Certain Calculations and Tests. (a) Notwithstanding anything to the contrary herein, to the extent that the terms of this Agreement require (including any such requirement that is to be determined on a Pro Forma Basis) (i) compliance with any financial ratio or test (including Section 6.12 or 6.13, any Consolidated Fixed Charge Coverage Ratio test or any Consolidated Total Net Leverage Ratio test) and/or any cap expressed as a percentage of Consolidated EBITDA or otherwise determined by reference to a financial metric (including by reference to the CNI Growth Amount), (ii) the accuracy of any representation or warranty or (iii) the absence of any Default or Event of Default (or any type of Default or Event of Default), in each case, as a condition to the consummation of, or for purposes of determining permissibility under this Agreement of, any Limited Conditionality Transaction (or, in each case, any assumption or incurrence of any Indebtedness in connection therewith, including under any Incremental Facility Agreement, or any other transaction relating thereto), the determination of whether the relevant condition is satisfied or such Limited Conditionality Transaction (and any related transaction) is permitted under this Agreement may be made, at the election of the Borrower, (1) in the case of any Acquisition or other Investment, 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 such Acquisition or Investment (or, in the case of any Acquisition or Investment made pursuant to a tender or similar offer, at the time of the commencement of such offer) or (y) the consummation of such Acquisition or Investment, (2) in the case of any Disposition, 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 such Disposition or (y) the consummation of such Disposition and (3) in the case of any Restricted Debt Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Debt Payment or (y) the making of such Restricted Debt Payment, in each case, after giving effect on a Pro Forma Basis to (I) the relevant Acquisition, Investment, Disposition and/or Restricted Debt Payment and (II) at the election of the Borrower, to the extent a definitive agreement with respect to such other Acquisition or Investment has been executed (or, in the case of any Acquisition or Investment made pursuant to a tender or similar offer, to the extent such offer has been commenced) or irrevocable notice with respect to such other Restricted Debt Payment has been delivered (which Acquisition, Investment or Restricted Debt Payment has not yet been consummated and with respect to which such definitive agreement, tender or similar offer or notice has not terminated or been revoked without the consummation thereof), any other Acquisition, Investment or Restricted Debt Payment (and/or any related incurrence or prepayment Indebtedness (including the intended use of proceeds thereof) and any other transactions relating thereto) that the Borrower has elected to be tested as set forth in this paragraph. For the avoidance of doubt, this Section 1.08 shall not apply to any extensions of credit under the Revolving Commitment, which such extensions of credit shall be subject to the satisfaction or waiver of the conditions set forth in Section 4.02 on the date of any such extension of credit as set forth therein. (b) For purposes of determining the permissibility of any action, change, transaction or event that requires a calculation of any financial ratio, test or metric (including Section 6.12 or 6.13, any Consolidated Fixed Charge Coverage Ratio test or any Consolidated Total Net Leverage Ratio test and/or the amount of Consolidated Net Income (including for purposes of the CNI Growth Amount) and Consolidated EBITDA), such financial ratio, test or metric shall be calculated at the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be (or, in each case, such other time as is applicable thereto pursuant to paragraph (a) above), and no Default or Event of Default shall be deemed to have occurred solely as a result of a subsequent change in such financial ratio or test. (c) Notwithstanding anything to the contrary herein, with respect to any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that does not require compliance with a financial ratio (including Section 6.12 or 6.13, any Consolidated Fixed Charge Coverage Ratio test or any Consolidated Total Net Leverage Ratio test) (any such amounts, the “Fixed Amounts”) substantially concurrently with any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that requires compliance with a financial ratio (including Section 6.12 or 6.13, any Consolidated Fixed Charge Coverage Ratio test or any Consolidated Total Net Leverage Ratio test) (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that the Fixed Amounts (even if part of the same transaction or, in the case of Indebtedness, the same tranche, as any Incurrence-Based Amounts) shall be disregarded in the calculation of the financial ratio applicable to the Incurrence-Based Amounts, but giving full pro forma effect to any increase in the amount of Consolidated EBITDA or Unrestricted Cash resulting from the reliance on the Fixed Amounts. It is further agreed that, in connection with the calculation of any financial ratio applicable to any incurrence or assumption of Indebtedness in reliance on the Incurrence-Based Amounts, such calculation shall be made on a Pro Forma Basis for the incurrence or assumption of such Indebtedness (including any Acquisition or Investment consummated concurrently therewith and any other application of the proceeds thereof), but without netting the cash proceeds of such Indebtedness, and in the case of any such Indebtedness constituting revolving Indebtedness or delayed draw Indebtedness, assuming that such Indebtedness is fully drawn. (d) It is understood and agreed that any Indebtedness, Lien, Investment, Disposition, Restricted Payment, Restricted Debt Payment or Affiliate transaction need not be permitted solely by reference to one clause or subclause of Section 6.01, 6.02, 6.04, 6.05, 6.07 or 6.08, respectively (or one clause or subclause of any related definitions, including Available Amount), but may instead be permitted in part under any combination of clauses or subclauses of such Section (or such related definition), all as classified or reclassified (in the case of any reclassification to a “ratio-based” basket, only to the extent such alternative classification would have been permitted at the time of the relevant action) by the Borrower in its sole discretion at any time and from time to time, and shall constitute a usage of any availability under such clause or subclause only to the extent so classified or reclassified thereto; provided that the credit facilities established hereunder may only be permitted under Section 6.01(a) and secured by Liens permitted pursuant to Section 6.02(a). In addition, for purposes of determining compliance at any time with Section 6.01, 6.04 or 6.07 (and for purposes of any related definitions), the Borrower may, at any time and from time to time in its sole discretion, reclassify (or deem such reclassification to have occurred automatically), any Indebtedness, Investment, Restricted Payment or Restricted Debt Payment (or a portion thereof), as applicable, that was previously incurred, made or otherwise undertaken under any basket or prong as having been incurred, made or otherwise undertaken under any applicable “ratio-based” basket or prong set forth in such Section (or such related definition) if such item (or such portion thereof) would, using the figures as of the end of or for any Test Period ended after the date of such incurrence, making or undertaking, be permitted under the applicable “ratio-based” basket or prong; provided that, in the case of Sections 6.01 and 6.02, any such reclassification shall be subject to the limitations set forth in the proviso to the immediately preceding sentence. For the avoidance of doubt, any amount so classified or reclassified to any applicable “ratio-based” basket or prong shall be disregarded, and shall be deemed not to be outstanding, for purposes of determining availability under any other applicable exception in such Section (and for purposes of any related definitions) that does not require compliance with a ratio. (e) For purposes of determining compliance with this Agreement, (i) the outstanding principal amount of any Indebtedness issued at a price that is less than the principal amount thereof shall be equal, as of any date of determination, to the principal amount thereof that would appear on a consolidated balance sheet of the Borrower as of such date prepared in accordance with GAAP and (ii) the accrual of interest, the accrual of dividends, the accretion of accreted value, the amortization of original issue discount, the payment of interest or a dividend in the form of additional Indebtedness or additional shares of Equity Interests and/or any increase in the amount of Indebtedness outstanding solely as a result of any fluctuation in the exchange rate of any applicable currency shall not be deemed to be an incurrence of Indebtedness and, to the extent secured, shall not be deemed to result in an increase of the obligations so secured or to be a grant of a Lien securing any such obligations.
Appears in 1 contract
Sources: Amendment and Restatement Agreement (MediaAlpha, Inc.)
Certain Calculations and Tests. (a) Notwithstanding anything to the contrary herein, but subject to this Section 1.10, all financial ratios and tests (including the Total Debt to Total Assets Ratio, the Senior Debt to Total Assets Ratio and the amount of Consolidated Total Assets and the component definitions of any of the foregoing) contained in this Agreement shall be calculated with respect to any applicable Test Period to give effect to all Subject Transactions on a Pro Forma Basis that occurred on or after the first day of such Test Period and on or prior to the date of any required calculation of any financial ratio or test (which may be after the end of such Test Period); provided, that solely for purposes of calculating quarterly compliance with Section 6.13(a), no Subject Transaction occurring after the last day of the Test Period shall be taken into account or given pro forma effect.
(b) With respect to any Limited Condition Transaction, notwithstanding anything to the contrary in this Agreement:
(i) To the extent that the terms of this Agreement require (including A) the making or accuracy of any such requirement that is to be determined on a Pro Forma Basis) representations and warranties (iother than in connection with any acquisition or similar Investment, the Specified Representations as related thereto), (B) compliance with any financial ratio or test Financial Incurrence Test (including including, without limitation, Section 6.12 or 6.136.13(a) hereof, any Consolidated Fixed Charge Coverage Total Debt to Total Assets Ratio test or any Consolidated Total Net Leverage Senior Debt to Totals Assets Ratio test) ), and/or any cap Basket expressed as a percentage of Consolidated EBITDA or otherwise determined by reference to a financial metric (including by reference to the CNI Growth Amount)Total Assets, (ii) the accuracy of any representation or warranty or (iiiC) the absence of any a Default or Event of Default (or any type of Default or Event of Default), (D) compliance with, or determination of availability under, any Basket (including any categories (or subcategories) or items (or sub-items) under Section 2.22, 6.01, 6.02, 6.04, 6.06, 6.07 or 6.09 or any applicable defined terms used in each caseany of the foregoing, including any measured as a condition to the consummation ofpercentage of Consolidated Total Assets) or (E) compliance with, or for purposes of determining permissibility under this Agreement satisfaction of, any Limited Conditionality Transaction (orother condition or requirement, in each case, in connection with any assumption Limited Condition Transactions (or any actions and transactions in connection with any Limited Condition Transaction (including the incurrence of any Indebtedness in connection therewith(and related Liens) pursuant to Sections 2.22 and 6.01)) and any actions or transactions related thereto, including under any Incremental Facility Agreement, or any other transaction relating thereto), the determination of whether the relevant condition is conditions or requirement described in subclauses (A) through (E) above (the “LCT Requirements”) are satisfied or such Limited Conditionality Transaction (and any related transaction) is permitted under this Agreement complied with may be made, at the election of the Borrower (an “LCT Election”), on the date (the “LCT Test Date”) the definitive agreements for such Limited Condition Transaction is entered into (or, if applicable, the date of delivery of irrevocable notice (which may be conditional or subject to deferral) with respect to Indebtedness or declaration of a Restricted Payment).
(ii) If, after giving effect to the Limited Condition Transaction (any related actions and transactions, including the incurrence of any Indebtedness (and related Liens) pursuant to Sections 2.22 and 6.01 and the use of proceeds thereof and related Subject Transactions) and any related pro forma adjustments on a Pro Forma Basis, the Borrower or any of its Restricted Subsidiaries would have been permitted to take such actions or consummate such Limited Condition Transaction (and all related actions and transactions) on the relevant LCT Test Date in compliance with any applicable LCT Requirements, all applicable LCT Requirements shall be deemed to have been complied with (or satisfied) for all purposes and the Borrower and its Restricted Subsidiaries may consummate such Limited Condition Transaction and take or consummate all related actions and transactions at any time subsequent to the LCT Test Date regardless of whether any LCT Requirement determined or tested as of the LCT Test Date would at any time subsequent to such LCT Test Date fail to be complied with or satisfied for any reason whatsoever (including due to the occurrence or existence of any event, fact or circumstance), and no Default or Event of Default shall be deemed to have occurred as a result of the consummation of such Limited Condition Transaction and taking or consummation of all related actions and transactions.
(iii) If internal financial statements of the Borrower of the type described in Section 5.01(a) or Section 5.01(b), as applicable, are available (as determined in good faith by the Borrower) or such financial statements have been delivered pursuant to Section 5.01(a) or Section 5.01(b), as applicable, (1a) the Borrower may elect, in the case of any Acquisition its sole discretion, to re-determine compliance with, or other Investmentsatisfaction of, at the time of (or all applicable LCT Requirements on the basis of such financial statements, in which case, such date of re-determination shall thereafter be deemed to be the financial statements applicable LCT Test Date for purposes of such ratios, tests or baskets, and (b) except as contemplated in the most recently ended foregoing clause (a), compliance with such ratios, tests or baskets (and any related requirements and conditions) shall not be determined or tested at any time after the applicable LCT Test Period at Date.
