Limited Condition Transactions. In the event that the Borrower notifies the Administrative Agent in writing that any proposed Specified Transaction is a Limited Condition Transaction and that the Borrower wishes to test the conditions to such Specified Transaction or determine the amount or availability of the Incremental Facility Amount or any other basket based on Consolidated EBITDA set forth in the Loan Documents in accordance with this Section 1.13, the following provisions shall apply: (a) any condition to such Limited Condition Transaction or to the amount or availability of any Incremental Loans that are used to finance such Limited Condition Transaction that requires that no Default or Event of Default shall have occurred and be continuing at the time of such Limited Condition Transaction or the availability of such Incremental Loans, shall be satisfied if (i) no Default or Event of Default shall have occurred and be continuing at the time of the execution (the “LCT Test Date”) of the definitive purchase agreement, merger agreement or other definitive agreement governing such Limited Condition Transaction (any such agreement “Limited Condition Transaction Agreement”) and (ii) no Specified Event of Default shall have occurred and be continuing both immediately before and immediately after giving effect to such Limited Condition Transaction and all other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith); (b) any condition to such Limited Condition Transaction or such Incremental Loans that the representations and warranties in this Agreement and the other Loan Documents shall be true and correct at the time of consummation of such Limited Condition Transaction or the incurrence of such Indebtedness shall be deemed satisfied if, as of the date of consummation of such Limited Condition Transaction, the Specified Acquisition Agreement Representations and the Specified Representations are true and correct in all material respects (except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects); (c) any financial ratio test or condition or basket to be tested in connection with such Limited Condition Transaction and the availability of such Incremental Loans (including the calculation of the Incremental Facility Amount) will be tested as of the LCT Test Date, in each case, after giving effect to the relevant Limited Condition Transaction and all other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith), on a Pro Forma Basis where applicable, and, for the avoidance of doubt, (i) such ratios and baskets shall not be tested at the time of consummation of such Limited Condition Transaction and (ii) if any of such ratios are exceeded or conditions are not met following the LCT Test Date, but prior to the closing of such Limited Condition Transaction, as a result of fluctuations in such ratio or amount (including due to fluctuations in Consolidated EBITDA of the Borrower or the Person subject to such Limited Condition Transaction), at or prior to the consummation of the relevant transaction or action, such ratios will not be deemed to have been exceeded and such conditions will not be deemed unmet as a result of such fluctuations solely for purposes of determining whether the relevant transaction or action is permitted to be consummated or taken; (d) except as provided in the next sentence, in connection with any subsequent calculation of any ratio or basket on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated and (ii) the date that the relevant Limited Condition Transaction Agreement is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or basket shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith) have been consummated. Notwithstanding the foregoing, any calculation of a ratio in connection with determining the Applicable Margin and determining whether or not the Borrower is in compliance with the financial covenants set forth in Section 9.15 shall, in each case be calculated assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith) have not been consummated. The foregoing provisions are collectively referred to as the “Limited Condition Transaction Provisions”, and shall apply with similar effect during the pendency of multiple Limited Condition Transactions such that each of the possible scenarios is separately tested.
