to be consummated or taken. If the Borrower has made an LCA Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio 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 Transaction is consummated or the date that the definitive agreement for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio shall be calculated on a Pro Forma Basis pro forma basis assuming that all such Limited Condition Transaction and other transactions in connection therewith (including any incurrence Specified Transactions had occurred on the first day of Indebtedness and any associated Lien and the use of proceeds thereof) have been consummated.
(b) applicable Test Period. If since the beginning of any applicable such Test Period any Person person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Borrower or any of its other Restricted Subsidiaries Subsidiary since the beginning of such Test Period shall have made completed any Specified Transaction that would have required adjustment pursuant to this Section 1.12Section, then such financial ratio or test (or Consolidated the Total Assets) Leverage Ratio and the Interest Coverage Ratio shall be calculated giving pro forma effect thereto for such period as if such Specified Transaction occurred at the beginning of the applicable Test Period. Notwithstanding the foregoing, at the election of Borrower, such pro forma adjustment shall not be required to give Pro Forma Effect thereto be determined for any acquired entity or business to the extent the aggregate consideration or other amount paid in accordance connection with this Section 1.12such Specified Transaction is less than $5,000,000.
(c) Whenever Pro Forma Effect is to be given to a Specified Transaction, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Borrower and may include, for the avoidance of doubt, the amount of “run-rate” cost savings, operating expense reductions and savings from synergies resulting from or relating to any Specified Transactions [Reserved].
(including the Transactiond) which is being given Pro Forma Effect that have been realized or are expected to be realized and for which the actions necessary to realize such cost savings, operating expense reductions and savings from synergies are taken, committed to be taken or with respect to which substantial steps have been taken or are expected to be taken (in the good faith determination of the Borrower) (calculated on a Pro Forma Basis as though such cost savings, operating expense reductions and savings from synergies had been realized on the first day of such period and as if such cost savings, operating expense reductions and savings from synergies were realized during the entirety of such period) and “run-rate” shall mean the full recurring benefit for a period that is associated with any action taken, committed to be taken or with respect to which substantial steps have been taken or are expected to be taken (including any savings expected to result from the elimination of a public target’s Public Company Costs) net of the amount of actual benefits realized during such period from such actions; provided that (A) such amounts are reasonably identifiable and factually supportable in the good faith judgment of the Borrower, (B) such actions are taken, committed to be taken or with respect to which substantial steps have been taken or are expected to be taken (in the good faith determination of the Borrower) no later than thirty-six (36) months after the date of such Specified Transaction, (C) no amounts shall be added pursuant to this clause (c) Notwithstanding anything to the extent duplicative of any amounts that are otherwise added back in computing Consolidated EBITDAX (or any other components thereof), whether through a pro forma adjustment or otherwisecontrary herein, with respect to any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that does not require compliance with a financial ratio (any such period and amounts, the “Fixed Amounts”) substantially concurrently with any amounts incurred or transactions entered into (Dor consummated) in reliance on a provision of this Agreement that requires compliance with a financial ratio (including Section 7.13 hereof, any Total Leverage Ratio or the Interest Coverage Ratio test) (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that subject the Fixed Amounts shall be disregarded in the calculation of the financial ratio or test applicable to compliance with any substantially concurrent utilization of the other provisions of this clause (c), amounts to be included in pro forma calculations pursuant to this Section 1.12 may be included in Test Periods in which the Specified Transaction to which such amounts related is no longer being given Pro Forma Effect pursuant to Section 1.12(a)Incurrence-Based Amounts.