(iv) In calculating the time ofavailability under any ratio, test, basket, cap or threshold in connection with any action or transaction unrelated to such Limited Condition Transaction (including any other Limited Condition Transaction and related actions and transactions) either (x) following the execution relevant LCT 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 with respect to agreement, the notice redemption, purchase or repayment or the declaration for such Acquisition Limited Condition Transaction is terminated, expires, passes or Investment (oris revoked, in the case of any Acquisition or Investment made pursuant to a tender or similar offeras applicable, at the time of the commencement of such offer) or (y) the without consummation of such Acquisition Limited Condition Transaction, any such ratio, test, basket, cap or Investment, (2) in the case of any Disposition, at the time of (threshold shall be determined 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 tested giving pro forma effect to such Disposition or Limited Condition Transaction (y) the consummation of such Disposition and (3) in the case of any Restricted Debt Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Debt Payment or (y) the making of such Restricted Debt Payment, in each case, after giving effect on a Pro Forma Basis to (I) the relevant Acquisition, Investment, Disposition and/or Restricted Debt Payment related actions and (II) at the election of the Borrower, to the extent a definitive agreement with respect to such other Acquisition or Investment has been executed (or, in the case of any Acquisition or Investment made pursuant to a tender or similar offer, to the extent such offer has been commenced) or irrevocable notice with respect to such other Restricted Debt Payment has been delivered (which Acquisition, Investment or Restricted Debt Payment has not yet been consummated and with respect to which such definitive agreement, tender or similar offer or notice has not terminated or been revoked without the consummation thereoftransactions), any other Acquisition, Investment or Restricted Debt Payment (and/or any related incurrence or prepayment Indebtedness (including the intended use of proceeds thereof) and any other transactions relating thereto) that the Borrower has elected to be tested as set forth in this paragraph. For the avoidance of doubt, this Section 1.08 shall not apply to any extensions of credit under the Revolving Commitment, which such extensions of credit shall be subject to the satisfaction or waiver of the conditions set forth in Section 4.02 on the date of any such extension of credit as set forth therein.
(bc) For purposes of determining the permissibility of any action, change, transaction or event that requires a calculation of any financial ratioratio or test (including, test or metric (including without limitation, Section 6.12 or 6.136.13(a) hereof, any Consolidated Fixed Charge Coverage Total Debt to Total Assets Ratio test or test, any Consolidated Senior Debt to Total Net Leverage Assets Ratio test and/or the amount of Consolidated Net Income (including for purposes of the CNI Growth Amount) and Consolidated EBITDATotal Assets), such financial ratio, ratio or test or metric shall be calculated at the time such action is takentaken (subject to clause (b) above), such change is made, such transaction is consummated or such event occurs, as the case may be (or, in each case, such other time as is applicable thereto pursuant to paragraph (a) above)be, and no Default or Event of Default shall occur or be deemed to have occurred solely as a result of a subsequent change in such financial ratio or testtest occurring after such calculation.
(cd) Notwithstanding anything in this Agreement or any Loan Document to the contrary hereincontrary, in calculating any Non-Fixed Basket any (x) Indebtedness incurred to fund original issue discount and/or upfront fees with respect to Indebtedness incurred under an applicable Non-Fixed Basket or in a concurrent transaction, a single transaction or a series of related transactions with the amount incurred, or transaction entered into or consummated, under an applicable Non-Fixed Basket and (y) any amounts incurred incurred, or transactions entered into (or consummated) , in reliance on a provision of this Agreement that does not require compliance with a financial ratio Fixed Basket (including Section 6.12 the Free and Clear Incremental Amount) in a concurrent transaction, a single transaction or 6.13a series of related transactions with the amount incurred, any Consolidated Fixed Charge Coverage Ratio test or any Consolidated Total Net Leverage Ratio test) (any such amounts, the “Fixed Amounts”) substantially concurrently with any amounts incurred or transactions transaction entered into (or consummated, under an applicable Non-Fixed Basket, in each case of the foregoing clauses (x) in reliance on a provision of this Agreement that requires compliance with a financial ratio and (including Section 6.12 or 6.13, any Consolidated Fixed Charge Coverage Ratio test or any Consolidated Total Net Leverage Ratio test) (any such amounts, the “Incurrence-Based Amounts”y), it is understood and agreed that the Fixed Amounts (even if part of the same transaction or, in the case of Indebtedness, the same tranche, as any Incurrence-Based Amounts) shall be disregarded in the calculation of the financial ratio applicable to the Incurrencesuch Non-Based Amounts, but giving full pro forma effect to any increase in the amount of Consolidated EBITDA or Unrestricted Cash resulting from the reliance on the Fixed Amounts. It is further agreed that, in connection with the calculation of any financial ratio applicable to any incurrence or assumption of Indebtedness in reliance on the Incurrence-Based Amounts, such calculation shall be made on a Pro Forma Basis for the incurrence or assumption of such Indebtedness (including any Acquisition or Investment consummated concurrently therewith and any other application of the proceeds thereof), but without netting the cash proceeds of such Indebtedness, and in the case of any such Indebtedness constituting revolving Indebtedness or delayed draw Indebtedness, assuming that such Indebtedness is fully drawn.
(d) It is understood and agreed that any Indebtedness, Lien, Investment, Disposition, Restricted Payment, Restricted Debt Payment or Affiliate transaction need not be permitted solely by reference to one clause or subclause of Section 6.01, 6.02, 6.04, 6.05, 6.07 or 6.08, respectively (or one clause or subclause of any related definitions, including Available Amount), but may instead be permitted in part under any combination of clauses or subclauses of such Section (or such related definition), all as classified or reclassified (in the case of any reclassification to a “ratio-based” basket, only to the extent such alternative classification would have been permitted at the time of the relevant action) by the Borrower in its sole discretion at any time and from time to time, and shall constitute a usage of any availability under such clause or subclause only to the extent so classified or reclassified thereto; provided that the credit facilities established hereunder may only be permitted under Section 6.01(a) and secured by Liens permitted pursuant to Section 6.02(a). In addition, for purposes of determining compliance at any time with Section 6.01, 6.04 or 6.07 (and for purposes of any related definitions), the Borrower may, at any time and from time to time in its sole discretion, reclassify (or deem such reclassification to have occurred automatically), any Indebtedness, Investment, Restricted Payment or Restricted Debt Payment (or a portion thereof), as applicable, that was previously incurred, made or otherwise undertaken under any basket or prong as having been incurred, made or otherwise undertaken under any applicable “ratio-based” basket or prong set forth in such Section (or such related definition) if such item (or such portion thereof) would, using the figures as of the end of or for any Test Period ended after the date of such incurrence, making or undertaking, be permitted under the applicable “ratio-based” basket or prong; provided that, in the case of Sections 6.01 and 6.02, any such reclassification shall be subject to the limitations set forth in the proviso to the immediately preceding sentenceBasket. For the avoidance of doubt, any amount so classified or reclassified to any applicable “ratio-based” basket or prong shall be disregarded, and shall be deemed not to be outstanding, for all purposes of determining availability under any other applicable exception in such Section (and for purposes of any related definitions) that does not require compliance with a ratio.
(e) For purposes of determining compliance with this Agreementhereunder, (i) the outstanding principal amount of “Fixed Basket” shall mean any Indebtedness issued at a price Basket that is less than the principal amount thereof shall be equal, as of any date of determination, subject to the principal amount thereof that would appear a fixed-dollar limit (including Baskets based on a consolidated balance sheet percentage of the Borrower as of such date prepared in accordance with GAAP and Consolidated Total Assets), (ii) the accrual of interest, the accrual of dividends, the accretion of accreted value, the amortization of original issue discount, the payment of interest or a dividend in the form of additional Indebtedness or additional shares of Equity Interests and/or “Non-Fixed Basket” shall mean any increase in the amount of Indebtedness outstanding solely as a result of any fluctuation in the exchange rate of any applicable currency shall not be deemed Basket that is subject to be an incurrence of Indebtedness and, to the extent secured, shall not be deemed to result in an increase of the obligations so secured or to be a grant of a Lien securing any such obligations.compliance with a
Appears in 1 contract
Sources: Term Loan Credit Agreement (Blackstone Mortgage Trust, Inc.)
Certain Calculations and Tests. (a) Notwithstanding anything to the contrary herein, but subject to this Section 1.10, all financial ratios and tests (including the Total Debt to Total Assets Ratio, the Senior Debt to Total Assets Ratio and the amount of Consolidated Total Assets and the component definitions of any of the foregoing) contained in this Agreement shall be calculated with respect to any applicable Test Period to give effect to all Subject Transactions on a Pro Forma Basis that occurred on or after the first day of such Test Period and on or prior to the date of any required calculation of any financial ratio or test (which may 60 be after the end of such Test Period); provided, that solely for purposes of calculating quarterly compliance with Section 6.13(a), no Subject Transaction occurring after the last day of the Test Period shall be taken into account or given pro forma effect.
(b) With respect to any Limited Condition Transaction, notwithstanding anything to the contrary in this Agreement:
(i) To the extent that the terms of this Agreement require (including A) the making or accuracy of any such requirement that is to be determined on a Pro Forma Basis) representations and warranties (iother than in connection with any acquisition or similar Investment, the Specified Representations as related thereto), (B) compliance with any financial ratio or test Financial Incurrence Test (including including, without limitation, Section 6.12 or 6.136.13(a) hereof, any Consolidated Fixed Charge Coverage Total Debt to Total Assets Ratio test or any Consolidated Total Net Leverage Senior Debt to Totals Assets Ratio test) ), and/or any cap Basket expressed as a percentage of Consolidated EBITDA or otherwise determined by reference to a financial metric (including by reference to the CNI Growth Amount)Total Assets, (ii) the accuracy of any representation or warranty or (iiiC) the absence of any a Default or Event of Default (or any type of Default or Event of Default), (D) compliance with, or determination of availability under, any Basket (including any categories (or subcategories) or items (or sub-items) under Section 2.22, 6.01, 6.02, 6.04, 6.06, 6.07 or 6.09 or any applicable defined terms used in each caseany of the foregoing, including any measured as a condition to the consummation ofpercentage of Consolidated Total Assets) or (E) compliance with, or for purposes of determining permissibility under this Agreement satisfaction of, any Limited Conditionality Transaction (orother condition or requirement, in each case, in connection with any assumption Limited Condition Transactions (or any actions and transactions in connection with any Limited Condition Transaction (including the incurrence of any Indebtedness in connection therewith(and related Liens) pursuant to Sections 2.22 and 6.01)) and any actions or transactions related thereto, including under any Incremental Facility Agreement, or any other transaction relating thereto), the determination of whether the relevant condition is conditions or requirement described in subclauses (A) through (E) above (the “LCT Requirements”) are satisfied or such Limited Conditionality Transaction (and any related transaction) is permitted under this Agreement complied with may be made, at the election of the Borrower (an “LCT Election”), on the date (the “LCT Test Date”) the definitive agreements for such Limited Condition Transaction is entered into (or, if applicable, the date of delivery of irrevocable notice (which may be conditional or subject to deferral) with respect to Indebtedness or declaration of a Restricted Payment).
(ii) If, after giving effect to the Limited Condition Transaction (any related actions and transactions, including the incurrence of any Indebtedness (and related Liens) pursuant to Sections 2.22 and 6.01 and the use of proceeds thereof and related Subject Transactions) and any related pro forma adjustments on a Pro Forma Basis, the Borrower or any of its Restricted Subsidiaries would have been permitted to take such actions or consummate such Limited Condition Transaction (and all related actions and transactions) on the relevant LCT Test Date in compliance with any applicable LCT Requirements, all applicable LCT Requirements shall be deemed to have been complied with (or satisfied) for all purposes and the Borrower and its Restricted Subsidiaries may consummate such Limited Condition Transaction and take or consummate all related actions and transactions at any time subsequent to the LCT Test Date regardless of whether any LCT Requirement determined or tested as of the LCT Test Date would at any time subsequent to such LCT Test Date fail to be complied with or satisfied for any reason whatsoever (including due to the occurrence or existence of any event, fact or circumstance), and no Default or Event of Default shall be deemed to have occurred as a result of the consummation of such Limited Condition Transaction and taking or consummation of all related actions and transactions.
(iii) If internal financial statements of the Borrower of the type described in Section 5.01(a) or Section 5.01(b), as applicable, are available (as determined in good faith by the Borrower) or such financial statements have been delivered pursuant to Section 5.01(a) or Section 5.01(b), as applicable, (1a) the Borrower may elect, in the case of any Acquisition its sole discretion, to re-determine compliance with, or other Investmentsatisfaction of, at the time of (or all applicable LCT Requirements on the basis of such financial statements, in which case, such date of re-determination shall thereafter be deemed to be the financial statements applicable LCT Test Date for purposes of such ratios, tests or baskets, and (b) except as contemplated in the most recently ended foregoing clause (a), compliance with such ratios, tests or baskets (and any related requirements and conditions) shall not be determined or tested at any time after the applicable LCT Test Period at Date.