Appears in 5 contracts
Sources: Fourth Amendment and Lender Joinder Agreement (SYNAPTICS Inc), Credit Agreement (SYNAPTICS Inc), Credit Agreement (SYNAPTICS Inc)
Limited Condition Transactions. In the event that the Borrower Borrowing Agent notifies the Administrative Agent in writing that any proposed Specified Transaction Acquisition or Investment is a Limited Condition Transaction and that the Borrower Borrowing Agent wishes to test the conditions to such Specified Limited Condition Transaction or determine and the amount or availability of the Incremental Facility Amount or any other basket based on Consolidated EBITDA set forth in the Loan Documents Term Loans that are to be used to finance such Limited Condition Transaction in accordance with this Section 1.13, then, so long as agreed to by the Incremental Lenders providing such Incremental Term Loans, the following provisions shall apply:
(a) any condition to such Limited Condition Transaction or to the amount or availability of any Incremental Loans that are used to finance such Limited Condition Transaction that requires that no Default or Event of Default shall have occurred and be continuing at the time of such Limited Condition Transaction or the availability of such Incremental LoansTransaction, shall be satisfied if (i) no Default or Event of Default shall have occurred and be continuing at the time of the execution (the “LCT Test Date”) of the definitive purchase agreement, merger agreement or other definitive agreement agreements governing such Limited Condition Transaction (any such agreement “Limited Condition Transaction Agreement”) and (ii) no Specified Event of Default under any of Sections 8.01(a), 8.01(f) or 8.01(g) shall have occurred and be continuing both immediately before and immediately after giving effect to such Limited Condition Transaction and all other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith)Transaction;
(b) any condition to such Limited Condition Transaction or such Incremental Loans that the representations and warranties in this Agreement and the other Loan Documents shall be true and correct at the time of consummation of such Limited Condition Transaction or the incurrence of such Indebtedness shall be deemed satisfied if, as of the date of consummation of such Limited Condition Transaction, the Specified Acquisition Agreement Representations and the Specified Representations are true and correct in all material respects (except for to the extent any such representation and warranty that is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects) at the time of such Limited Condition Transaction shall be subject to customary “SunGard” or other customary applicable “certain funds” conditionality provisions (including, without limitation, a condition that the representations and warranties under the relevant agreements relating to such Limited Condition Transaction as are material to the Incremental Lenders providing such Incremental Term Loans shall be true and correct, but only to the extent that the Borrowing Agent or its applicable Restricted Subsidiary has the right to terminate its obligations under such agreement as a result of a breach of such representations and warranties or the failure of those representations and warranties to be true and correct), so long as all representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects (except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects) at the time of execution of the definitive agreement(s) governing such Limited Condition Transaction (except to the extent that any representation and warranty specifically refer to an earlier date, in which case such representation and warranty shall be true and correct in all material respects as of such earlier date, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects as of such earlier date);
(c) any financial ratio test or condition may, upon the written election of the Borrowing Agent delivered to the Administrative Agent on or basket prior to the date of execution of the definitive agreement(s) for such Limited Condition Transaction, be tested in connection either (i) upon the execution of the definitive agreement(s) with respect to such Limited Condition Transaction and or (ii) upon the availability of such Incremental Loans (including the calculation consummation of the Incremental Facility Amount) will be tested as Limited Condition Transaction and related incurrence of the LCT Test DateIndebtedness, in each case, after giving effect to the relevant Limited Condition Transaction and all other transactions in connection therewith (including the related incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith)Indebtedness, on a Pro Forma Basis where applicable, and, pro forma basis; provided that the failure to deliver a notice under this Section 1.13(c) on or prior to the date of execution of the definitive agreement(s) for the avoidance of doubt, (i) such ratios and baskets shall not be tested at the time of consummation of such Limited Condition Transaction and shall be deemed an election to test the applicable financial ratio under subclause (ii) if any of such ratios are exceeded or conditions are not met following the LCT Test Date, but prior to the closing of such Limited Condition Transaction, as a result of fluctuations in such ratio or amount (including due to fluctuations in Consolidated EBITDA of the Borrower or the Person subject to such Limited Condition Transactionthis Section 1.13(c), at or prior to the consummation of the relevant transaction or action, such ratios will not be deemed to have been exceeded and such conditions will not be deemed unmet as a result of such fluctuations solely for purposes of determining whether the relevant transaction or action is permitted to be consummated or taken;; and
(d) except as provided if the Borrowing Agent has made an election with respect to any Limited Condition Transaction to test a financial ratio test or condition at the time specified in the next sentenceclause (c)(i) of this Section, then in connection with any subsequent calculation of any ratio or basket on or following the relevant LCT Test Date date of execution of the definitive agreements with respect to such Limited Condition Transaction and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated and (ii) the date that the relevant definitive agreement(s) for such Limited Condition Transaction Agreement is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or basket shall be calculated on a Pro Forma Basis required to be satisfied assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith) have been consummated. Notwithstanding the foregoing, any calculation of a ratio in connection with determining the Applicable Margin and determining whether or not the Borrower is in compliance with the financial covenants set forth in Section 9.15 shall, in each case be calculated assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewithIndebtedness) have not been consummated. The foregoing provisions are collectively referred to as the “Limited Condition Transaction Provisions”, and shall apply with similar effect during the pendency of multiple Limited Condition Transactions such that each of the possible scenarios is separately tested.