(de) In For purposes of determining the permissibility of any action, change, transaction or event that (x) the Borrower or any Restricted Subsidiary issues, repurchases or redeems Disqualified Stock or (y) any Restricted Subsidiary issues, repurchases or redeems Preferred Stock, (i) during the applicable Test Period or (ii) subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the requires a calculation of any such financial ratio is madeor test (including any leverage ratio or the amount of Consolidated EBITDA), then such financial ratio or test shall be calculated giving Pro Forma Effect at the time such action is taken, such change is made, such transaction is consummated or such event occurs (or at such other time elected by Borrower in accordance with Section 1.6(f) below), as the case may be, and no default or event of default shall be deemed to have occurred solely as a result of a change in such issuancefinancial ratio or test occurring after the time such action is taken, refinancing such change is made, such transaction is consummated or redemption of Disqualified Stock such event occurs (or Preferred Stock at such time elected by Borrower in accordance with Section 1.6(f) below), as the case may be.
(f) Notwithstanding anything in this Agreement or any other Loan Document to the contrary, to the extent requiredthat this Agreement or any other Loan Document requires (i) compliance with any financial ratio or test (including the financial maintenance covenant set forth in Section 7.13), (ii) accuracy of representations and warranties (other than Specified Representations), (iii) the absence of a Default or 739016937 20664705 Event of Default (or any type of Default or Event of Default) or (iv) testing availability under baskets set forth herein (including compliance with any cap expressed as a percentage of Consolidated EBITDA), in each case, as if a condition to the same had occurred on consummation of any transaction in connection with any Acquisition or similar investment, the last day determination of whether the relevant condition is satisfied may be made, at the election of Borrower, at the time of the applicable Test Periodexecution of the definitive agreement with respect to the relevant acquisition or investment, after giving effect to the acquisition or investment and any related Indebtedness and Liens on a pro forma basis. If Borrower makes any such election to determine whether the relevant condition is satisfied at the times set forth in the foregoing sentence, for purposes of calculating the availability under any basket hereunder in connection with any action or transaction following such time and prior to the earlier of the date on which such acquisition or other investment, as applicable, is consummated or the date that the definitive agreement is terminated, expires or passes, as applicable, without consummation thereof, any such basket shall be determined or tested giving pro forma effect to such acquisition or other and any actions or transactions related thereto (including the incurrence of any Indebtedness in connection therewith).
(g) For purpose of this Section 1.6, “Specified Transaction” shall mean any acquisition or other investment, disposition or other specified transaction (including, for the avoidance of doubt, acquisitions occurring prior to the Closing Date), restructurings, cost savings initiatives and other similar initiatives.
Appears in 1 contract
Samples: Credit Agreement (AssetMark Financial Holdings, Inc.)
Pro Forma and Other Calculations. (a) Notwithstanding anything to the contrary herein, for purposes of determining compliance with any test or covenant contained in this Agreement with respect to any period during which any Specified Transaction occursfinancial ratios and tests, including the Cash Interest Coverage Ratio, the Consolidated Secured Net Leverage Ratio and Ratio, the Consolidated Total Net Leverage Ratio Ratio, and compliance with covenants determined by reference to Consolidated EBITDA, shall be calculated with respect to such period and such Specified Transaction on a Pro Forma Basis and in the manner prescribed by this Section 1.12; provided that, in connection with any Specified Transaction that is a Limited Condition Transaction, for purposes of determining compliance with any test or covenant for any action advisable (as determined by the Borrower in good faith) for the consummation of a Limited Condition Transaction contained in this Agreement during any period which requires the calculation of any of the foregoing ratios or any basket that is determined by reference to Consolidated EBITDAX or Consolidated Total Assets and, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCA Election”) the date of determination for calculation of any such ratios shall be deemed to be the date the definitive agreements for such Specified Transaction that is a Limited Condition Transaction are entered into (the “LCA Test Date”) and if, after giving Pro Forma Effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) as if they had occurred at the beginning of the most recent date of determination ending prior to the LCA Test Date, the Borrower could have taken such action on the relevant LCA Test Date in compliance with such ratio or basket, such ratio or basket shall be deemed to have been complied with. For the avoidance of doubt, if the Borrower has made an LCA Election and any of the ratios or baskets for which compliance was determined or tested as of the LCA Test Date are exceeded as a result of fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDAX or Consolidated Total Assets of the Borrower or the Person subject to such Limited Condition Transaction, 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 solely for purposes of determining whether the relevant transaction or action is permitted to be consummated or taken. If the Borrower has made an LCA Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio 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 Transaction is consummated or the date that the definitive agreement for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and any associated Lien and the use of proceeds thereof) have been consummated.
