Certain Tests Clause Samples
Certain Tests. (a) Notwithstanding anything to the contrary herein, for purposes of determining compliance with any provision of this Agreement, if any Indebtedness (including any Incremental Amount), Lien, Disposition, Restricted Payment (or a portion thereof), repayment of Junior Financing or Investment would be permitted pursuant to one or more provisions of this Agreement, the Borrowers, in their sole discretion, may divide and classify or reclassify such Indebtedness (including any Incremental Amount), Lien, Disposition, Restricted Payment (or a portion thereof), repayment of Junior Financing or Investment within such covenant in any manner that complies with the applicable terms of this Agreement, and may later divide and reclassify any such Indebtedness (including any Incremental Amount), Lien, Disposition, Restricted Payment (or a portion thereof), repayment of Junior Financing or Investment so long as the Indebtedness (including any Incremental Amount), Lien, Disposition, Restricted Payment (or a portion thereof), repayment of Junior Financing or Investment (as so redivided and/or reclassified) would be permitted to be made in reliance on the applicable exception as of the date of such redivision or reclassification (it being understood that any Indebtedness (including any Incremental Amount), Lien, Disposition, Restricted Payment (or a portion thereof), repayment of Junior Financing or Investment made pursuant to a Fixed Amount shall cease to be deemed made pursuant to such Fixed Amount but shall automatically be deemed made pursuant to an applicable Incurrence-Based Amount from and after the first date on which the Borrowers or such Restricted Subsidiary, as the case may be, could have incurred such Indebtedness (including any Incremental Amount), incurred such Lien, consummated such Disposition, made such Restricted Payment, repaid such Junior Financing or made such Investment pursuant to such Incurrence-Based Amount); provided that any secured Indebtedness shall only be automatically reclassified to the extent that such Liens could also have been incurred); provided, further, that (x) all Indebtedness under the Facilities may only be Incurred pursuant to Section 7.03(b)(i) and the Borrowers shall not be permitted to reclassify all or any portion of such Indebtedness, (y) Indebtedness under the Senior Notes may only be Incurred pursuant to Section 7.03(a) and the Borrowers shall not be permitted to reclassify all or any portion of such Indebtedness and (z) In...
Certain Tests. Notwithstanding anything to the contrary herein, to the extent that the terms of this Credit Agreement require (w) compliance with any financial ratio or test (including Section 7.07, any Consolidated Net Leverage Ratio, Consolidated Senior Secured Net Leverage Ratio and/or any Consolidated Interest Coverage Ratio) and/or any threshold or cap expressed as a percentage of Consolidated EBITDA, Consolidated Total Assets or Consolidated Net Tangible Assets, (x) the absence of a Default or Event of Default (or any type of Default or Event of Default), (y) the making and/or accuracy of any representation and/or warranty or (z) compliance with availability under any basket, carve-out, exception or threshold (including any basket, carve-out, exception or threshold expressed as a percentage of Consolidated EBITDA, Consolidated Total Assets or Consolidated Net Tangible Assets), in each case, as a condition to (I) the consummation of any transaction in connection with any acquisition or other Investment (including the assumption or incurrence of Indebtedness) and/or (II) the making of any Restricted Payment, the determination of whether the relevant condition is satisfied may be made, at the election of the Borrower:
(i) in the case of any Acquisition or other Investment (including with respect to (X) any Indebtedness incurred or repaid and/or (Y) the designation of any Restricted Subsidiary as an Unrestricted Subsidiary, in each case, in connection therewith), at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of): (i) the execution of the definitive agreement with respect to such Acquisition or Investment, (ii) in connection with an acquisition 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 (iii) the consummation of such Acquisition or Investment, and/or
(ii) in the case of any Restricted Payment (including with respect to (X) any Indebtedness incurred or repaid and/or (Y) the designation of any Restricted Subsidiary as an Unrestricted Subsidiary contemplated or incurred, in each case, in connection therewith), at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (i) the declaration of such Restric...
Certain Tests. 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 (a) compliance with any financial covenant or test or (b) the absence of a Default or Unmatured Default as a condition to the consummation of a Permitted Acquisition, the determination of whether the relevant condition is satisfied may be made, at the election of the Borrower, either at (i) the date of execution of the definitive agreement with respect to such Permitted Acquisition or (ii) the date of consummation of such Permitted Acquisition; provided, that, notwithstanding the foregoing or any other provision of this Agreement to the contrary, if the Borrower elects to test compliance with any financial covenant at the date of execution of the definitive agreement with respect to a Permitted Acquisition and at the date of consummation of such Permitted Acquisition a Financial Covenant Default is continuing such Financial Covenant Default shall be cured by the exercise of the Cure Right within five Business Days following the consummation of such Permitted Acquisition.
Certain Tests. If the Borrower has the right to issue or accept or approve the issuance of any final “Taking Over Certificate” (as defined in any Construction Contract) for a Project component under the applicable Construction Contract, the Borrower shall not do so without the approval of the Administrative Agent (acting in consultation with the Independent Engineer); provided such approval of the Borrower’s issuance of a “Taking Over Certificate” shall not be unreasonably withheld, conditioned or delayed and shall be deemed approved if no response is received within three days following a written request for approval sent by the Borrower to the Administrative Agent and the Independent Engineer, which request shall note that the request shall be deemed approved within three days if not objected to before then; provided further that such approval by the Administrative Agent of the Borrower’s issuance of a “Taking Over Certificate” shall not be required if the punch-list or similar items associated with a “Taking Over Certificate” (as defined in any Construction Contract) have a value of less than $1,000,000 in the aggregate.