Appears in 3 contracts
Sources: Credit Agreement (World Kinect Corp), Credit Agreement (World Fuel Services Corp), Credit Agreement (World Fuel Services Corp)
Limited Condition Transactions. In Notwithstanding anything to the contrary herein, in the event that the Borrower notifies Company provides written notice to the Administrative Agent in writing that any designating a proposed Specified Transaction is transaction as a Limited Condition Transaction and that indicating the Borrower wishes Company’s intention to test the conditions to such Specified Limited Condition Transaction or determine and the amount or availability of the Incremental Facility Amount or any other basket based on Consolidated EBITDA set forth in the Term Loan Documents that is to be used to finance such Limited Condition Transaction in accordance with this Section 1.13Section, then the following provisions shall apply:
(ai) any condition to such Limited Condition Transaction or such Incremental Term Loan that the Loan Parties be in compliance with the financial covenants set forth in Section 8.11 immediately after giving effect to the amount or availability of any Incremental Loans that are used to finance such Limited Condition Transaction and the incurrence of such Incremental Term Loan on a Pro Forma Basis recomputed as of the end of the period of the four fiscal quarters most recently ended for which the Company has delivered financial statements pursuant to Section 7.01(a) or (b) shall be satisfied if the Loan Parties are in compliance with such financial covenants immediately after giving effect to such Limited Condition Transaction and the incurrence of such Incremental Term Loan on a Pro Forma Basis recomputed as of the end of the period of the four fiscal quarters most recently ended for which the Company has delivered financial statements pursuant to Section 7.01(a) or (b) immediately prior to the LCT Test Date;
(ii) any condition to such Incremental Term Loan that the Consolidated Net Leverage Ratio not exceed a specified level immediately after giving effect to the incurrence of such Incremental Term Loan on a Pro Forma Basis recomputed as of the end of the period of the four fiscal quarters most recently ended for which the Company has delivered financial statements pursuant to Section 7.01(a) or (b) shall be satisfied if the Loan Parties are in compliance with such Consolidated Net Leverage Ratio immediately after giving effect to the incurrence of such Incremental Term Loan on a Pro Forma Basis recomputed as of the end of the period of the four fiscal quarters most recently ended for which the Company has delivered financial statements pursuant to Section 7.01(a) or (b) immediately prior to the LCT Test Date;
(iii) any condition to such Limited Condition Transaction or such Incremental Term Loan that requires that no Default or Event of Default shall have occurred and be continuing at the time of such Limited Condition Transaction or the availability incurrence of such Incremental Loans, Term Loan shall be satisfied if (iA) no Default or Event of Default shall have occurred and be continuing at on the time of the execution (the “LCT Test Date”) of the definitive purchase agreement, merger agreement or other definitive agreement governing such Limited Condition Transaction (any such agreement “Limited Condition Transaction Agreement”) Date and (iiB) no Specified Event of Default under Section 9.01(a), 9.01(f) or 9.01(g) shall have occurred and be continuing both immediately before and immediately after giving effect to on the date of the consummation of such Limited Condition Transaction and all other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith)such Incremental Term Loan;
(biv) any condition to such Limited Condition Transaction or such Incremental Loans Term Loan that the representations and warranties in this Agreement and the Article VI or any other Loan Documents Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct at the time of consummation of such Limited Condition Transaction or the incurrence of such Indebtedness Incremental Term Loan shall be deemed satisfied ifif (A) the representations and warranties in Article VI or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, are true and correct as of the LCT Test Date and (B) customary “specified representations” and customary “specified purchase agreement representations” (or similar term), in each case as agreed by the Lenders providing such Incremental Term Loan, shall be true and correct on and as of the date of consummation of such Limited Condition Transaction, the Specified Acquisition Agreement Representations and the Specified Representations are true and correct in all material respects (except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects);