(b) If since the beginning of any applicable Test Period any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Borrower or any of its Restricted Subsidiaries since the beginning of such Test Period shall have made any Specified Transaction that would have required adjustment pursuant to this Section 1.12, then such financial ratio or test (or Consolidated Total Assets) shall be calculated to give Pro Forma Effect thereto in accordance with this Section 1.12.
(c) Whenever Pro Forma Effect is to be given to a Specified Transaction, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Borrower and may include, for the avoidance of doubt, the amount of “run-rate” cost savings, operating expense reductions and savings from synergies resulting from or relating to any Specified Transactions (including the Transaction) which is being given Pro Forma Effect that have been realized or are expected to be realized and for which the actions necessary to realize such cost savings, operating expense reductions and savings from synergies are taken, committed to be taken or with respect to which substantial steps have been taken or are expected to be taken (in the good faith determination of the Borrower) (calculated on a Pro Forma Basis as though such cost savings, operating expense reductions and savings from synergies had been realized on the first day of such period and as if such cost savings, operating expense reductions and savings from synergies were realized during the entirety of such period) and “run-rate” shall mean the full recurring benefit for a period that is associated with any action taken, committed to be taken or with respect to which substantial steps have been taken or are expected to be taken (including any savings expected to result from the elimination of a public target’s Public Company Costs) net of the amount of actual benefits realized during such period from such actions; provided that (A) such amounts are reasonably identifiable and factually supportable in the good faith judgment of the Borrower, (B) such actions are taken, committed to be taken or with respect to which substantial steps have been taken or are expected to be taken (in the good faith determination of the Borrower) no later than thirty-six (36) months after the date of such Specified Transaction, (C) no amounts shall be added pursuant to this clause (c) to the extent duplicative of any amounts that are otherwise added back in computing Consolidated EBITDAX (or any other components thereof), whether through a pro forma adjustment or otherwise, with respect to such period and (D) it is understood and agreed that subject to compliance with the other provisions of this clause (c), amounts to be included in pro forma calculations pursuant to this Section 1.12 may be included in Test Periods in which the Specified Transaction to which such amounts related is no longer being given Pro Forma Effect pursuant to Section 1.12(a).
(d) In the event that (w) Holdings or any Restricted Subsidiary incurs (including by assumption or guarantees) or repays (including by repurchase, redemption, repayment, retirement, discharge, defeasance or extinguishment) any Indebtedness (in each case, other than Indebtedness incurred or repaid under any revolving credit facility or line of credit in the ordinary course of business for working capital purposes) or (x) the Borrower Holdings or any Restricted Subsidiary issues, repurchases or redeems Disqualified Stock or (y) any Restricted Subsidiary issues, repurchases or redeems Preferred StockEquity Securities, (i) during the applicable Test Measurement Period or (ii) subsequent to the end of the applicable Test Measurement Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then such financial ratio or test shall be calculated giving Pro Forma Effect pro forma effect to such incurrence, assumption, guarantee, repurchase, redemption, repayment, retirement, discharge, defeasance or extinguishment of Indebtedness, or such issuance, refinancing repurchase or redemption of Disqualified Stock or Preferred Stock Equity Securities, in each case to the extent required, as if the same had occurred on the last day of the applicable Test Measurement Period (except in the case of the Cash Interest Coverage Ratio (or similar ratio), in which case such incurrence, assumption, guarantee, repurchase, redemption, repayment, retirement, discharge, defeasance or extinguishment of Indebtedness or such issuance, repurchase or redemption of Disqualified Equity Securities will be given effect as if the same had occurred on the first day of the applicable Measurement Period).