(iv) In calculating the time ofavailability under any ratio, test, basket, cap or threshold in connection with any action or transaction unrelated to such Limited Condition Transaction (including any other Limited Condition Transaction and related actions and transactions) either (x) following the execution relevant LCT 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 with respect to agreement, the notice redemption, purchase or repayment or the declaration for such Acquisition Limited Condition Transaction is terminated, expires, passes or Investment (oris revoked, in the case of any Acquisition or Investment made pursuant to a tender or similar offeras applicable, at the time of the commencement of such offer) or (y) the without consummation of such Acquisition Limited Condition Transaction, any such ratio, test, basket, cap or Investment, (2) in the case of any Disposition, at the time of (threshold shall be determined 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 tested giving pro forma effect to such Disposition or Limited Condition Transaction (y) the consummation of such Disposition and (3) in the case of any Restricted Debt Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Debt Payment or (y) the making of such Restricted Debt Payment, in each case, after giving effect on a Pro Forma Basis to (I) the relevant Acquisition, Investment, Disposition and/or Restricted Debt Payment related actions and (II) at the election of the Borrower, to the extent a definitive agreement with respect to such other Acquisition or Investment has been executed (or, in the case of any Acquisition or Investment made pursuant to a tender or similar offer, to the extent such offer has been commenced) or irrevocable notice with respect to such other Restricted Debt Payment has been delivered (which Acquisition, Investment or Restricted Debt Payment has not yet been consummated and with respect to which such definitive agreement, tender or similar offer or notice has not terminated or been revoked without the consummation thereoftransactions), any other Acquisition, Investment or Restricted Debt Payment (and/or any related incurrence or prepayment Indebtedness (including the intended use of proceeds thereof) and any other transactions relating thereto) that the Borrower has elected to be tested as set forth in this paragraph. For the avoidance of doubt, this Section 1.08 shall not apply to any extensions of credit under the Revolving Commitment, which such extensions of credit shall be subject to the satisfaction or waiver of the conditions set forth in Section 4.02 on the date of any such extension of credit as set forth therein.
(bc) For purposes of determining the permissibility of any action, change, transaction or event that requires a calculation of any financial ratioratio or test (including, test or metric (including without limitation, Section 6.12 or 6.136.13(a) hereof, any Consolidated Fixed Charge Coverage Total Debt to Total Assets Ratio test or test, any Consolidated Senior Debt to Total Net Leverage Assets Ratio test and/or the amount of Consolidated Net Income (including for purposes of the CNI Growth Amount) and Consolidated EBITDATotal Assets), such financial ratio, ratio or test or metric shall be calculated at the time such action is takentaken (subject to clause (b) above), such change is made, such transaction is consummated or such event occurs, as the case may be (or, in each case, such other time as is applicable thereto pursuant to paragraph (a) above)be, and no Default or Event of Default shall occur or be deemed to have occurred solely as a result of a subsequent change in such financial ratio or testtest occurring after such calculation.
(cd) Notwithstanding anything in this Agreement or any Loan Document to the contrary hereincontrary, in calculating any Non-Fixed Basket any (x) Indebtedness incurred to fund original issue discount and/or upfront fees with respect to Indebtedness incurred under an applicable Non-Fixed Basket or in a concurrent transaction, a single transaction or a series of related transactions with the amount incurred, or transaction entered into or consummated, under an applicable Non-Fixed Basket and (y) any amounts incurred incurred, or transactions entered into (or consummated) , in reliance on a provision of this Agreement that does not require compliance with a financial ratio Fixed Basket (including Section 6.12 the Free and Clear Incremental Amount) in a concurrent transaction, a single transaction or 6.13a series of related transactions with the amount incurred, any Consolidated Fixed Charge Coverage Ratio test or any Consolidated Total Net Leverage Ratio test) (any such amounts, the “Fixed Amounts”) substantially concurrently with any amounts incurred or transactions transaction entered into (or consummated, under an applicable Non-Fixed Basket, in each case of the foregoing clauses (x) in reliance on a provision of this Agreement that requires compliance with a financial ratio and (including Section 6.12 or 6.13, any Consolidated Fixed Charge Coverage Ratio test or any Consolidated Total Net Leverage Ratio test) (any such amounts, the “Incurrence-Based Amounts”y), it is understood and agreed that the Fixed Amounts (even if part of the same transaction or, in the case of Indebtedness, the same tranche, as any Incurrence-Based Amounts) shall be disregarded in the calculation of the such Non-Fixed Basket. For all purposes hereunder, (i) “Fixed Basket” shall mean any Basket that is subject to a fixed-dollar limit (including Baskets based on a percentage of Consolidated Total Assets), (ii) “Non-Fixed Basket” shall mean any Basket that is subject to compliance with a financial ratio applicable or test (including, without limitation, the Financial Covenant, the Senior Debt to Total Assets Ratio and the Total Debt to Total Assets Ratio) (any such ratio or test, a “Financial Incurrence Test”) and (iii) “Basket” means any amount, threshold, exception or value (including by reference to the Incurrence-Based AmountsSenior Debt to Total Assets Ratio, but giving full pro forma effect the Total Debt to Total Assets Ratio or Consolidated Total Assets) permitted or prescribed with respect to any increase in the amount of Consolidated EBITDA or Unrestricted Cash resulting from the reliance on the Fixed Amounts. It is further agreed that, in connection with the calculation of any financial ratio applicable to any incurrence or assumption of Indebtedness in reliance on the Incurrence-Based Amounts, such calculation shall be made on a Pro Forma Basis for the incurrence or assumption of such Indebtedness (including any Acquisition Incremental Facility, Incremental Term Loan or Investment consummated concurrently therewith and any other application of the proceeds thereofIncremental Equivalent Debt), but without netting the cash proceeds of such Indebtedness, and in the case of any such Indebtedness constituting revolving Indebtedness or delayed draw Indebtedness, assuming that such Indebtedness is fully drawn.
(d) It is understood and agreed that any Indebtedness, Lien, Investment, Disposition, Restricted Payment, Restricted Debt Payment or Affiliate transaction need not be permitted solely by reference to one clause or subclause of Section 6.01Payment, 6.02, 6.04, 6.05, 6.07 or 6.08, respectively (or one clause or subclause of any related definitions, including Available Amount), but may instead be permitted in part under any combination of clauses or subclauses of such Section (or such related definition), all as classified or reclassified (in the case of any reclassification to a “ratio-based” basket, only to the extent such alternative classification would have been permitted at the time of the relevant action) by the Borrower in its sole discretion at any time and from time to time, and shall constitute a usage of any availability under such clause or subclause only to the extent so classified or reclassified thereto; provided that the credit facilities established hereunder may only be permitted under Section 6.01(a) and secured by Liens permitted pursuant to Section 6.02(a). In addition, for purposes of determining compliance at any time with Section 6.01, 6.04 or 6.07 (and for purposes of any related definitions), the Borrower may, at any time and from time to time in its sole discretion, reclassify (or deem such reclassification to have occurred automatically), any IndebtednessBurdensome Agreement, Investment, Restricted Payment Disposition, Affiliate transaction or Restricted Debt Payment (any transaction, action, judgment or a portion thereof), as applicable, that was previously incurred, made or otherwise undertaken amount under any basket provision in this Agreement or prong as having been incurred, made or otherwise undertaken under any applicable “ratio-based” basket or prong set forth in such Section (or such related definition) if such item (or such portion thereof) would, using the figures as of the end of or for any Test Period ended after the date of such incurrence, making or undertaking, be permitted under the applicable “ratio-based” basket or prong; provided that, in the case of Sections 6.01 and 6.02, any such reclassification shall be subject to the limitations set forth in the proviso to the immediately preceding sentence. For the avoidance of doubt, any amount so classified or reclassified to any applicable “ratio-based” basket or prong shall be disregarded, and shall be deemed not to be outstanding, for purposes of determining availability under any other applicable exception in such Section (and for purposes of any related definitions) that does not require compliance with a ratioLoan Document.
(e) For purposes of determining compliance with this Agreement, (i) the outstanding principal amount of any Indebtedness issued at a price that is less than the principal amount thereof shall be equal, as of any date of determination, to the principal amount thereof that would appear on a consolidated balance sheet of the Borrower as of such date prepared in accordance with GAAP and (ii) the accrual of interest, the accrual of dividends, the accretion of accreted value, the amortization of original issue discount, the payment of interest or a dividend in the form of additional Indebtedness or additional shares of Equity Interests and/or any increase in the amount of Indebtedness outstanding solely as a result of any fluctuation in the exchange rate of any applicable currency shall not be deemed to be an incurrence of Indebtedness and, to the extent secured, shall not be deemed to result in an increase of the obligations so secured or to be a grant of a Lien securing any such obligations.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Blackstone Mortgage Trust, Inc.)
Certain Calculations and Tests. (a) Notwithstanding anything to the contrary herein, but subject to Sections 1.06 (b) and (c), all financial ratios and tests (including the Leverage Ratio, the Interest Coverage Ratio and the amount of Consolidated EBITDA) contained in this Agreement that are calculated with respect to any Test Period shall be calculated with respect to such Test Period on a Pro Forma basis.
(b) Notwithstanding anything to the contrary herein (including in connection with any calculation made on a Pro Forma basis), to the extent that the terms of this Agreement require (including any such requirement that is to be determined on a Pro Forma Basis) (i) compliance with any financial ratio or test (including including, without limitation, Section 6.12 or 6.137.01, Section 7.02, any Consolidated Fixed Charge Coverage Leverage Ratio test or and/or any Consolidated Total Net Leverage Interest Coverage Ratio test) and/or any cap expressed as a percentage of Consolidated EBITDA or otherwise determined by reference to a financial metric (including by reference to the CNI Growth Amount), (ii) the accuracy of any representation or warranty or (iii) the absence of any a Default or Event of Default (or any type of Default or Event of Default), ) or the making of representations and warranties by each Loan Party as set forth in each case, the Loan Documents as a condition conditions to the consummation of, or for purposes of determining permissibility under this Agreement of, any Limited Conditionality Transaction (or, in each case, any assumption or incurrence of any Indebtedness in connection therewith, including under any Incremental Facility Agreement, with an acquisition or any other transaction relating thereto)similar investment, the determination of whether the relevant condition is satisfied or such Limited Conditionality Transaction (and any related transaction) is permitted under this Agreement may be made, at the election (any such election, a “Testing Election”) of the Borrower, (1) in the case of any Acquisition or other Investment, Borrower 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 such Acquisition acquisition or Investment (or, in the case of any Acquisition or Investment made pursuant to a tender or similar offer, at the time of the commencement of such offer) investment or (y) the consummation of such Acquisition acquisition or Investment, (2) in the case of any Disposition, 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 such Disposition or (y) the consummation of such Disposition and (3) in the case of any Restricted Debt Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Debt Payment or (y) the making of such Restricted Debt Payment, in each case, investment after giving effect to the relevant acquisition or investment on a Pro Forma Basis to (I) the relevant Acquisition, Investment, Disposition and/or Restricted Debt Payment and (II) at the election of the Borrower, to the extent a definitive agreement with respect to such other Acquisition or Investment has been executed (or, in the case of any Acquisition or Investment made pursuant to a tender or similar offer, to the extent such offer has been commenced) or irrevocable notice with respect to such other Restricted Debt Payment has been delivered (which Acquisition, Investment or Restricted Debt Payment has not yet been consummated and with respect to which such definitive agreement, tender or similar offer or notice has not terminated or been revoked without the consummation thereof), any other Acquisition, Investment or Restricted Debt Payment (and/or any related incurrence or prepayment Indebtedness (including the intended use of proceeds thereof) and any other transactions relating thereto) that the Borrower has elected to be tested as set forth in this paragraph. For the avoidance of doubt, this Section 1.08 shall not apply to any extensions of credit under the Revolving Commitment, which such extensions of credit shall be subject to the satisfaction or waiver of the conditions set forth in Section 4.02 on the date of any such extension of credit as set forth thereinbasis.
(bc) For purposes of determining the permissibility of any action, change, transaction or event that requires a calculation of any financial ratioratio or test (including, test or metric (including without limitation, Section 6.12 or 6.137.01, Section 7.02, any Consolidated Fixed Charge Leverage Ratio test, any Interest Coverage Ratio test or any Consolidated Total Net Leverage Ratio test test, and/or the amount of Consolidated Net Income (including for purposes of the CNI Growth Amount) and Consolidated EBITDA), such financial ratio, ratio or test or metric shall be calculated at the time such action is taken (subject to clause (b) above), such change is made, such transaction is consummated or such event occurs, as the case may be, and no Default or Event of Default shall be deemed to have occurred solely as a result of a change in such financial ratio or test occurring after the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be (or, in each case, such other time as is applicable thereto pursuant to paragraph (a) above), and no Default or Event of Default shall be deemed to have occurred solely as a result of a subsequent change in such financial ratio or testbe.
(c) Notwithstanding anything to the contrary herein, with respect to any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that does not require compliance with a financial ratio (including Section 6.12 or 6.13, any Consolidated Fixed Charge Coverage Ratio test or any Consolidated Total Net Leverage Ratio test) (any such amounts, the “Fixed Amounts”) substantially concurrently with any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that requires compliance with a financial ratio (including Section 6.12 or 6.13, any Consolidated Fixed Charge Coverage Ratio test or any Consolidated Total Net Leverage Ratio test) (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that the Fixed Amounts (even if part of the same transaction or, in the case of Indebtedness, the same tranche, as any Incurrence-Based Amounts) shall be disregarded in the calculation of the financial ratio applicable to the Incurrence-Based Amounts, but giving full pro forma effect to any increase in the amount of Consolidated EBITDA or Unrestricted Cash resulting from the reliance on the Fixed Amounts. It is further agreed that, in connection with the calculation of any financial ratio applicable to any incurrence or assumption of Indebtedness in reliance on the Incurrence-Based Amounts, such calculation shall be made on a Pro Forma Basis for the incurrence or assumption of such Indebtedness (including any Acquisition or Investment consummated concurrently therewith and any other application of the proceeds thereof), but without netting the cash proceeds of such Indebtedness, and in the case of any such Indebtedness constituting revolving Indebtedness or delayed draw Indebtedness, assuming that such Indebtedness is fully drawn.