(c) any financial ratio test or condition or basket to be tested in connection with such Limited Condition Transaction and the availability of such Incremental Loans (including the calculation of the Incremental Facility Amount) will be tested as of the LCT Test Date, in each case, after giving effect to the relevant Limited Condition Transaction and all other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith), on a Pro Forma Basis where applicable, and, for the avoidance of doubt, (i) such ratios and baskets shall not be tested at the time of consummation of such Limited Condition Transaction and (ii) if any the incurrence of such ratios are exceeded or conditions are not met following the LCT Test Date, but prior to the closing of such Limited Condition Transaction, as a result of fluctuations in such ratio or amount (including due to fluctuations in Consolidated EBITDA of the Borrower or the Person subject to such Limited Condition Transaction), at or prior to the consummation of the relevant transaction or action, such ratios will not be deemed to have been exceeded and such conditions will not be deemed unmet as a result of such fluctuations solely for purposes of determining whether the relevant transaction or action is permitted to be consummated or taken;Incremental Term Loan; and
(dv) except as provided in the next sentence, in connection with any subsequent calculation of any ratio ratio, test or basket on or availability with respect to any transaction (each a “Subsequent Transaction”) following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated and (ii) the date that on which the definitive agreement (or other relevant definitive documentation) for such Limited Condition Transaction Agreement is terminated or expires without consummation expires, for purposes of determining whether such Limited Condition TransactionSubsequent Transaction is permitted under this Agreement, any such ratio ratio, test or basket shall be calculated and tested and must be satisfied both (A) on a Pro Forma Basis assuming giving effect to such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith) such Incremental Term Loan have been consummated. Notwithstanding the foregoing, any calculation of a ratio in connection with determining the Applicable Margin consummated and determining whether or not the Borrower is in compliance with the financial covenants set forth in Section 9.15 shall, in each case be calculated assuming (B) without giving effect to such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith) have not been consummated. The foregoing provisions are collectively referred to as the “Limited Condition Transaction Provisions”, and shall apply with similar effect during the pendency of multiple Limited Condition Transactions such that each of the possible scenarios is separately testedIncremental Term Loan.
Appears in 2 contracts
Sources: Syndicated Facility Agreement (Interface Inc), Syndicated Facility Agreement (Interface Inc)
Limited Condition Transactions. In Notwithstanding anything to the contrary herein, in the event that the Borrower notifies provides written notice to the Administrative Agent in writing that any designating a proposed Specified Transaction is transaction as a Limited Condition Transaction and that indicating the Borrower wishes Borrower’s intention to test the conditions to such Specified Limited Condition Transaction or determine and the amount or availability of the Incremental Term Facility Amount or any other basket based on Consolidated EBITDA set forth in the Loan Documents that is to be used to finance such Limited Condition Transaction in accordance with this Section 1.13Section, then the following provisions shall apply:
(ai) any condition to such Limited Condition Transaction or such Indebtedness that the Loan Parties be in compliance with the financial covenants set forth in Section 8.11 immediately after giving effect to the amount or availability of any Incremental Loans that are used to finance such Limited Condition Transaction and the incurrence of such Indebtedness on a Pro Forma Basis recomputed as of the end of the Applicable Period shall be satisfied if the Loan Parties are in compliance with such financial covenants immediately after giving effect to such Limited Condition Transaction and the incurrence of any Indebtedness (other than Revolving Loans, Swing Line Loans and Letters of Credit) on a Pro Forma Basis recomputed as of the end of the Applicable Period immediately prior to the LCT Test Date;
