Common use of Certain Calculations and Tests Clause in Contracts

Certain Calculations and Tests. (a) Notwithstanding anything to the contrary herein, to the extent that the terms of this Agreement require (i) compliance with any financial ratio or test (including, without limitation, any Secured Net Leverage Ratio test, and/or any Total Net Leverage Ratio test) and/or any cap expressed as a percentage of Consolidated Adjusted EBITDA or Consolidated Total Assets, (ii) the absence of a Default or Event of Default (or any type of Default or Event of Default), (iii) the making or accuracy of any representation and/or warranty or (iv) compliance with availability under any basket or cap (including any basket expressed as a percentage of Consolidated Adjusted EBITDA or Consolidated Total Assets), in each case, a condition to the consummation of any transaction in connection with any acquisition or similar Investment (including with respect to any Indebtedness contemplated, assumed or incurred in connection therewith), the determination of whether the relevant condition is satisfied may be made, at the election of the Issuer, 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, (y) in connection with an acquisition or similar Investment to which the United Kingdom City Code or Takeover and Mergers (or any comparable Requirement of Law) applies, the date on which a “Rule 2.7 announcement” of a firm intention to make an offer in respect of the target of an acquisition (or equivalent notice under comparable Requirements of Law) or (z) the consummation of such acquisition or Investment, in each case, after giving effect, on a Pro Forma Basis, to the relevant acquisition or Investment (including with respect to any Indebtedness contemplated, assumed or incurred in connection therewith); provided that (A) in the event that such acquisition or Investment shall not have been consummated on or prior to the date that is 270 days following the execution of the definitive acquisition agreement governing such acquisition or Investment, the determination of whether the matters specified in the preceding clauses (i) through (iv) have been satisfied shall be made on the date of the consummation of such acquisition or Investment, and (B) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) shall have occurred and be continuing on the date of the consummation of such acquisition or Investment. (b) For purposes of determining the permissibility of any action, change, transaction or event that requires a calculation of any financial ratio or test (including, without limitation, any Secured Net Leverage Ratio test, any Total Net Leverage Ratio test and/or the amount of Consolidated Adjusted EBITDA or Consolidated Total Assets), such financial ratio or test shall be calculated at the time such action is taken (subject to clause (a) 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 or amount occurring after such calculation, or after the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be. (c) Notwithstanding anything to the contrary herein, with respect to any amount incurred or transaction entered into (or consummated) in reliance on a provision of this Agreement that does not require compliance with a financial ratio or test (including, without limitation, any Secured Net Leverage Ratio test and/or any Total Net Leverage Ratio test) (any such amount, a “Fixed Amount”) substantially concurrently with any amount incurred or transaction entered into (or consummated) in reliance on a provision of this Agreement that requires compliance with a financial ratio or test (including, without limitation, any Secured Net Leverage Ratio test and/or any Total Net Leverage Ratio test) (any such amount, an “Incurrence-Based Amount”), it is understood and agreed that (i) any Fixed Amount shall be disregarded in the calculation of the financial ratio or test applicable to the relevant Incurrence-Based Amount, (ii) except as provided in clause (i), pro forma effect shall be given to the entire transaction and (iii) for the avoidance of doubt, all Indebtedness substantially concurrently incurred will be included for purposes of calculating compliance with Sections 6.04(a)(xi), 6.04(a)(xii), 6.04(a)(xiii), 6.04(b)(vii), 6.06(bb) and clause (a)(ii) of the Available Amount (in each case, giving pro forma effect to the intended use of proceeds thereof). The Issuer may elect that any amount incurred or transaction entered into (or consummated) in reliance on one or more of any Incurrence-Based Amount or any Fixed Amount in its sole discretion; provided, that unless the Issuer elects otherwise, each such amount or transaction shall be deemed incurred, entered into or consummated first under any Incurrence-Based Amount to the maximum extent permitted thereunder. (d) The principal amount of any non-interest bearing Indebtedness or other discount security constituting Indebtedness at any date shall be the principal amount thereof that would be shown on a balance sheet of the Issuer dated such date prepared in accordance with GAAP. (e) The increase in any amount secured by any Lien by virtue of the accrual of interest, the accretion of accreted value, the payment of interest or a dividend in the form of additional Indebtedness, amortization of original issue discount 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 will not be deemed to be the granting of a Lien for purposes of Section 6.02. (f) With respect to any pro forma calculation that is required to be made in connection with any acquisition or similar Investment in respect of which financial statements for the applicable target are not available for the same Test Period for which financial statements of the Issuer are available, the Issuer shall make the relevant calculation on the basis of the relevant available financial statements (even if for differing periods) or such other commercially reasonable basis as the Issuer may elect. (g) Any determination of the Weighted Average Life to Maturity of any Indebtedness shall be made by the Issuer in good faith at the time of the incurrence of such Indebtedness.