(c) If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date of the event for which the calculation of the Cash Interest Coverage Ratio is made had been the applicable rate for the entire period. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be determined to have been based upon the rate actually chosen, or if none, then based upon such optional rate chosen as Holdings, the Borrower or any applicable Restricted Subsidiary may designate.
Appears in 1 contract
Samples: Bridge Credit Agreement (Xerox Corp)
Pro Forma and Other Calculations. (a) Notwithstanding anything in this Agreement or any Loan Document to the contrary hereincontrary, for purposes when (i) calculating any applicable ratio, Consolidated Net Income or EBITDA in connection with the incurrence of Indebtedness, the issuance of Disqualified Stock, the creation of Liens, the making of any Disposition, the making of an Investment, the making of a Restricted Payment, the designation of a subsidiary of the Borrower as a Subsidiary, any Subsidiary Redesignation or any Restricted Debt Payment, (ii) determining compliance with any test or covenant contained in provision of this Agreement which requires that no Default or Event of Default has occurred, is continuing or would result therefrom, (iii) determining compliance with respect any provision of this Agreement which requires compliance with any representations and warranties set forth herein or (iv) determining the availability for the utilization of any basket, to any period during which any Specified Transaction occursthe incurrence of Indebtedness, the Consolidated Secured Net Leverage Ratio and issuance of Disqualified Stock, the Consolidated Total Net Leverage Ratio shall be calculated with respect to such period and such Specified Transaction on creation of Liens, the making of any Disposition, the making of an Investment, the making of a Pro Forma Basis and Restricted Payment, the designation of a subsidiary of the Borrower as a Subsidiary, any Subsidiary Redesignation or any Restricted Debt Payment, in the manner prescribed by this Section 1.12; provided that, each case in connection with any Specified Transaction that is a Limited Condition Transaction, for purposes the date of determining 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 test representations or covenant for any action advisable (as determined by warranties or the Borrower in good faith) for the consummation of a Limited Condition Transaction contained in this Agreement during any period which requires the calculation satisfaction of any of the foregoing ratios or any basket that is determined by reference to Consolidated EBITDAX or Consolidated Total Assets andother conditions shall, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCA LCT Election”, which LCT Election may be in respect of one or more of clauses (i) the date of determination for calculation of any such ratios shall through (iv) above), be deemed to be (x) the date the definitive agreements (or other relevant definitive documentation) for such Specified Transaction that is a Limited Condition Transaction are entered into or (y) solely in connection with an acquisition to which the United Kingdom City Code on Takeovers and Mergers applies (or similar law in another jurisdiction), the date on which a “Rule 2.7 announcement” of a firm intention to make an offer (or equivalent announcement in another jurisdiction) (a “Public Offer”) in respect of a target of such acquisition (the “LCA LCT Test Date”) and if, ). If on a pro forma basis after giving Pro Forma Effect effect to the such Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence or issuance of Indebtedness or Disqualified Stock and the use of proceeds thereof) ), with such ratios and other provisions calculated as if they such Limited Condition Transaction or other transactions had occurred at the beginning of the most recent date of determination Test Period ending prior to the LCA LCT Test DateDate for which internal financial statements are available, the Borrower could have taken such action on the relevant LCA LCT Test Date in compliance with such ratio the applicable ratios or basketother provisions, such ratio or basket provisions shall be deemed to have been complied with. For the avoidance of doubtdoubt (i) if, if following the Borrower has made an LCA Election and LCT Test Date, any of the such ratios or baskets for which compliance was determined or tested as of the LCA Test Date other provisions are exceeded or breached as a result of fluctuations in any such ratio or basket, (including due to fluctuations in Consolidated EBITDAX EBITDA or Consolidated Total Assets other components of the Borrower such ratio) or the Person subject to such Limited Condition Transaction, other provisions at or prior