(d) It is understood and agreed that any Indebtedness, Lien, Investment, Disposition, Restricted Payment, Restricted Debt Payment or Affiliate transaction need not be permitted solely by reference to one clause or subclause of Section 6.01, 6.02, 6.04, 6.05, 6.07 or 6.08, respectively (or one clause or subclause of any related definitions, including Available Amount), but may instead be permitted in part under any combination of clauses or subclauses of such Section (or such related definition), all as classified or reclassified (in the case of any reclassification to a “ratio-based” basket, only to the extent such alternative classification would have been permitted at the time of the relevant action) by the Borrower in its sole discretion at any time and from time to time, and shall constitute a usage of any availability under such clause or subclause only to the extent so classified or reclassified thereto; provided that the credit facilities established hereunder may only be permitted under Section 6.01(a) and secured by Liens permitted pursuant to Section 6.02(a). In addition, for purposes of determining compliance at any time with Section 6.01, 6.04 or 6.07 (and for purposes of any related definitions), the Borrower may, at any time and from time to time in its sole discretion, reclassify (or deem such reclassification to have occurred automatically), any Indebtedness, Investment, Restricted Payment or Restricted Debt Payment (or a portion thereof), as applicable, that was previously incurred, made or otherwise undertaken under any basket or prong as having been incurred, made or otherwise undertaken under any applicable “ratio-based” basket or prong set forth in such Section (or such related definition) if such item (or such portion thereof) would, using the figures as of the end of or for any Test Period ended after the date of such incurrence, making or undertaking, be permitted under the applicable “ratio-based” basket or prong; provided that, in the case of Sections 6.01 and 6.02, any such reclassification shall be subject to the limitations set forth in the proviso to the immediately preceding sentence. For the avoidance of doubt, any amount so classified or reclassified to any applicable “ratio-based” basket or prong shall be disregarded, and shall be deemed not to be outstanding, for purposes of determining availability under any other applicable exception in such Section (and for purposes of any related definitions) that does not require compliance with a ratio.
(e) For purposes of determining compliance with this Agreement, (i) the outstanding principal amount of any Indebtedness issued at a price that is less than the principal amount thereof shall be equal, as of any date of determination, to the principal amount thereof that would appear on a consolidated balance sheet of the Borrower as of such date prepared in accordance with GAAP and (ii) the accrual of interest, the accrual of dividends, the accretion of accreted value, the amortization of original issue discount, the payment of interest or a dividend in the form of additional Indebtedness or additional shares of Equity Interests and/or any increase in the amount of Indebtedness outstanding solely as a result of any fluctuation in the exchange rate of any applicable currency shall not be deemed to be an incurrence of Indebtedness and, to the extent secured, shall not be deemed to result in an increase of the obligations so secured or to be a grant of a Lien securing any such obligations.
Appears in 1 contract
Sources: Credit Agreement (IHS Markit Ltd.)
Certain Calculations and Tests. (a) Notwithstanding anything to the contrary herein, but subject to Sections 1.6 (b) and (c), all financial ratios and tests (including the Leverage Ratio, the Interest Coverage Ratio and the amount of Consolidated EBITDA) contained in this Agreement that are calculated with respect to any Test Period shall be calculated with respect to such Test Period on a Pro Forma basis.
(b) Notwithstanding anything to the contrary herein (including in connection with any calculation made on a Pro Forma basis), to the extent that the terms of this Agreement require (including any such requirement that is to be determined on a Pro Forma Basis) (i) compliance with any financial ratio or test (including including, without limitation, Section 6.12 or 6.137.01, Section 7.02, any Consolidated Fixed Charge Coverage Leverage Ratio test or and/or any Consolidated Total Net Leverage Interest Coverage Ratio test) and/or any cap expressed as a percentage of Consolidated EBITDA or otherwise determined by reference to a financial metric (including by reference to the CNI Growth Amount), (ii) the accuracy of any representation or warranty or (iii) the absence of any a Default or Event of Default (or any type of Default or Event of Default), ) or the making of representations and warranties by each Loan Party as set forth in each case, the Loan Documents as a condition conditions to the consummation of, or for purposes of determining permissibility under this Agreement of, any Limited Conditionality Transaction (or, in each case, any assumption or incurrence of any Indebtedness in connection therewith, including under any Incremental Facility Agreement, with an acquisition or any other transaction relating thereto)similar investment, the determination of whether the relevant condition is satisfied or such Limited Conditionality Transaction (and any related transaction) is permitted under this Agreement may be made, at the election (any such election, a “Testing Election”) of the Borrower, (1) in the case of any Acquisition or other Investment, Borrower 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 such Acquisition acquisition or Investment (or, in the case of any Acquisition or Investment made pursuant to a tender or similar offer, at the time of the commencement of such offer) investment or (y) the consummation of such Acquisition acquisition or Investment, (2) in the case of any Disposition, 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 such Disposition or (y) the consummation of such Disposition and (3) in the case of any Restricted Debt Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Debt Payment or (y) the making of such Restricted Debt Payment, in each case, investment after giving effect to the relevant acquisition or investment on a Pro Forma Basis to (I) the relevant Acquisition, Investment, Disposition and/or Restricted Debt Payment and (II) at the election of the Borrower, to the extent a definitive agreement with respect to such other Acquisition or Investment has been executed (or, in the case of any Acquisition or Investment made pursuant to a tender or similar offer, to the extent such offer has been commenced) or irrevocable notice with respect to such other Restricted Debt Payment has been delivered (which Acquisition, Investment or Restricted Debt Payment has not yet been consummated and with respect to which such definitive agreement, tender or similar offer or notice has not terminated or been revoked without the consummation thereof), any other Acquisition, Investment or Restricted Debt Payment (and/or any related incurrence or prepayment Indebtedness (including the intended use of proceeds thereof) and any other transactions relating thereto) that the Borrower has elected to be tested as set forth in this paragraph. For the avoidance of doubt, this Section 1.08 shall not apply to any extensions of credit under the Revolving Commitment, which such extensions of credit shall be subject to the satisfaction or waiver of the conditions set forth in Section 4.02 on the date of any such extension of credit as set forth thereinbasis.
(bc) For purposes of determining the permissibility of any action, change, transaction or event that requires a calculation of any financial ratioratio or test (including, test or metric (including without limitation, Section 6.12 or 6.137.01, Section 7.02, any Consolidated Fixed Charge Leverage Ratio test, any Interest Coverage Ratio test or any Consolidated Total Net Leverage Ratio test test, and/or the amount of Consolidated Net Income (including for purposes of the CNI Growth Amount) and Consolidated EBITDA), such financial ratio, ratio or test or metric shall be calculated at the time such action is taken (subject to clause (b) above), such change is made, such transaction is consummated or such event occurs, as the case may be, and no Default or Event of Default shall be deemed to have occurred solely as a result of a change in such financial ratio or test occurring after the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be (or, in each case, such other time as is applicable thereto pursuant to paragraph (a) above), and no Default or Event of Default shall be deemed to have occurred solely as a result of a subsequent change in such financial ratio or testbe.
(c) Notwithstanding anything to the contrary herein, with respect to any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that does not require compliance with a financial ratio (including Section 6.12 or 6.13, any Consolidated Fixed Charge Coverage Ratio test or any Consolidated Total Net Leverage Ratio test) (any such amounts, the “Fixed Amounts”) substantially concurrently with any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that requires compliance with a financial ratio (including Section 6.12 or 6.13, any Consolidated Fixed Charge Coverage Ratio test or any Consolidated Total Net Leverage Ratio test) (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that the Fixed Amounts (even if part of the same transaction or, in the case of Indebtedness, the same tranche, as any Incurrence-Based Amounts) shall be disregarded in the calculation of the financial ratio applicable to the Incurrence-Based Amounts, but giving full pro forma effect to any increase in the amount of Consolidated EBITDA or Unrestricted Cash resulting from the reliance on the Fixed Amounts. It is further agreed that, in connection with the calculation of any financial ratio applicable to any incurrence or assumption of Indebtedness in reliance on the Incurrence-Based Amounts, such calculation shall be made on a Pro Forma Basis for the incurrence or assumption of such Indebtedness (including any Acquisition or Investment consummated concurrently therewith and any other application of the proceeds thereof), but without netting the cash proceeds of such Indebtedness, and in the case of any such Indebtedness constituting revolving Indebtedness or delayed draw Indebtedness, assuming that such Indebtedness is fully drawn.
(d) It is understood and agreed that any Indebtedness, Lien, Investment, Disposition, Restricted Payment, Restricted Debt Payment or Affiliate transaction need not be permitted solely by reference to one clause or subclause of Section 6.01, 6.02, 6.04, 6.05, 6.07 or 6.08, respectively (or one clause or subclause of any related definitions, including Available Amount), but may instead be permitted in part under any combination of clauses or subclauses of such Section (or such related definition), all as classified or reclassified (in the case of any reclassification to a “ratio-based” basket, only to the extent such alternative classification would have been permitted at the time of the relevant action) by the Borrower in its sole discretion at any time and from time to time, and shall constitute a usage of any availability under such clause or subclause only to the extent so classified or reclassified thereto; provided that the credit facilities established hereunder may only be permitted under Section 6.01(a) and secured by Liens permitted pursuant to Section 6.02(a). In addition, for purposes of determining compliance at any time with Section 6.01, 6.04 or 6.07 (and for purposes of any related definitions), the Borrower may, at any time and from time to time in its sole discretion, reclassify (or deem such reclassification to have occurred automatically), any Indebtedness, Investment, Restricted Payment or Restricted Debt Payment (or a portion thereof), as applicable, that was previously incurred, made or otherwise undertaken under any basket or prong as having been incurred, made or otherwise undertaken under any applicable “ratio-based” basket or prong set forth in such Section (or such related definition) if such item (or such portion thereof) would, using the figures as of the end of or for any Test Period ended after the date of such incurrence, making or undertaking, be permitted under the applicable “ratio-based” basket or prong; provided that, in the case of Sections 6.01 and 6.02, any such reclassification shall be subject to the limitations set forth in the proviso to the immediately preceding sentence. For the avoidance of doubt, any amount so classified or reclassified to any applicable “ratio-based” basket or prong shall be disregarded, and shall be deemed not to be outstanding, for purposes of determining availability under any other applicable exception in such Section (and for purposes of any related definitions) that does not require compliance with a ratio.
(e) For purposes of determining compliance with this Agreement, (i) the outstanding principal amount of any Indebtedness issued at a price that is less than the principal amount thereof shall be equal, as of any date of determination, to the principal amount thereof that would appear on a consolidated balance sheet of the Borrower as of such date prepared in accordance with GAAP and (ii) the accrual of interest, the accrual of dividends, the accretion of accreted value, the amortization of original issue discount, the payment of interest or a dividend in the form of additional Indebtedness or additional shares of Equity Interests and/or any increase in the amount of Indebtedness outstanding solely as a result of any fluctuation in the exchange rate of any applicable currency shall not be deemed to be an incurrence of Indebtedness and, to the extent secured, shall not be deemed to result in an increase of the obligations so secured or to be a grant of a Lien securing any such obligations.
Appears in 1 contract
Sources: Credit Agreement (IHS Markit Ltd.)
Certain Calculations and Tests. (a) Notwithstanding anything to the contrary herein, but subject to this Section 1.10, all financial ratios and tests (including the Total Debt to Tangible Net Worth Ratio, the Senior Debt to Tangible Net Worth Ratio and the amount of Consolidated Total Assets and the component definitions of any of the foregoing) contained in this Agreement shall be calculated with respect to any applicable Test Period to give effect to all Subject Transactions on a Pro Forma Basis that occurred on or after the first day of such Test Period and on or prior to the date of any required calculation of any financial ratio or test (which may be after the end of such Test Period); provided, that solely for purposes of calculating quarterly compliance with Section 6.13(a), no Subject Transaction occurring after the last day of the Test Period shall be taken into account or given pro forma effect.
