Common use of Certain Tests Clause in Contracts

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 Restricted Payment, (ii) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Payment or (ii) the making of such Restricted Payment, in each case of the foregoing subclauses (i) through (ii), after giving effect, on a Pro Forma Basis, to (I) the relevant Acquisition, Investment, Restricted Payment and/or any related incurrence or repayment of Indebtedness (including the intended use of proceeds thereof) and (II) to the extent definitive documents in respect thereof have been executed, the Restricted Payment has been declared or delivery of notice with respect to a Restricted Payment has been given (which definitive documents, declaration or notice has not been terminated or expired without the consummation thereof), any other Subject Transaction that the Borrower has elected to treat in accordance with this clause (d). If the Borrower has made the election above, then, in connection with any subsequent calculation of any ratio, basket or financial metric on the date of or following such election and prior to the earlier of (i) the date on which such transaction is consummated or (ii) the date on which such transaction is abandoned, terminated or expires without consummation thereof, any such ratio, basket or financial metric shall be calculated on a Pro Forma Basis assuming such transaction and any other transaction in connection therewith (including any incurrence of Indebtedness or Liens and the use of proceeds thereof) has been consummated. If financial statements for one or more subsequent Test Periods become available, the Borrower may elect, in its sole discretion, to re-determine all such ratios, tests or baskets on the basis of such financial statements, in which case, the ratios, tests or baskets on the date of such redetermination shall thereafter govern. In calculating the Consolidated Interest Coverage Ratio test for purpose of this calculation, the Borrower shall be entitled to use an assumed interest rate based on the then-available documentation as determined in good faith and without giving effect to any “pricing flex” term that may be included in any committed financing, unless such “pricing flex” is exercised prior to any recalculation date. The amount of unrestricted cash and Cash Equivalents as of the relevant date of determination shall be estimated by the Borrower in good faith based on the information then available to the Borrower.