to the consummation of the relevant transaction or actionLimited Condition Transactions, such baskets or 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 relevant transaction or action Limited Condition Transaction 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 Transaction or related transactions, unless the Borrower elects, in its sole discretion, to be consummated test such ratios and compliance with the conditions on the date such Limited Condition Transaction or takenrelated transaction is consummated. If the Borrower has made an LCA LCT Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio ratio, basket availability or compliance with respect to any other Specified Transaction provision hereunder (other than actual compliance with the Financial Covenant and the Pricing Grid) on or following the relevant LCA LCT Test Date and prior to the earlier earliest of the date on which such Limited Condition Transaction is consummated or consummated, the date that the Doc#: US1:15347125v11 definitive agreement for such Limited Condition Transaction is terminated or expires expires, or the offer in respect of a Public Offer for such acquisition is terminated, without consummation of such Limited Condition TransactionTransaction or the date the Borrower makes an election pursuant to the immediately preceding sentence, any such ratio ratio, basket or compliance with any other provision hereunder shall be calculated on a Pro Forma Basis pro forma basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence or issuance of Indebtedness and any associated Lien or Disqualified Stock and the use of proceeds thereof) have had been consummated.
(b) If since consummated on the beginning LCT Test Date and, in the case of any applicable Test Period any Person that subsequently became a Restricted Subsidiary or was mergedPayment, amalgamated or consolidated with or into the Borrower or any of its Restricted Subsidiaries since the beginning of such Test Period shall have made any Specified Transaction that would have required adjustment pursuant to this Section 1.12, then such financial ratio or test (or Consolidated Total Assets) shall be calculated to give Pro Forma Effect thereto in accordance with this Section 1.12.
(c) Whenever Pro Forma Effect is to be given to a Specified Transaction, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Borrower and may include, for the avoidance of doubt, the amount of “run-rate” cost savings, operating expense reductions and savings from synergies resulting from or relating to any Specified Transactions (including the Transaction) which is being given Pro Forma Effect that have been realized or are expected to be realized and for which the actions necessary to realize such cost savings, operating expense reductions and savings from synergies are taken, committed to be taken or with respect to which substantial steps have been taken or are expected to be taken (in the good faith determination of the Borrower) (calculated on a Pro Forma Basis as though such cost savings, operating expense reductions and savings from synergies had been realized on the first day of such period and as if such cost savings, operating expense reductions and savings from synergies were realized during the entirety of such period) and “run-rate” shall mean the full recurring benefit for a period that is associated with any action taken, committed to be taken or with respect to which substantial steps have been taken or are expected to be taken (including any savings expected to result from the elimination of a public target’s Public Company Costs) net of the amount of actual benefits realized during such period from such actions; provided that (A) such amounts are reasonably identifiable and factually supportable in the good faith judgment of the Borrower, (B) such actions are taken, committed to be taken or with respect to which substantial steps have been taken or are expected to be taken (in the good faith determination of the Borrower) no later than thirty-six (36) months after the date of such Specified Transaction, (C) no amounts shall be added pursuant to this clause (c) to the extent duplicative of any amounts that are otherwise added back in computing Consolidated EBITDAX (or any other components thereof), whether through a pro forma adjustment or otherwise, with respect to basis excluding such period Limited Condition Transaction and (D) it is understood and agreed that subject to compliance with the other provisions of this clause (c), amounts to be included transaction in pro forma calculations pursuant to this Section 1.12 may be included in Test Periods in which the Specified Transaction to which such amounts related is no longer being given Pro Forma Effect pursuant to Section 1.12(a)connection therewith.