(b) With respect to any Limited Condition Transaction, notwithstanding anything to the contrary in this Agreement:
(i) To the extent that the terms of this Agreement require (including A) the making or accuracy of any such requirement that is to be determined on a Pro Forma Basis) representations and warranties (iother than in connection with any acquisition or similar Investment, the Specified Representations as related thereto), (B) compliance with any financial ratio or test Financial Incurrence Test (including including, without limitation, Section 6.12 or 6.136.13(a) hereof, any Consolidated Fixed Charge Coverage Total Debt to Tangible Net Worth Ratio test or any Consolidated Total Senior Debt to Tangible Net Leverage Worth Ratio test) ), and/or any cap Basket expressed as a percentage of Consolidated EBITDA or otherwise determined by reference to a financial metric (including by reference to the CNI Growth Amount)Total Assets, (ii) the accuracy of any representation or warranty or (iiiC) the absence of any a Default or Event of Default (or any type of Default or Event of Default), (D) compliance with, or determination of availability under, any Basket (including any categories (or subcategories) or items (or sub-items) under Section 2.22, 6.01, 6.02, 6.04, 6.06, 6.07 or 6.09 or any applicable defined terms used in each caseany of the foregoing, including any measured as a condition to the consummation ofpercentage of Consolidated Total Assets) or (E) compliance with, or for purposes of determining permissibility under this Agreement satisfaction of, any Limited Conditionality Transaction (orother condition or requirement, in each case, in connection with any assumption Limited Condition Transactions (or any actions and transactions in connection with any Limited Condition Transaction (including the incurrence of any Indebtedness in connection therewith(and related Liens) pursuant to Sections 2.22 and 6.01)) and any actions or transactions related thereto, including under any Incremental Facility Agreement, or any other transaction relating thereto), the determination of whether the relevant condition is conditions or requirement described in subclauses (A) through (E) above (the “LCT Requirements”) are satisfied or such Limited Conditionality Transaction (and any related transaction) is permitted under this Agreement complied with may be made, at the election of the Borrower (an “LCT Election”), on the date (the “LCT Test Date”) the definitive agreements for such Limited Condition Transaction is entered into (or, if applicable, the date of delivery of irrevocable notice (which may be conditional or subject to deferral) with respect to Indebtedness or declaration of a Restricted Payment).
(ii) If, after giving effect to the Limited Condition Transaction (any related actions and transactions, including the incurrence of any Indebtedness (and related Liens) pursuant to Sections 2.22 and 6.01 and the use of proceeds thereof and related Subject Transactions) and any related pro forma adjustments on a Pro Forma Basis, the Borrower or any of its Restricted Subsidiaries would have been permitted to take such actions or consummate such Limited Condition Transaction (and all related actions and transactions) on the relevant LCT Test Date in compliance with any applicable LCT Requirements, all applicable LCT Requirements shall be deemed to have been complied with (or satisfied) for all purposes and the Borrower and its Restricted Subsidiaries may consummate such Limited Condition Transaction and take or consummate all related actions and transactions at any time subsequent to the LCT Test Date regardless of whether any LCT Requirement determined or tested as of the LCT Test Date would at any time subsequent to such LCT Test Date fail to be complied with or satisfied for any reason whatsoever (including due to the occurrence or existence of any event, fact or circumstance), and no Default or Event of Default shall be deemed to have occurred as a result of the consummation of such Limited Condition Transaction and taking or consummation of all related actions and transactions.
(iii) If internal financial statements of the Borrower of the type described in Section 5.01(a) or Section 5.01(b), as applicable, are available (as determined in good faith by the Borrower) or such financial statements have been delivered pursuant to Section 5.01(a) or Section 5.01(b), as applicable, (1a) the Borrower may elect, in the case of any Acquisition its sole discretion, to re-determine compliance with, or other Investmentsatisfaction of, at the time of (or all applicable LCT Requirements on the basis of such financial statements, in which case, such date of re-determination shall thereafter be deemed to be the financial statements applicable LCT Test Date for purposes of such ratios, tests or baskets, and (b) except as contemplated in the most recently ended foregoing clause (a), compliance with such ratios, tests or baskets (and any related requirements and conditions) shall not be determined or tested at any time after the applicable LCT Test Period at Date.
(iv) In calculating the time ofavailability under any ratio, test, basket, cap or threshold in connection with any action or transaction unrelated to such Limited Condition Transaction (including any other Limited Condition Transaction and related actions and transactions) either (x) following the execution relevant LCT 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 with respect to agreement, the notice redemption, purchase or repayment or the declaration for such Acquisition Limited Condition Transaction is terminated, expires, passes or Investment (oris revoked, in the case of any Acquisition or Investment made pursuant to a tender or similar offeras applicable, at the time of the commencement of such offer) or (y) the without consummation of such Acquisition Limited Condition Transaction, any such ratio, test, basket, cap or Investment, (2) in the case of any Disposition, at the time of (threshold shall be determined 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 tested giving pro forma effect to such Disposition or Limited Condition Transaction (y) the consummation of such Disposition and (3) in the case of any Restricted Debt Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Debt Payment or (y) the making of such Restricted Debt Payment, in each case, after giving effect on a Pro Forma Basis to (I) the relevant Acquisition, Investment, Disposition and/or Restricted Debt Payment related actions and (II) at the election of the Borrower, to the extent a definitive agreement with respect to such other Acquisition or Investment has been executed (or, in the case of any Acquisition or Investment made pursuant to a tender or similar offer, to the extent such offer has been commenced) or irrevocable notice with respect to such other Restricted Debt Payment has been delivered (which Acquisition, Investment or Restricted Debt Payment has not yet been consummated and with respect to which such definitive agreement, tender or similar offer or notice has not terminated or been revoked without the consummation thereoftransactions), any other Acquisition, Investment or Restricted Debt Payment (and/or any related incurrence or prepayment Indebtedness (including the intended use of proceeds thereof) and any other transactions relating thereto) that the Borrower has elected to be tested as set forth in this paragraph. For the avoidance of doubt, this Section 1.08 shall not apply to any extensions of credit under the Revolving Commitment, which such extensions of credit shall be subject to the satisfaction or waiver of the conditions set forth in Section 4.02 on the date of any such extension of credit as set forth therein.
(bc) For purposes of determining the permissibility of any action, change, transaction or event that requires a calculation of any financial ratioratio or test (including, test or metric (including without limitation, Section 6.12 or 6.136.13(a) hereof, any Consolidated Fixed Charge Coverage Total Debt to Tangible Net Worth Ratio test or test, any Consolidated Total Senior Debt to Tangible Net Leverage Worth Ratio test and/or the amount of Consolidated Net Income (including for purposes of the CNI Growth Amount) and Consolidated EBITDATotal Assets), such financial ratio, ratio or test or metric shall be calculated at the time such action is takentaken (subject to clause (b) above), such change is made, such transaction is consummated or such event occurs, as the case may be (or, in each case, such other time as is applicable thereto pursuant to paragraph (a) above)be, and no Default or Event of Default shall occur or be deemed to have occurred solely as a result of a subsequent change in such financial ratio or testtest occurring after such calculation.
(cd) Notwithstanding anything in this Agreement or any Loan Document to the contrary hereincontrary, in calculating any Non-Fixed Basket any (x) Indebtedness incurred to fund original issue discount and/or upfront fees with respect to Indebtedness incurred under an applicable Non-Fixed Basket or in a concurrent transaction, a single transaction or a series of related transactions with the amount incurred, or transaction entered into or consummated, under an applicable Non-Fixed Basket and (y) any amounts incurred incurred, or transactions entered into (or consummated) , in reliance on a provision of this Agreement that does not require compliance with a financial ratio Fixed Basket (including Section 6.12 the Free and Clear Incremental Amount) in a concurrent transaction, a single transaction or 6.13a series of related transactions with the amount incurred, any Consolidated Fixed Charge Coverage Ratio test or any Consolidated Total Net Leverage Ratio test) (any such amounts, the “Fixed Amounts”) substantially concurrently with any amounts incurred or transactions transaction entered into (or consummated, under an applicable Non-Fixed Basket, in each case of the foregoing clauses (x) in reliance on a provision of this Agreement that requires compliance with a financial ratio and (including Section 6.12 or 6.13, any Consolidated Fixed Charge Coverage Ratio test or any Consolidated Total Net Leverage Ratio test) (any such amounts, the “Incurrence-Based Amounts”y), it is understood and agreed that the Fixed Amounts (even if part of the same transaction or, in the case of Indebtedness, the same tranche, as any Incurrence-Based Amounts) shall be disregarded in the calculation of the such Non-Fixed Basket. For all purposes hereunder, (i) “Fixed Basket” shall mean any Basket that is subject to a fixed-dollar limit (including Baskets based on a percentage of Consolidated Total Assets), (ii) “Non-Fixed Basket” shall mean any Basket that is subject to compliance with a financial ratio applicable or test (including, without limitation, the Financial Covenants, the Senior Debt to Tangible Net Worth Ratio and the Total Debt to Tangible Net Worth Ratio) (any such ratio or test, a “Financial Incurrence Test”) and (iii) “Basket” means any amount, threshold, exception or value (including by reference to the Incurrence-Based AmountsSenior Debt to Tangible Net Worth Ratio, but giving full pro forma effect the Total Debt to Tangible Net Worth Ratio or Consolidated Total Assets) permitted or prescribed with respect to any increase in the amount of Consolidated EBITDA or Unrestricted Cash resulting from the reliance on the Fixed Amounts. It is further agreed that, in connection with the calculation of any financial ratio applicable to any incurrence or assumption of Indebtedness in reliance on the Incurrence-Based Amounts, such calculation shall be made on a Pro Forma Basis for the incurrence or assumption of such Indebtedness (including any Acquisition Incremental Facility, Incremental Term Loan or Investment consummated concurrently therewith and any other application of the proceeds thereofIncremental Equivalent Debt), but without netting the cash proceeds of such Indebtedness, and in the case of any such Indebtedness constituting revolving Indebtedness or delayed draw Indebtedness, assuming that such Indebtedness is fully drawn.
(d) It is understood and agreed that any Indebtedness, Lien, Investment, Disposition, Restricted Payment, Restricted Debt Payment or Affiliate transaction need not be permitted solely by reference to one clause or subclause of Section 6.01Payment, 6.02, 6.04, 6.05, 6.07 or 6.08, respectively (or one clause or subclause of any related definitions, including Available Amount), but may instead be permitted in part under any combination of clauses or subclauses of such Section (or such related definition), all as classified or reclassified (in the case of any reclassification to a “ratio-based” basket, only to the extent such alternative classification would have been permitted at the time of the relevant action) by the Borrower in its sole discretion at any time and from time to time, and shall constitute a usage of any availability under such clause or subclause only to the extent so classified or reclassified thereto; provided that the credit facilities established hereunder may only be permitted under Section 6.01(a) and secured by Liens permitted pursuant to Section 6.02(a). In addition, for purposes of determining compliance at any time with Section 6.01, 6.04 or 6.07 (and for purposes of any related definitions), the Borrower may, at any time and from time to time in its sole discretion, reclassify (or deem such reclassification to have occurred automatically), any IndebtednessBurdensome Agreement, Investment, Restricted Payment Disposition, Affiliate transaction or Restricted Debt Payment (any transaction, action, judgment or a portion thereof), as applicable, that was previously incurred, made or otherwise undertaken amount under any basket provision in this Agreement or prong as having been incurred, made or otherwise undertaken under any applicable “ratio-based” basket or prong set forth in such Section (or such related definition) if such item (or such portion thereof) would, using the figures as of the end of or for any Test Period ended after the date of such incurrence, making or undertaking, be permitted under the applicable “ratio-based” basket or prong; provided that, in the case of Sections 6.01 and 6.02, any such reclassification shall be subject to the limitations set forth in the proviso to the immediately preceding sentence. For the avoidance of doubt, any amount so classified or reclassified to any applicable “ratio-based” basket or prong shall be disregarded, and shall be deemed not to be outstanding, for purposes of determining availability under any other applicable exception in such Section (and for purposes of any related definitions) that does not require compliance with a ratioLoan Document.
(e) For purposes of determining compliance with this Agreement, (i) the outstanding principal amount of any Indebtedness issued at a price that is less than the principal amount thereof shall be equal, as of any date of determination, to the principal amount thereof that would appear on a consolidated balance sheet of the Borrower as of such date prepared in accordance with GAAP and (ii) the accrual of interest, the accrual of dividends, the accretion of accreted value, the amortization of original issue discount, the payment of interest or a dividend in the form of additional Indebtedness or additional shares of Equity Interests and/or any increase in the amount of Indebtedness outstanding solely as a result of any fluctuation in the exchange rate of any applicable currency shall not be deemed to be an incurrence of Indebtedness and, to the extent secured, shall not be deemed to result in an increase of the obligations so secured or to be a grant of a Lien securing any such obligations.
Appears in 1 contract
Sources: Term Loan Credit Agreement
Certain Calculations and Tests. (a) Notwithstanding anything to the contrary herein, but subject to Sections 1.06(b) and (c), all financial ratios and tests (including the Leverage Ratio, the Interest Coverage Ratio and the amount of Consolidated EBITDA) contained in this Agreement that are calculated with respect to any Test Period shall be calculated with respect to such Test Period on a Pro Forma basis.