(ii) any condition to an Incremental Term Facility that the Consolidated Senior Secured Net Leverage Ratio not exceed a specified level immediately after giving effect to the incurrence of such Incremental Term Facility on a Pro Forma Basis recomputed as of the end of the Applicable Period shall be satisfied if the Loan Parties are in compliance with such Consolidated Senior Secured Net Leverage Ratio immediately after giving effect to the incurrence of such Incremental Term Facility on a Pro Forma Basis recomputed as of the end of the Applicable Period immediately prior to the LCT Test Date;
(iii) any condition to such Limited Condition Transaction or such Indebtedness that requires that no Default or Event of Default shall have occurred and be continuing at the time of such Limited Condition Transaction or the availability incurrence of such Incremental Loans, Indebtedness shall be satisfied if (iA) no Default or Event of Default shall have occurred and be continuing at on the time of the execution (the “LCT Test Date”) of the definitive purchase agreement, merger agreement or other definitive agreement governing such Limited Condition Transaction (any such agreement “Limited Condition Transaction Agreement”) Date and (iiB) no Specified Event of Default under Section 9.01(a), 9.01(f) or 9.01(g) shall have occurred and be continuing both immediately before and immediately after giving effect to on the date of the consummation of such Limited Condition Transaction and all other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith);such Indebtedness; and
(biv) any condition to such Limited Condition Transaction or such Incremental Loans Indebtedness that the representations and warranties in this Agreement and the Article VI or any other Loan Documents Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct at the time of consummation of such Limited Condition Transaction or the incurrence of such Indebtedness shall be deemed satisfied ifif (A) the representations and warranties in Article VI or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, are true and correct as of the LCT Test Date and (B) the Specified Representations and the Specified Purchase Agreement Representations shall be true and correct on and as of the date of consummation of such Limited Condition Transaction, the Specified Acquisition Agreement Representations and the Specified Representations are true and correct in all material respects (except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects);
(c) any financial ratio test or condition or basket to be tested in connection with such Limited Condition Transaction and the availability of such Incremental Loans (including the calculation of the Incremental Facility Amount) will be tested as of the LCT Test Date, in each case, after giving effect to the relevant Limited Condition Transaction and all other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith), on a Pro Forma Basis where applicable, and, for the avoidance of doubt, (i) such ratios and baskets shall not be tested at the time of consummation of such Limited Condition Transaction and (ii) if any the incurrence of such ratios are exceeded or conditions are not met following the LCT Test Date, but prior to the closing of such Limited Condition Transaction, as a result of fluctuations in such ratio or amount (including due to fluctuations in Consolidated EBITDA of the Borrower or the Person subject to such Limited Condition Transaction), at or prior to the consummation of the relevant transaction or action, such ratios will not be deemed to have been exceeded and such conditions will not be deemed unmet as a result of such fluctuations solely for purposes of determining whether the relevant transaction or action is permitted to be consummated or taken;
(d) except as provided in the next sentence, in connection with any subsequent calculation of any ratio or basket on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated and (ii) the date that the relevant Limited Condition Transaction Agreement is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or basket shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith) have been consummated. Notwithstanding the foregoing, any calculation of a ratio in connection with determining the Applicable Margin and determining whether or not the Borrower is in compliance with the financial covenants set forth in Section 9.15 shall, in each case be calculated assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith) have not been consummated. The foregoing provisions are collectively referred to as the “Limited Condition Transaction Provisions”, and shall apply with similar effect during the pendency of multiple Limited Condition Transactions such that each of the possible scenarios is separately testedIndebtedness.