(d) In the event that (x) the Borrower or any Restricted Subsidiary issues, repurchases or redeems Disqualified Stock or (y) any Restricted Subsidiary issues, repurchases or redeems Preferred Stock, (i) during the applicable Test Period or (ii) subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then such financial ratio or test shall be calculated giving Pro Forma Effect to such issuance, refinancing or redemption of Disqualified Stock or Preferred Stock to the extent required, as if the same had occurred on the last day of the applicable Test Period.
Appears in 1 contract
Pro Forma and Other Calculations. (a) Notwithstanding anything in this Agreement or any Loan Document to the contrary hereincontrary, for purposes when (i) calculating any applicable ratio, Consolidated Net Income or EBITDA in connection with the incurrence of Indebtedness, the issuance of Disqualified Stock, the creation of Liens, the making of any Disposition, the making of an Investment, the making of a Restricted Payment, the designation of a Subsidiary as a Restricted Subsidiary, any Subsidiary Redesignation or any Restricted Debt Payment, (ii) determining compliance with any test or covenant contained in provision of this Agreement which requires that no Default or Event of Default has occurred, is continuing or would result therefrom, (iii) determining compliance with respect any provision of this Agreement which requires compliance with any representations and warranties set forth herein or (iv) determining the availability for the utilization of any basket, to any period during which any Specified Transaction occursthe incurrence of Indebtedness, the Consolidated Secured Net Leverage Ratio and issuance of Disqualified Stock, the Consolidated Total Net Leverage Ratio shall be calculated with respect to such period and such Specified Transaction on creation of Liens, the making of any Disposition, the making of an Investment, the making of a Pro Forma Basis and Restricted Payment, the designation of a Subsidiary as a Restricted Subsidiary, any Subsidiary Redesignation or any Restricted Debt Payment, in the manner prescribed by this Section 1.12; provided that, each case in connection with any Specified Transaction that is a Limited Condition Transaction, for purposes the date of determining 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 test representations or covenant for any action advisable (as determined by warranties or the Borrower in good faith) for the consummation of a Limited Condition Transaction contained in this Agreement during any period which requires the calculation satisfaction of any of the foregoing ratios or any basket that is determined by reference to Consolidated EBITDAX or Consolidated Total Assets andother conditions shall, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCA LCT Election”, which LCT Election may be in respect of one or more of clauses (i) the date of determination for calculation of any such ratios shall through (iv) above), be deemed to be (x) the date the definitive agreements (or other relevant definitive documentation) for such Specified Transaction that is a Limited Condition Transaction are entered into or (y) solely in connection with an acquisition to which the United Kingdom City Code on Takeovers and Mergers applies (or similar law in another jurisdiction), the date on which a “Rule 2.7 announcement” of a firm intention to make an offer (or equivalent announcement in another jurisdiction) (a “Public Offer”) in respect of a target of such acquisition (the “LCA LCT Test Date”) and if, ). If on a pro forma basis after giving Pro Forma Effect effect to the such Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence or issuance of Indebtedness or Disqualified Stock and the use of proceeds thereof) ), with such ratios and other provisions calculated as if they such Limited Condition Transaction or other transactions had occurred at the beginning of the most recent date of determination Test Period ending prior to the LCA LCT Test DateDate for which internal financial statements are available, the Borrower could have taken such action on the relevant LCA LCT Test Date in compliance with such ratio the applicable ratios or basketother provisions, such ratio or basket provisions shall be deemed to have been complied with. For the avoidance of doubtdoubt (i) if, if following the Borrower has made an LCA Election and LCT Test Date, any of the such ratios or baskets for which compliance was determined or tested as of the LCA Test Date other provisions are exceeded or breached as a result of fluctuations in any such ratio or basket, (including due to fluctuations in Consolidated EBITDAX EBITDA or Consolidated Total Assets other components of the Borrower such ratio) or the Person subject to such Limited Condition Transaction, other provisions at or prior to the consummation of the relevant transaction or actionLimited Condition Transactions, such baskets or 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 relevant transaction or action Limited Condition Transaction 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 Transaction or related transactions, unless the Borrower elects, in its sole discretion, to be consummated test such ratios and compliance with the conditions on the date such Limited Condition Transaction or takenrelated transaction is consummated. If the Borrower has made an LCA LCT Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio ratio, basket availability or compliance with respect to any other Specified Transaction provision hereunder (other than actual compliance with the Financial Covenant and the Pricing Grid) on or following the relevant LCA LCT Test Date and prior to the earlier earliest of the date on which such Limited Condition Transaction is consummated or consummated, the date that the definitive agreement for such Limited Condition Transaction is terminated or expires expires, or the offer in respect of a Public Offer for such acquisition is terminated, without consummation of such Limited Condition TransactionTransaction or the date the Borrower makes an election pursuant to the immediately preceding sentence, any such ratio ratio, basket or compliance with any other provision hereunder shall be calculated on a Pro Forma Basis pro forma basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence or issuance of Indebtedness and any associated Lien or Disqualified Stock and the use of proceeds thereof) have had been consummated.