(b) Notwithstanding anything to the contrary herein (including in connection with any calculation made on a Pro Forma basis), to the extent that the terms of this Agreement require (including any such requirement that is to be determined on a Pro Forma Basis) (i) compliance with any financial ratio or test (including including, without limitation, Section 6.12 or 6.137.01, Section 7.02, any Consolidated Fixed Charge Coverage Leverage Ratio test or and/or any Consolidated Total Net Leverage Interest Coverage Ratio test) and/or any cap expressed as a percentage of Consolidated EBITDA or otherwise determined by reference to a financial metric (including by reference to the CNI Growth Amount), (ii) the accuracy of any representation or warranty or (iii) the absence of any a Default or Event of Default (or any type of Default or Event of Default), ) or the making of representations and warranties by each Loan Party as set forth in each case, the Loan Documents as a condition conditions to the consummation of, or for purposes of determining permissibility under this Agreement of, any Limited Conditionality Transaction (or, in each case, any assumption or incurrence of any Indebtedness in connection therewith, including under any Incremental Facility Agreement, with an acquisition or any other transaction relating thereto)similar investment, the determination of whether the relevant condition is satisfied or such Limited Conditionality Transaction (and any related transaction) is permitted under this Agreement may be made, at the election (any such election, a “Testing Election”) of the Borrower, (1) in the case of any Acquisition or other Investment, Borrower 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 such Acquisition acquisition or Investment (or, in the case of any Acquisition or Investment made pursuant to a tender or similar offer, at the time of the commencement of such offer) investment or (y) the consummation of such Acquisition acquisition or Investment, (2) in the case of any Disposition, 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 such Disposition or (y) the consummation of such Disposition and (3) in the case of any Restricted Debt Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Debt Payment or (y) the making of such Restricted Debt Payment, in each case, investment after giving effect to the relevant acquisition or investment on a Pro Forma Basis to (I) the relevant Acquisition, Investment, Disposition and/or Restricted Debt Payment and (II) at the election of the Borrower, to the extent a definitive agreement with respect to such other Acquisition or Investment has been executed (or, in the case of any Acquisition or Investment made pursuant to a tender or similar offer, to the extent such offer has been commenced) or irrevocable notice with respect to such other Restricted Debt Payment has been delivered (which Acquisition, Investment or Restricted Debt Payment has not yet been consummated and with respect to which such definitive agreement, tender or similar offer or notice has not terminated or been revoked without the consummation thereof), any other Acquisition, Investment or Restricted Debt Payment (and/or any related incurrence or prepayment Indebtedness (including the intended use of proceeds thereof) and any other transactions relating thereto) that the Borrower has elected to be tested as set forth in this paragraph. For the avoidance of doubt, this Section 1.08 shall not apply to any extensions of credit under the Revolving Commitment, which such extensions of credit shall be subject to the satisfaction or waiver of the conditions set forth in Section 4.02 on the date of any such extension of credit as set forth thereinbasis.
(bc) For purposes of determining the permissibility of any action, change, transaction or event that requires a calculation of any financial ratioratio or test (including, test or metric (including without limitation, Section 6.12 or 6.137.01, Section 7.02 , any Consolidated Fixed Charge Leverage Ratio test, any Interest Coverage Ratio test or any Consolidated Total Net Leverage Ratio test and/or the amount of Consolidated Net Income (including for purposes of the CNI Growth Amount) and Consolidated EBITDA), such financial ratio, ratio or test or metric shall be calculated at the time such action is taken (subject to clause (b) above), such change is made, such transaction is consummated or such event occurs, as the case may be, and no Default or Event of Default shall be deemed to have occurred solely as a result of a change in such financial ratio or test occurring after the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be (or, in each case, such other time as is applicable thereto pursuant to paragraph (a) above), and no Default or Event of Default shall be deemed to have occurred solely as a result of a subsequent change in such financial ratio or testbe.
(c) Notwithstanding anything to the contrary herein, with respect to any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that does not require compliance with a financial ratio (including Section 6.12 or 6.13, any Consolidated Fixed Charge Coverage Ratio test or any Consolidated Total Net Leverage Ratio test) (any such amounts, the “Fixed Amounts”) substantially concurrently with any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that requires compliance with a financial ratio (including Section 6.12 or 6.13, any Consolidated Fixed Charge Coverage Ratio test or any Consolidated Total Net Leverage Ratio test) (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that the Fixed Amounts (even if part of the same transaction or, in the case of Indebtedness, the same tranche, as any Incurrence-Based Amounts) shall be disregarded in the calculation of the financial ratio applicable to the Incurrence-Based Amounts, but giving full pro forma effect to any increase in the amount of Consolidated EBITDA or Unrestricted Cash resulting from the reliance on the Fixed Amounts. It is further agreed that, in connection with the calculation of any financial ratio applicable to any incurrence or assumption of Indebtedness in reliance on the Incurrence-Based Amounts, such calculation shall be made on a Pro Forma Basis for the incurrence or assumption of such Indebtedness (including any Acquisition or Investment consummated concurrently therewith and any other application of the proceeds thereof), but without netting the cash proceeds of such Indebtedness, and in the case of any such Indebtedness constituting revolving Indebtedness or delayed draw Indebtedness, assuming that such Indebtedness is fully drawn.
(d) It is understood and agreed that any Indebtedness, Lien, Investment, Disposition, Restricted Payment, Restricted Debt Payment or Affiliate transaction need not be permitted solely by reference to one clause or subclause of Section 6.01, 6.02, 6.04, 6.05, 6.07 or 6.08, respectively (or one clause or subclause of any related definitions, including Available Amount), but may instead be permitted in part under any combination of clauses or subclauses of such Section (or such related definition), all as classified or reclassified (in the case of any reclassification to a “ratio-based” basket, only to the extent such alternative classification would have been permitted at the time of the relevant action) by the Borrower in its sole discretion at any time and from time to time, and shall constitute a usage of any availability under such clause or subclause only to the extent so classified or reclassified thereto; provided that the credit facilities established hereunder may only be permitted under Section 6.01(a) and secured by Liens permitted pursuant to Section 6.02(a). In addition, for purposes of determining compliance at any time with Section 6.01, 6.04 or 6.07 (and for purposes of any related definitions), the Borrower may, at any time and from time to time in its sole discretion, reclassify (or deem such reclassification to have occurred automatically), any Indebtedness, Investment, Restricted Payment or Restricted Debt Payment (or a portion thereof), as applicable, that was previously incurred, made or otherwise undertaken under any basket or prong as having been incurred, made or otherwise undertaken under any applicable “ratio-based” basket or prong set forth in such Section (or such related definition) if such item (or such portion thereof) would, using the figures as of the end of or for any Test Period ended after the date of such incurrence, making or undertaking, be permitted under the applicable “ratio-based” basket or prong; provided that, in the case of Sections 6.01 and 6.02, any such reclassification shall be subject to the limitations set forth in the proviso to the immediately preceding sentence. For the avoidance of doubt, any amount so classified or reclassified to any applicable “ratio-based” basket or prong shall be disregarded, and shall be deemed not to be outstanding, for purposes of determining availability under any other applicable exception in such Section (and for purposes of any related definitions) that does not require compliance with a ratio.
(e) For purposes of determining compliance with this Agreement, (i) the outstanding principal amount of any Indebtedness issued at a price that is less than the principal amount thereof shall be equal, as of any date of determination, to the principal amount thereof that would appear on a consolidated balance sheet of the Borrower as of such date prepared in accordance with GAAP and (ii) the accrual of interest, the accrual of dividends, the accretion of accreted value, the amortization of original issue discount, the payment of interest or a dividend in the form of additional Indebtedness or additional shares of Equity Interests and/or any increase in the amount of Indebtedness outstanding solely as a result of any fluctuation in the exchange rate of any applicable currency shall not be deemed to be an incurrence of Indebtedness and, to the extent secured, shall not be deemed to result in an increase of the obligations so secured or to be a grant of a Lien securing any such obligations.
Appears in 1 contract
Sources: Credit Agreement (IHS Markit Ltd.)
Certain Calculations and Tests. (a) Notwithstanding anything to the contrary herein, but subject to Sections 1.06(b) and (c), all financial ratios and tests (including the Leverage Ratio, the Interest Coverage Ratio, the Aggregation Test and the amount of Consolidated EBITDA) contained in this Agreement that are calculated with respect to any Test Period shall be calculated with respect to such Test Period on a Pro Forma basis.
(b) Notwithstanding anything to the contrary herein (including in connection with any calculation made on a Pro Forma basis), to the extent that the terms of this Agreement require (including any such requirement that is to be determined on a Pro Forma Basis) (i) compliance with any financial ratio or test (including including, without limitation, Section 6.12 or 6.137.01, Section 7.02 and Section 5.09(a), any Consolidated Fixed Charge Leverage Ratio test, Aggregation Test and/or any Interest Coverage Ratio test or any Consolidated Total Net Leverage Ratio test) and/or any cap expressed as a percentage of Consolidated EBITDA or otherwise determined by reference to a financial metric (including by reference to the CNI Growth Amount), (ii) the accuracy of any representation or warranty or (iii) the absence of any a Default or Event of Default (or any type of Default or Event of Default), ) or the making of representations and warranties by each Loan Party as set forth in each case, the Loan Documents as a condition conditions to (A) the making of any acquisition or similar Investment or the consummation of, or for purposes of determining permissibility under this Agreement of, any Limited Conditionality Transaction transaction in connection therewith (or, in each case, any including the assumption or incurrence of Indebtedness) and/or (B) the making of any Indebtedness in connection therewith, including under any Incremental Facility Agreement, or any other transaction relating thereto)Restricted Payment, the determination of whether the relevant condition is satisfied or such Limited Conditionality Transaction (and any related transaction) is permitted under this Agreement may be made, at the election (any such election, a “Testing Election”) of the Borrower, (1) in the case of any Acquisition acquisition or other similar Investment, 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 such Acquisition acquisition or Investment (or, in the case of any Acquisition or Investment made pursuant to a tender or similar offer, at the time of the commencement of such offer) or (y) the consummation of such Acquisition acquisition or Investment, (2) in the case of any Disposition, 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 such Disposition or (y) the consummation of such Disposition 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 the declaration of irrevocable (which may be conditional) notice with respect to such Restricted Debt Payment or (y) the making of such Restricted Debt Payment, in each case, Payment after giving effect to the relevant acquisition and/or Restricted Payment on a Pro Forma Basis to (I) the relevant Acquisition, Investment, Disposition and/or Restricted Debt Payment and (II) at the election of the Borrower, to the extent a definitive agreement with respect to such other Acquisition or Investment has been executed (or, in the case of any Acquisition or Investment made pursuant to a tender or similar offer, to the extent such offer has been commenced) or irrevocable notice with respect to such other Restricted Debt Payment has been delivered (which Acquisition, Investment or Restricted Debt Payment has not yet been consummated and with respect to which such definitive agreement, tender or similar offer or notice has not terminated or been revoked without the consummation thereof), any other Acquisition, Investment or Restricted Debt Payment (and/or any related incurrence or prepayment Indebtedness (including the intended use of proceeds thereof) and any other transactions relating thereto) that the Borrower has elected to be tested as set forth in this paragraph. For the avoidance of doubt, this Section 1.08 shall not apply to any extensions of credit under the Revolving Commitment, which such extensions of credit shall be subject to the satisfaction or waiver of the conditions set forth in Section 4.02 on the date of any such extension of credit as set forth thereinbasis.
(bc) For purposes of determining the permissibility of any action, change, transaction or event that requires a calculation of any financial ratioratio or test (including, test or metric (including without limitation, Section 6.12 or 6.137.01, Section 7.02 and Section 5.09(a), any Consolidated Fixed Charge Leverage Ratio test, any Interest Coverage Ratio test or test, any Consolidated Total Net Leverage Ratio test Aggregation Test and/or the amount of Consolidated Net Income (including for purposes of the CNI Growth Amount) and Consolidated EBITDA), such financial ratio, ratio or test or metric shall be calculated at the time such action is taken (subject to clause (b) above), such change is made, such transaction is consummated or such event occurs, as the case may be, and no Default or Event of Default shall be deemed to have occurred solely as a result of a change in such financial ratio or test occurring after the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be (or, in each case, such other time as is applicable thereto pursuant to paragraph (a) above), and no Default or Event of Default shall be deemed to have occurred solely as a result of a subsequent change in such financial ratio or testbe.