Certain Calculations and Tests. (a) Notwithstanding anything in this Agreement or any Loan Document to the contrary hereincontrary, to the extent that the terms for purposes of this Agreement require (i) determining compliance with any provision in this Agreement or any Loan Document that requires the calculation of any financial ratio or test (including, without limitation, Section 6.10, any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, and/or any Total Net Leverage Ratio test) , any Interest Coverage Ratio test, and/or any cap expressed as a percentage of Consolidated Adjusted EBITDA other financial ratio or Consolidated Total Assetstest), (ii) determining compliance with representations and warranties or the requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default), ) or (iii) the making or accuracy of testing any representation and/or warranty or (iv) compliance with availability under any basket or cap (including any basket expressed measured as a percentage of Consolidated Adjusted EBITDA or Consolidated Total Assets)any other financial metric or by reference to the Available Amount, or any other availability of a “basket” or exception set forth in this Agreement, in each case, a condition to the consummation of any transaction in connection with any acquisition or similar Investment (including with respect to any Indebtedness contemplated, assumed or incurred in connection therewith)a Limited Condition Transaction, the determination date of whether the relevant condition is satisfied may be madedetermination, at the election of the IssuerBorrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), will be deemed to be (1) in the case of any acquisition or other Investment, Disposition, incurrence of Indebtedness or any transaction related to the foregoing, in each case not prohibited hereunder, 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 acquisition agreements or other binding contracts or agreements, or the establishment of a commitment, as applicable, with respect to such acquisition or acquisition, Investment, Disposition, Indebtedness or related transaction (y) or, solely in connection with an acquisition or similar Investment to which the United Kingdom City Code or Takeover on Takeovers and Mergers (or any comparable Requirement of Law) applies, the date on which a “Rule 2.7 announcementAnnouncement” of a firm intention to make an offer or similar announcement or determination in another jurisdiction subject to laws similar to the City Code in respect of such target company made in compliance with the target of an acquisition City Code or similar laws or practices in other jurisdictions (or equivalent notice under comparable Requirements of Lawa “Public Offer”)) or (zy) the consummation of such acquisition or acquisition, Investment, Disposition, incurrence of Indebtedness or related transaction, (2) in each casethe case of any Restricted 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) the declaration of such Restricted Payment or (y) the making of such Restricted Payment and (3) in the case of any Restricted Debt Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Debt Payment or (y) the making of such Restricted Debt Payment (the applicable date pursuant to clause (1), (2) or (3) above, as applicable, the “LCT Test Date”), and if, after giving effect, such ratios and other provisions are measured on a Pro Forma Basis, Basis (disregarding for the purposes of such pro forma calculation any Borrowing under the RC Facility or any other revolving facility) after giving effect to the relevant Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) and, at the election of the Borrower, any other acquisition or Investment (including similar Investment, Restricted Payment, Restricted Debt Payment or Disposition that has not been consummated but with respect to which the Borrower has elected to test any Indebtedness contemplatedapplicable condition prior to the date of consummation in accordance with this Section 1.09(a), assumed as if they had occurred at the beginning of the most recently completed Test Period ending prior to the LCT Test Date, the Borrower could have taken such action on the relevant LCT Test Date in compliance with such ratios, representation, warranty, absence of Default or incurred in connection therewith); provided that (A) in the event that Event of Default or “basket”, such acquisition ratio, representation, warranty, absence of Default or Investment Event of Default or “basket” shall not be deemed to have been consummated on complied with. For the avoidance of doubt, if the Borrower has made an LCT Election and (x) any of the ratios or “baskets” for which compliance was determined or tested as of the LCT Test Date are exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of fluctuations in any such ratio or “basket” (including due to fluctuations of the target of any Limited Condition Transaction) at or prior to the date consummation of the relevant Limited Condition Transaction, such “baskets” or ratios and other provisions will be deemed not to have been exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction is permitted hereunder (provided, for the avoidance of doubt, that is 270 days the Borrower or any other Group Member may rely upon any improvement in any such ratio or “basket” availability) and (y) in connection with any subsequent calculation of any ratio or “basket” availability on or following the execution relevant LCT Test Date and prior to the earlier of the definitive acquisition agreement governing such acquisition or Investment, the determination of whether the matters specified in the preceding clauses (i) through (iv) have been satisfied shall be made on the date of on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement or Public Offer for such Limited Condition Transaction is terminated or expires without consummation of such acquisition Limited Condition Transaction, any such ratio or Investment“basket” availability shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of debt and the use of proceeds thereof (but without netting the cash proceeds thereof)) had been consummated. The provisions of this Section 1.09(a) shall, and (B) no Event for the avoidance of