Appears in 2 contracts
Sources: Credit Agreement (Caci International Inc /De/), Credit Agreement (Caci International Inc /De/)
Limited Condition Transactions. In Notwithstanding anything in this Agreement or any Credit Document to the event that contrary, for purposes of determining (a) Pro Forma Compliance with the Borrower notifies Total Net Leverage Ratio test in the Administrative Agent in writing that any proposed Specified Transaction is a Limited Condition Transaction and that Credit Documents (other than determining actual compliance with the Borrower wishes to test the conditions to such Specified Transaction or determine Financial Covenants), (b) the amount or availability of the Incremental Facility Increase Amount, Available Amount or any other basket based on Consolidated EBITDA set forth in or Consolidated Total Assets, (c) compliance with the Loan Documents in accordance with this Section 1.13, the following provisions shall apply:
representations and warranties or (ad) any condition to such Limited Condition Transaction or to the amount or availability of any Incremental Loans that are used to finance such Limited Condition Transaction that requires that no whether a Default or Event of Default shall have has occurred and be is continuing or would immediately result therefrom, in each case, in connection with the consummation of any Limited Condition Transaction, the date of determination shall, at the time option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), be the date the definitive agreements for such Limited Condition Transaction or the availability of such Incremental Loans, shall be satisfied if (i) no Default or Event of Default shall have occurred and be continuing at the time of the execution is entered into (the “LCT Test Date”) of the definitive purchase agreement, merger agreement or other definitive agreement governing such Limited Condition Transaction (any such agreement “Limited Condition Transaction Agreement”) and (ii) no Specified Event of Default shall have occurred and be continuing both immediately before and immediately after giving effect Pro Forma Effect to such Limited Condition Transaction and all other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitionsacquisitions, Investments and other transactions entered into (or to be entered into) or consummated (or to be consummated) in connection therewith);
therewith (bincluding any incurrence of Indebtedness and the use of proceeds thereof) any condition as if they occurred at the beginning of the most recently ended Test Period for which financial statements are required to be delivered (or are actually delivered, if earlier) immediately prior to the LCT Test Date; provided, that notwithstanding the foregoing, if the Borrower has made such an LCT Election and if the proceeds of an Incremental Facility Increase Amount are to be used to finance a Limited Condition Transaction Transaction, then such financing may be subject to customary “SunGard” or such Incremental Loans that “certain funds” conditionality and the representations and warranties in this Agreement and the other Loan Documents required shall be true and correct at the time of consummation of such Limited Condition Transaction or the incurrence of such Indebtedness shall be deemed satisfied if, as of the date of consummation of such Limited Condition Transaction, the Specified Acquisition Agreement Representations and limited to the Specified Representations are true and correct in all material respects acquisition agreement representations and warranties (except for to the extent such acquisition agreement representations and warranties allow the Borrower or its applicable Restricted Subsidiary to terminate its obligations under such acquisition agreement or not consummate such acquisition). For the avoidance of doubt, (x) if the Borrower has made an LCT Election and if any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects);
(c) any financial ratio test or condition or basket to be tested in connection with such Limited Condition Transaction and the availability of such Incremental Loans (including the calculation of the Incremental Facility Amount) will be ratios, baskets or amounts for which compliance was determined or tested as of the LCT Test DateDate are exceeded, in each case, after giving effect to the relevant Limited Condition Transaction and all other transactions in connection therewith (including the incurrence or assumption any representation or warranty would be breached or any Default or Event of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith), on a Pro Forma Basis where applicable, and, for the avoidance of doubt, (i) such ratios and baskets shall not be tested at the time of consummation of such Limited Condition Transaction and (ii) if any of such ratios are exceeded or conditions are not met following the LCT Test Date, but prior to the closing of such Limited Condition TransactionDefault blocker would apply, as a result of fluctuations in such ratio ratio, basket or amount (including due to fluctuations in Consolidated EBITDA of the Borrower or the Person subject to such Limited Condition Transaction) or as a result of the occurrence of any Default or Event of Default or other event (other than a Specified Event of Default), in each case, at or prior to the consummation of the relevant transaction or actionLimited Condition Transaction, such ratios ratios, baskets or amounts will not be deemed not to have been exceeded and such conditions will not be deemed unmet as a result of such fluctuations fluctuations, such representation or warranty shall be deemed not to have been breached, and such Default or Event of Default shall be deemed not to have occurred, in each case, solely for purposes of determining whether the relevant transaction or action is permitted to be consummated or taken;