(c) Notwithstanding anything to the contrary herein, with respect to any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that does not require compliance with a financial ratio (including Section 6.12 or 6.13, any Consolidated Fixed Charge Coverage Ratio test or any Consolidated Total Net Leverage Ratio test) (any such amounts, the “Fixed Amounts”) substantially concurrently with any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that requires compliance with a financial ratio (including Section 6.12 or 6.13, any Consolidated Fixed Charge Coverage Ratio test or any Consolidated Total Net Leverage Ratio test) (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that the Fixed Amounts (even if part of the same transaction or, in the case of Indebtedness, the same tranche, as any Incurrence-Based Amounts) shall be disregarded in the calculation of the financial ratio applicable to the Incurrence-Based Amounts, but giving full pro forma effect to any increase in the amount of Consolidated EBITDA or Unrestricted Cash resulting from the reliance on the Fixed Amounts. It is further agreed that, in connection with the calculation of any financial ratio applicable to any incurrence or assumption of Indebtedness in reliance on the Incurrence-Based Amounts, such calculation shall be made on a Pro Forma Basis for the incurrence or assumption of such Indebtedness (including any Acquisition or Investment consummated concurrently therewith and any other application of the proceeds thereof), but without netting the cash proceeds of such Indebtedness, and in the case of any such Indebtedness constituting revolving Indebtedness or delayed draw Indebtedness, assuming that such Indebtedness is fully drawn.
(d) It is understood and agreed that any Indebtedness, Lien, Investment, Disposition, Restricted Payment, Restricted Debt Payment or Affiliate transaction need not be permitted solely by reference to one clause or subclause of Section 6.01, 6.02, 6.04, 6.05, 6.07 or 6.08, respectively (or one clause or subclause of any related definitions, including Available Amount), but may instead be permitted in part under any combination of clauses or subclauses of such Section (or such related definition), all as classified or reclassified (in the case of any reclassification to a “ratio-based” basket, only to the extent such alternative classification would have been permitted at the time of the relevant action) by the Borrower in its sole discretion at any time and from time to time, and shall constitute a usage of any availability under such clause or subclause only to the extent so classified or reclassified thereto; provided that the credit facilities established hereunder may only be permitted under Section 6.01(a) and secured by Liens permitted pursuant to Section 6.02(a). In addition, for purposes of determining compliance at any time with Section 6.01, 6.04 or 6.07 (and for purposes of any related definitions), the Borrower may, at any time and from time to time in its sole discretion, reclassify (or deem such reclassification to have occurred automatically), any Indebtedness, Investment, Restricted Payment or Restricted Debt Payment (or a portion thereof), as applicable, that was previously incurred, made or otherwise undertaken under any basket or prong as having been incurred, made or otherwise undertaken under any applicable “ratio-based” basket or prong set forth in such Section (or such related definition) if such item (or such portion thereof) would, using the figures as of the end of or for any Test Period ended after the date of such incurrence, making or undertaking, be permitted under the applicable “ratio-based” basket or prong; provided that, in the case of Sections 6.01 and 6.02, any such reclassification shall be subject to the limitations set forth in the proviso to the immediately preceding sentence. For the avoidance of doubt, any amount so classified or reclassified to any applicable “ratio-based” basket or prong shall be disregarded, and shall be deemed not to be outstanding, for purposes of determining availability under any other applicable exception in such Section (and for purposes of any related definitions) that does not require compliance with a ratio.
(e) For purposes of determining compliance with this Agreement, (i) the outstanding principal amount of any Indebtedness issued at a price that is less than the principal amount thereof shall be equal, as of any date of determination, to the principal amount thereof that would appear on a consolidated balance sheet of the Borrower as of such date prepared in accordance with GAAP and (ii) the accrual of interest, the accrual of dividends, the accretion of accreted value, the amortization of original issue discount, the payment of interest or a dividend in the form of additional Indebtedness or additional shares of Equity Interests and/or any increase in the amount of Indebtedness outstanding solely as a result of any fluctuation in the exchange rate of any applicable currency shall not be deemed to be an incurrence of Indebtedness and, to the extent secured, shall not be deemed to result in an increase of the obligations so secured or to be a grant of a Lien securing any such obligations.
Appears in 1 contract
Sources: Credit Agreement (IHS Markit Ltd.)
Certain Calculations and Tests. (a) Notwithstanding anything to the contrary herein, but subject to this Section 1.10, all financial ratios and tests (including the Total Debt to Total Assets Ratio, the Senior Debt to Total Assets Ratio and the amount of Consolidated Total Assets and the component definitions of any of the foregoing) contained in this Agreement shall be calculated with respect to any applicable Test Period to give effect to all Subject Transactions on a Pro Forma Basis that occurred on or after the first day of such Test Period and on or prior to the date of any required calculation of any financial ratio or test (which may be after the end of such Test Period); provided, that solely for purposes of calculating quarterly compliance with Section 6.13(a), no Subject Transaction occurring after the last day of the Test Period shall be taken into account or given pro forma effect.
(b) With respect to any Limited Condition Transaction, notwithstanding anything to the contrary in this Agreement:
(i) To the extent that the terms of this Agreement require (including A) the making or accuracy of any such requirement that is to be determined on a Pro Forma Basis) representations and warranties (iother than in connection with any acquisition or similar Investment, the Specified Representations as related thereto), (B) compliance with any financial ratio or test Financial Incurrence Test (including including, without limitation, Section 6.12 or 6.136.13(a) hereof, any Consolidated Fixed Charge Coverage Total Debt to Total Assets Ratio test or any Consolidated Total Net Leverage Senior Debt to Totals Assets Ratio test) ), and/or any cap Basket expressed as a percentage of Consolidated EBITDA or otherwise determined by reference to a financial metric (including by reference to the CNI Growth Amount)Total Assets, (ii) the accuracy of any representation or warranty or (iiiC) the absence of any a Default or Event of Default (or any type of Default or Event of Default), (D) compliance with, or determination of availability under, any Basket (including any categories (or subcategories) or items (or sub-items) under Section 2.22, 6.01, 6.02, 6.04, 6.06, 6.07 or 6.09 or any applicable defined terms used in each caseany of the foregoing, including any measured as a condition to the consummation ofpercentage of Consolidated Total Assets) or (E) compliance with, or for purposes of determining permissibility under this Agreement satisfaction of, any Limited Conditionality Transaction (orother condition or requirement, in each case, in connection with any assumption Limited Condition Transactions (or any actions and transactions in connection with any Limited Condition Transaction (including the incurrence of any Indebtedness in connection therewith(and related Liens) pursuant to Sections 2.22 and 6.01)) and any actions or transactions related thereto, including under any Incremental Facility Agreement, or any other transaction relating thereto), the determination of whether the relevant condition is conditions or requirement described in subclauses (A) through (E) above (the “LCT Requirements”) are satisfied or such Limited Conditionality Transaction (and any related transaction) is permitted under this Agreement complied with may be made, at the election of the Borrower (an “LCT Election”), on the date (the “LCT Test Date”) the definitive agreements for such Limited Condition Transaction is entered into (or, if applicable, the date of delivery of irrevocable notice (which may be conditional or subject to deferral) with respect to Indebtedness or declaration of a Restricted Payment).
(ii) If, after giving effect to the Limited Condition Transaction (any related actions and transactions, including the incurrence of any Indebtedness (and related Liens) pursuant to Sections 2.22 and 6.01 and the use of proceeds thereof and related Subject Transactions) and any related pro forma adjustments on a Pro Forma Basis, Opco or any of its Restricted Subsidiaries would have been permitted to take such actions or consummate such Limited Condition Transaction (and all related actions and transactions) on the relevant LCT Test Date in compliance with any applicable LCT Requirements, all applicable LCT Requirements shall be deemed to have been complied with (or satisfied) for all purposes and Opco and its Restricted Subsidiaries may consummate such Limited Condition Transaction and take or consummate all related actions and transactions at any time subsequent to the LCT Test Date regardless of whether any LCT Requirement determined or tested as of the LCT Test Date would at any time subsequent to such LCT Test Date fail to be complied with or satisfied for any reason whatsoever (including due to the occurrence or existence of any event, fact or circumstance), and no Default or Event of Default shall be deemed to have occurred as a result of the consummation of such Limited Condition Transaction and taking or consummation of all related actions and transactions.
(iii) If internal financial statements of Parent of the type described in Section 5.01(a) or Section 5.01(b), as applicable, are available (as determined in good faith by the Borrower) or such financial statements have been delivered pursuant to Section 5.01(a) or Section 5.01(b), as applicable, (1a) the Borrower may elect, in the case of any Acquisition its sole discretion, to re-determine compliance with, or other Investmentsatisfaction of, at the time of (or all applicable LCT Requirements on the basis of such financial statements, in which case, such date of re-determination shall thereafter be deemed to be the financial statements applicable LCT Test Date for purposes of such ratios, tests or baskets, and (b) except as contemplated in the most recently ended foregoing clause (a), compliance with such ratios, tests or baskets (and any related requirements and conditions) shall not be determined or tested at any time after the applicable LCT Test Period at Date.
(iv) In calculating the time ofavailability under any ratio, test, basket, cap or threshold in connection with any action or transaction unrelated to such Limited Condition Transaction (including any other Limited Condition Transaction and related actions and transactions) either (x) following the execution relevant LCT 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 with respect to agreement, the notice redemption, purchase or repayment or the declaration for such Acquisition Limited Condition Transaction is terminated, expires, passes or Investment (oris revoked, in the case of any Acquisition or Investment made pursuant to a tender or similar offeras applicable, at the time of the commencement of such offer) or (y) the without consummation of such Acquisition Limited Condition Transaction, any such ratio, test, basket, cap or Investment, (2) in the case of any Disposition, at the time of (threshold shall be determined 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 tested giving pro forma effect to such Disposition or Limited Condition Transaction (y) the consummation of such Disposition and (3) in the case of any Restricted Debt Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Debt Payment or (y) the making of such Restricted Debt Payment, in each case, after giving effect on a Pro Forma Basis to (I) the relevant Acquisition, Investment, Disposition and/or Restricted Debt Payment related actions and (II) at the election of the Borrower, to the extent a definitive agreement with respect to such other Acquisition or Investment has been executed (or, in the case of any Acquisition or Investment made pursuant to a tender or similar offer, to the extent such offer has been commenced) or irrevocable notice with respect to such other Restricted Debt Payment has been delivered (which Acquisition, Investment or Restricted Debt Payment has not yet been consummated and with respect to which such definitive agreement, tender or similar offer or notice has not terminated or been revoked without the consummation thereoftransactions), any other Acquisition, Investment or Restricted Debt Payment (and/or any related incurrence or prepayment Indebtedness (including the intended use of proceeds thereof) and any other transactions relating thereto) that the Borrower has elected to be tested as set forth in this paragraph. For the avoidance of doubt, this Section 1.08 shall not apply to any extensions of credit under the Revolving Commitment, which such extensions of credit shall be subject to the satisfaction or waiver of the conditions set forth in Section 4.02 on the date of any such extension of credit as set forth therein.
(bc) For purposes of determining the permissibility of any action, change, transaction or event that requires a calculation of any financial ratioratio or test (including, test or metric (including without limitation, Section 6.12 or 6.136.13(a) hereof, any Consolidated Fixed Charge Coverage Total Debt to Total Assets Ratio test or test, any Consolidated Senior Debt to Total Net Leverage Assets Ratio test and/or the amount of Consolidated Net Income (including for purposes of the CNI Growth Amount) and Consolidated EBITDATotal Assets), such financial ratio, ratio or test or metric shall be calculated at the time such action is takentaken (subject to clause (b) above), such change is made, such transaction is consummated or such event occurs, as the case may be (or, in each case, such other time as is applicable thereto pursuant to paragraph (a) above)be, and no Default or Event of Default shall occur or be deemed to have occurred solely as a result of a subsequent change in such financial ratio or testtest occurring after such calculation.
(cd) Notwithstanding anything in this Agreement or any Loan Document to the contrary hereincontrary, in calculating any Non-Fixed Basket any (x) Indebtedness incurred to fund original issue discount and/or upfront fees with respect to Indebtedness incurred under an applicable Non-Fixed Basket or in a concurrent transaction, a single transaction or a series of related transactions with the amount incurred, or transaction entered into or consummated, under an applicable Non-Fixed Basket and (y) any amounts incurred incurred, or transactions entered into (or consummated) , in reliance on a provision of this Agreement that does not require compliance with a financial ratio Fixed Basket (including Section 6.12 the Free and Clear Incremental Amount) in a concurrent transaction, a single transaction or 6.13a series of related transactions with the amount incurred, any Consolidated Fixed Charge Coverage Ratio test or any Consolidated Total Net Leverage Ratio test) (any such amounts, the “Fixed Amounts”) substantially concurrently with any amounts incurred or transactions transaction entered into (or consummated, under an applicable Non-Fixed Basket, in each case of the foregoing clauses (x) in reliance on a provision of this Agreement that requires compliance with a financial ratio and (including Section 6.12 or 6.13, any Consolidated Fixed Charge Coverage Ratio test or any Consolidated Total Net Leverage Ratio test) (any such amounts, the “Incurrence-Based Amounts”y), it is understood and agreed that the Fixed Amounts (even if part of the same transaction or, in the case of Indebtedness, the same tranche, as any Incurrence-Based Amounts) shall be disregarded in the calculation of the such Non-Fixed Basket. For all purposes hereunder, (i) “Fixed Basket” shall mean any Basket that is subject to a fixed-dollar limit (including Baskets based on a percentage of Consolidated Total Assets), (ii) “Non-Fixed Basket” shall mean any Basket that is subject to compliance with a financial ratio applicable or test (including, without limitation, the Leverage Covenant, the Senior Debt to Total Assets Ratio and the Total Debt to Total Assets Ratio) (any such ratio or test, a “Financial Incurrence Test”) and (iii) “Basket” means any amount, threshold, exception or value (including by reference to the Incurrence-Based AmountsSenior Debt to Total Assets Ratio, but giving full pro forma effect the Total Debt to Total Assets Ratio or Consolidated Total Assets) permitted or prescribed with respect to any increase in the amount of Consolidated EBITDA or Unrestricted Cash resulting from the reliance on the Fixed Amounts. It is further agreed that, in connection with the calculation of any financial ratio applicable to any incurrence or assumption of Indebtedness in reliance on the Incurrence-Based Amounts, such calculation shall be made on a Pro Forma Basis for the incurrence or assumption of such Indebtedness (including any Acquisition Incremental Facility, Incremental Term Loan or Investment consummated concurrently therewith and any other application of the proceeds thereofIncremental Equivalent Debt), but without netting the cash proceeds of such Indebtedness, and in the case of any such Indebtedness constituting revolving Indebtedness or delayed draw Indebtedness, assuming that such Indebtedness is fully drawn.