Default under Sections 7.01(a)doubt, 7.01(f) or 7.01(g) shall have occurred and be continuing on the date apply in respect of the consummation of such acquisition or Investment. (b) For purposes of determining the permissibility incurrence of any actionIncremental Facility. For the avoidance of doubt, changethe making of an LCT Election shall not require notice to the Administrative Agent or any other Person. For the further avoidance of doubt, transaction or event that requires a calculation in the absence of an LCT Election, unless specifically stated in this Agreement to be otherwise, all determinations of (x) compliance with any financial ratio or test (including, without limitation, Section 6.10, any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, any Total Net Leverage Ratio test test, any Interest Coverage Ratio test, and/or the amount of Consolidated Adjusted EBITDA or Consolidated Total Assets), such any other financial ratio or test) and/or any cap expressed as a percentage of Consolidated EBITDA or any other financial metric, (y) the accuracy of any representation and warranties, or any requirement regarding the absence of a Default or Event of Default (or any type of Default or Event of Default) or (z) any availability test shall under any “baskets” shall, in each case, be calculated at made as of the applicable date of the consummation of the Specified Transaction or the time such the applicable action is taken (subject to clause (a) above)taken, 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 occur solely as a result of a change in any such financial ratio or test test, cap, financial metric, or amount “basket” availability occurring after such calculation, or after the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be.time (cb) Notwithstanding anything to the contrary herein, with respect to any amount amounts incurred or transaction transactions entered into (or consummated) in reliance on a provision of this Agreement that does not require compliance with a financial ratio or test (including, without limitation, Section 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Total Net Leverage Interest Coverage Ratio test) (any such amountamounts, a the “Fixed AmountAmounts”) substantially concurrently (or as part of a series of related transactions) with any amount amounts incurred or transaction transactions entered into (or consummated) in reliance on a provision of this Agreement that requires compliance with a financial ratio or test (including, without limitation, Section 6.10, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Total Net Leverage Interest Coverage Ratio test) (any such amountamounts, an the “Incurrence-Based AmountAmounts”), it is understood and agreed that (i) the Fixed Amounts (and any Fixed cash proceeds thereof and any concurrent borrowing under a revolving facility, including a Borrowing consisting of RC Facility Loans or any other revolving facility) shall be disregarded, and the incurrence of the Incurrence-Based Amount shall be disregarded in the calculation of the financial ratio or test applicable calculated, first without giving effect to the relevant Incurrence-Based any Fixed Amount, (ii) except as provided in clause (i), pro forma effect shall be given to the entire transaction and (iii) for the avoidance of doubt, all Indebtedness substantially concurrently incurred will be included for purposes of calculating compliance with Sections 6.04(a)(xi), 6.04(a)(xii), 6.04(a)(xiii), 6.04(b)(vii), 6.06(bb) and clause (a)(ii) of the Available Amount (in each case, but giving full pro forma effect to the intended use of proceeds thereof). The Issuer of such Fixed Amount and (ii) the incurrence of the Fixed Amount shall be calculated thereafter. (c) Notwithstanding anything to the contrary herein, for purposes of the covenants described in Article VI, if any transaction or action would be permitted pursuant to one or more provisions described therein, the Borrower may elect divide and classify such transaction or action within any covenant in any manner that complies with the covenants set forth therein, and may later divide and reclassify any amount incurred such transaction or action so long as the transaction entered into or action (or consummatedas so divided and/or reclassified) would be permitted to be made in reliance on one the applicable exception as of the date of such reclassification; provided that if any financial ratio or more of test governing any applicable Incurrence-Based Amount or would be satisfied in any subsequent period following the utilization of any Fixed Amount in its sole discretion; providedAmount, that unless the Issuer elects otherwise, each such amount or transaction reclassification shall be deemed incurred, entered into or consummated first under any Incurrence-Based Amount to the maximum extent permitted thereunder. (d) The principal amount of any non-interest bearing Indebtedness or other discount security constituting Indebtedness at any date shall be the principal amount thereof that would be shown on a balance sheet of the Issuer dated such date prepared in accordance with GAAP. (e) The increase in any amount secured by any Lien by virtue of the accrual of interest, the accretion of accreted value, the payment of interest or a dividend in the form of additional Indebtedness, amortization of original issue discount 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 will have automatically occurred if not be deemed to be the granting of a Lien for purposes of Section 6.02. (f) With respect to any pro forma calculation that is required to be made in connection with any acquisition or similar Investment in respect of which financial statements for the applicable target are not available for the same Test Period for which financial statements of the Issuer are available, the Issuer shall make the relevant calculation on the basis of the relevant available financial statements (even if for differing periods) or such other commercially reasonable basis as the Issuer may elect. (g) Any determination of the Weighted Average Life to Maturity of any Indebtedness shall be made elected by the Issuer in good faith at the time of the incurrence of such IndebtednessBorrower.