(b) If since consummated on the beginning LCT Test Date and, in the case of any applicable Test Period any Person that subsequently became a Restricted Subsidiary or was mergedPayment, amalgamated or consolidated with or into the Borrower or any of its Restricted Subsidiaries since the beginning of such Test Period shall have made any Specified Transaction that would have required adjustment pursuant to this Section 1.12, then such financial ratio or test (or Consolidated Total Assets) shall be calculated to give Pro Forma Effect thereto in accordance with this Section 1.12.
(c) Whenever Pro Forma Effect is to be given to a Specified Transaction, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Borrower and may include, for the avoidance of doubt, the amount of “run-rate” cost savings, operating expense reductions and savings from synergies resulting from or relating to any Specified Transactions (including the Transaction) which is being given Pro Forma Effect that have been realized or are expected to be realized and for which the actions necessary to realize such cost savings, operating expense reductions and savings from synergies are taken, committed to be taken or with respect to which substantial steps have been taken or are expected to be taken (in the good faith determination of the Borrower) (calculated on a Pro Forma Basis as though such cost savings, operating expense reductions and savings from synergies had been realized on the first day of such period and as if such cost savings, operating expense reductions and savings from synergies were realized during the entirety of such period) and “run-rate” shall mean the full recurring benefit for a period that is associated with any action taken, committed to be taken or with respect to which substantial steps have been taken or are expected to be taken (including any savings expected to result from the elimination of a public target’s Public Company Costs) net of the amount of actual benefits realized during such period from such actions; provided that (A) such amounts are reasonably identifiable and factually supportable in the good faith judgment of the Borrower, (B) such actions are taken, committed to be taken or with respect to which substantial steps have been taken or are expected to be taken (in the good faith determination of the Borrower) no later than thirty-six (36) months after the date of such Specified Transaction, (C) no amounts shall be added pursuant to this clause (c) to the extent duplicative of any amounts that are otherwise added back in computing Consolidated EBITDAX (or any other components thereof), whether through a pro forma adjustment or otherwise, with respect to basis excluding such period Limited Condition Transaction and (D) it is understood and agreed that subject to compliance with the other provisions of this clause (c), amounts to be included transaction in pro forma calculations pursuant to this Section 1.12 may be included in Test Periods in which the Specified Transaction to which such amounts related is no longer being given Pro Forma Effect pursuant to Section 1.12(a)connection therewith.
(d) In the event that (x) the Borrower or any Restricted Subsidiary issues, repurchases or redeems Disqualified Stock or (y) any Restricted Subsidiary issues, repurchases or redeems Preferred Stock, (i) during the applicable Test Period or (ii) subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then such financial ratio or test shall be calculated giving Pro Forma Effect to such issuance, refinancing or redemption of Disqualified Stock or Preferred Stock to the extent required, as if the same had occurred on the last day of the applicable Test Period.
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