(d) It is understood and agreed that any Indebtedness, Lien, Investment, Disposition, Restricted Payment, Restricted Debt Payment or Affiliate transaction need not be permitted solely by reference to one clause or subclause of Section 6.01Payment, 6.02, 6.04, 6.05, 6.07 or 6.08, respectively (or one clause or subclause of any related definitions, including Available Amount), but may instead be permitted in part under any combination of clauses or subclauses of such Section (or such related definition), all as classified or reclassified (in the case of any reclassification to a “ratio-based” basket, only to the extent such alternative classification would have been permitted at the time of the relevant action) by the Borrower in its sole discretion at any time and from time to time, and shall constitute a usage of any availability under such clause or subclause only to the extent so classified or reclassified thereto; provided that the credit facilities established hereunder may only be permitted under Section 6.01(a) and secured by Liens permitted pursuant to Section 6.02(a). In addition, for purposes of determining compliance at any time with Section 6.01, 6.04 or 6.07 (and for purposes of any related definitions), the Borrower may, at any time and from time to time in its sole discretion, reclassify (or deem such reclassification to have occurred automatically), any IndebtednessBurdensome Agreement, Investment, Restricted Payment Disposition, Affiliate transaction or Restricted Debt Payment (any transaction, action, judgment or a portion thereof), as applicable, that was previously incurred, made or otherwise undertaken amount under any basket provision in this Agreement or prong as having been incurred, made or otherwise undertaken under any applicable “ratio-based” basket or prong set forth in such Section (or such related definition) if such item (or such portion thereof) would, using the figures as of the end of or for any Test Period ended after the date of such incurrence, making or undertaking, be permitted under the applicable “ratio-based” basket or prong; provided that, in the case of Sections 6.01 and 6.02, any such reclassification shall be subject to the limitations set forth in the proviso to the immediately preceding sentence. For the avoidance of doubt, any amount so classified or reclassified to any applicable “ratio-based” basket or prong shall be disregarded, and shall be deemed not to be outstanding, for purposes of determining availability under any other applicable exception in such Section (and for purposes of any related definitions) that does not require compliance with a ratioLoan Document.
(e) For purposes of determining compliance with this Agreement, (i) the outstanding principal amount of any Indebtedness issued at a price that is less than the principal amount thereof shall be equal, as of any date of determination, to the principal amount thereof that would appear on a consolidated balance sheet of the Borrower as of such date prepared in accordance with GAAP and (ii) the accrual of interest, the accrual of dividends, the accretion of accreted value, the amortization of original issue discount, the payment of interest or a dividend in the form of additional Indebtedness or additional shares of Equity Interests and/or any increase in the amount of Indebtedness outstanding solely as a result of any fluctuation in the exchange rate of any applicable currency shall not be deemed to be an incurrence of Indebtedness and, to the extent secured, shall not be deemed to result in an increase of the obligations so secured or to be a grant of a Lien securing any such obligations.
Appears in 1 contract
Sources: Term Loan Credit Agreement (KKR Real Estate Finance Trust Inc.)
Certain Calculations and Tests. (a) Notwithstanding anything to the contrary herein, but subject to Sections 1.06(b) and (c), all financial ratios and tests (including the Leverage Ratio, the Interest Coverage Ratio, the Aggregation Test and the amount of Consolidated EBITDA) contained in this Agreement that are calculated with respect to any Test Period shall be calculated with respect to such Test Period on a Pro Forma basis.
(b) Notwithstanding anything to the contrary herein (including in connection with any calculation made on a Pro Forma basis), to the extent that the terms of this Agreement require (including any such requirement that is to be determined on a Pro Forma Basis) (i) compliance with any financial ratio or test (including including, without limitation, Section 6.12 or 6.137.01, Section 7.02 and Section 5.09(a), any Consolidated Fixed Charge Leverage Ratio test, Aggregation Test and/or any Interest Coverage Ratio test or any Consolidated Total Net Leverage Ratio test) and/or any cap expressed as a percentage of Consolidated EBITDA or otherwise determined by reference to a financial metric (including by reference to the CNI Growth Amount), (ii) the accuracy of any representation or warranty or (iii) the absence of any a Default or Event of Default (or any type of Default or Event of Default), ) or the making of representations and warranties by each Loan Party as set forth in each case, the Loan Documents as a condition conditions to (A) the making of any acquisition or similar Investment or the consummation of, or for purposes of determining permissibility under this Agreement of, any Limited Conditionality Transaction transaction in connection therewith (or, in each case, any including the assumption or incurrence of Indebtedness) and/or (B) the making of any Indebtedness in connection therewith, including under any Incremental Facility Agreement, or any other transaction relating thereto)Restricted Payment, the determination of whether the relevant condition is satisfied or such Limited Conditionality Transaction (and any related transaction) is permitted under this Agreement may be made, at the election (any such election, a “Testing Election”) of the BorrowerBorrower Representative, (1) in the case of any Acquisition acquisition or other similar Investment, 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 such Acquisition acquisition or Investment (or, in the case of any Acquisition or Investment made pursuant to a tender or similar offer, at the time of the commencement of such offer) or (y) the consummation of such Acquisition acquisition or Investment, (2) in the case of any Disposition, 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 such Disposition or (y) the consummation of such Disposition 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 the declaration of irrevocable (which may be conditional) notice with respect to such Restricted Debt Payment or (y) the making of such Restricted Debt Payment, in each case, Payment after giving effect to the relevant acquisition and/or Restricted Payment on a Pro Forma Basis to (I) the relevant Acquisition, Investment, Disposition and/or Restricted Debt Payment and (II) at the election of the Borrower, to the extent a definitive agreement with respect to such other Acquisition or Investment has been executed (or, in the case of any Acquisition or Investment made pursuant to a tender or similar offer, to the extent such offer has been commenced) or irrevocable notice with respect to such other Restricted Debt Payment has been delivered (which Acquisition, Investment or Restricted Debt Payment has not yet been consummated and with respect to which such definitive agreement, tender or similar offer or notice has not terminated or been revoked without the consummation thereof), any other Acquisition, Investment or Restricted Debt Payment (and/or any related incurrence or prepayment Indebtedness (including the intended use of proceeds thereof) and any other transactions relating thereto) that the Borrower has elected to be tested as set forth in this paragraph. For the avoidance of doubt, this Section 1.08 shall not apply to any extensions of credit under the Revolving Commitment, which such extensions of credit shall be subject to the satisfaction or waiver of the conditions set forth in Section 4.02 on the date of any such extension of credit as set forth thereinbasis.
(bc) For purposes of determining the permissibility of any action, change, transaction or event that requires a calculation of any financial ratioratio or test (including, test or metric (including without limitation, Section 6.12 or 6.137.01, Section 7.02 and Section 5.09(a), any Consolidated Fixed Charge Leverage Ratio test, any Interest Coverage Ratio test or test, any Consolidated Total Net Leverage Ratio test Aggregation Test and/or the amount of Consolidated Net Income (including for purposes of the CNI Growth Amount) and Consolidated EBITDA), such financial ratio, ratio or test or metric shall be calculated at the time such action is taken (subject to clause (b) above), such change is made, such transaction is consummated or such event occurs, as the case may be, and no Default or Event of Default shall be deemed to have occurred solely as a result of a change in such financial ratio or test occurring after the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be (or, in each case, such other time as is applicable thereto pursuant to paragraph (a) above), and no Default or Event of Default shall be deemed to have occurred solely as a result of a subsequent change in such financial ratio or testbe.
(c) Notwithstanding anything to the contrary herein, with respect to any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that does not require compliance with a financial ratio (including Section 6.12 or 6.13, any Consolidated Fixed Charge Coverage Ratio test or any Consolidated Total Net Leverage Ratio test) (any such amounts, the “Fixed Amounts”) substantially concurrently with any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that requires compliance with a financial ratio (including Section 6.12 or 6.13, any Consolidated Fixed Charge Coverage Ratio test or any Consolidated Total Net Leverage Ratio test) (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that the Fixed Amounts (even if part of the same transaction or, in the case of Indebtedness, the same tranche, as any Incurrence-Based Amounts) shall be disregarded in the calculation of the financial ratio applicable to the Incurrence-Based Amounts, but giving full pro forma effect to any increase in the amount of Consolidated EBITDA or Unrestricted Cash resulting from the reliance on the Fixed Amounts. It is further agreed that, in connection with the calculation of any financial ratio applicable to any incurrence or assumption of Indebtedness in reliance on the Incurrence-Based Amounts, such calculation shall be made on a Pro Forma Basis for the incurrence or assumption of such Indebtedness (including any Acquisition or Investment consummated concurrently therewith and any other application of the proceeds thereof), but without netting the cash proceeds of such Indebtedness, and in the case of any such Indebtedness constituting revolving Indebtedness or delayed draw Indebtedness, assuming that such Indebtedness is fully drawn.
(d) It is understood and agreed that any Indebtedness, Lien, Investment, Disposition, Restricted Payment, Restricted Debt Payment or Affiliate transaction need not be permitted solely by reference to one clause or subclause of Section 6.01, 6.02, 6.04, 6.05, 6.07 or 6.08, respectively (or one clause or subclause of any related definitions, including Available Amount), but may instead be permitted in part under any combination of clauses or subclauses of such Section (or such related definition), all as classified or reclassified (in the case of any reclassification to a “ratio-based” basket, only to the extent such alternative classification would have been permitted at the time of the relevant action) by the Borrower in its sole discretion at any time and from time to time, and shall constitute a usage of any availability under such clause or subclause only to the extent so classified or reclassified thereto; provided that the credit facilities established hereunder may only be permitted under Section 6.01(a) and secured by Liens permitted pursuant to Section 6.02(a). In addition, for purposes of determining compliance at any time with Section 6.01, 6.04 or 6.07 (and for purposes of any related definitions), the Borrower may, at any time and from time to time in its sole discretion, reclassify (or deem such reclassification to have occurred automatically), any Indebtedness, Investment, Restricted Payment or Restricted Debt Payment (or a portion thereof), as applicable, that was previously incurred, made or otherwise undertaken under any basket or prong as having been incurred, made or otherwise undertaken under any applicable “ratio-based” basket or prong set forth in such Section (or such related definition) if such item (or such portion thereof) would, using the figures as of the end of or for any Test Period ended after the date of such incurrence, making or undertaking, be permitted under the applicable “ratio-based” basket or prong; provided that, in the case of Sections 6.01 and 6.02, any such reclassification shall be subject to the limitations set forth in the proviso to the immediately preceding sentence. For the avoidance of doubt, any amount so classified or reclassified to any applicable “ratio-based” basket or prong shall be disregarded, and shall be deemed not to be outstanding, for purposes of determining availability under any other applicable exception in such Section (and for purposes of any related definitions) that does not require compliance with a ratio.
(e) For purposes of determining compliance with this Agreement, (i) the outstanding principal amount of any Indebtedness issued at a price that is less than the principal amount thereof shall be equal, as of any date of determination, to the principal amount thereof that would appear on a consolidated balance sheet of the Borrower as of such date prepared in accordance with GAAP and (ii) the accrual of interest, the accrual of dividends, the accretion of accreted value, the amortization of original issue discount, the payment of interest or a dividend in the form of additional Indebtedness or additional shares of Equity Interests and/or any increase in the amount of Indebtedness outstanding solely as a result of any fluctuation in the exchange rate of any applicable currency shall not be deemed to be an incurrence of Indebtedness and, to the extent secured, shall not be deemed to result in an increase of the obligations so secured or to be a grant of a Lien securing any such obligations.
Appears in 1 contract
Sources: Credit Agreement (IHS Markit Ltd.)