, and (dy) except as such ratios, baskets or amounts shall not be tested at the time of consummation of such Limited Condition Transaction and all related acquisitions, Investments and other transactions entered into (or to be entered into) or consummated (or to be consummated) in connection therewith; provided in that if the next sentenceBorrower has made an LCT Election, then in connection with any subsequent calculation of any ratio ratio, basket or basket on or amount with respect to any other transaction following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated and (ii) or the date that the relevant definitive agreement (or, if applicable, the irrevocable notice or similar event) for such Limited Condition Transaction Agreement is terminated or expires without consummation of such Limited Condition Transaction, for purposes of determining whether (x) such subsequent transaction (other than with respect to Restricted Payments or Restricted Debt Payments) is permitted under the Loans, any such ratio ratio, basket or basket amount shall be calculated required to be satisfied on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitionsacquisitions, Investments and other transactions entered into (or to be entered into) or consummated (or to be consummated) in connection therewiththerewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated. Notwithstanding consummated and (y) such subsequent Restricted Payments or Restricted Debt Payments are permitted under the foregoingLoans, any calculation of such ratio, basket or amount shall be required to be satisfied on a ratio in connection with determining the Applicable Margin and determining whether or not the Borrower is in compliance with the financial covenants set forth in Section 9.15 shall, in each case be calculated Pro Forma Basis both (1) assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitionsacquisitions, Investments and other transactions entered into (or to be entered into) or consummated (or to be consummated) in connection therewiththerewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated and (2) assuming such Limited Condition Transaction and all related acquisitions, Investments and other transactions entered into (or to be entered into) or consummated (or to be consummated) in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have not been consummated. The foregoing provisions are collectively referred to as the “Limited Condition Transaction Provisions”, and shall apply with similar effect during the pendency of multiple Limited Condition Transactions such that each of the possible scenarios is separately tested.
Appears in 2 contracts
Sources: Credit Agreement (Ani Pharmaceuticals Inc), Credit Agreement (Ani Pharmaceuticals Inc)
Limited Condition Transactions. In Notwithstanding anything to the event contrary herein, to the extent that the Borrower notifies terms of this Agreement require (a) compliance with any basket, financial ratio or test (including any Consolidated Funded Debt Ratio test or Consolidated Interest Coverage Ratio test), (b) the Administrative Agent absence of a Default or an Event of Default, or (c) a determination as to whether the representations and warranties contained in writing that this Agreement or any proposed Specified Transaction other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect), in each case in connection with the consummation of a Limited Condition Transaction and that (other than the Borrower wishes to test making by any Lender or L/C Issuer, as applicable, of any Credit Extension), the conditions to such Specified Transaction or determine determination of whether the amount or availability relevant condition is satisfied may be made, at the election of the Incremental Facility Amount or any other basket based on Consolidated EBITDA set forth in the Loan Documents in accordance with this Section 1.13, the following provisions shall applyBorrower:
(ai) any condition (A) on the date of the execution of the definitive agreement with respect to such Limited Condition Transaction Transaction, or to (B) on the amount or availability of any Incremental Loans that are used to finance date on which such Limited Condition Transaction that requires that is consummated, in either case, after giving effect to the relevant Limited Condition Transaction, on a Pro Forma Basis; and
(ii) (A) on the date of the declaration or public announcement of such Restricted Payment, or (B) on the date on which such Restricted Payment is made, in either case, after giving effect to the relevant Restricted Payment, on a Pro Forma Basis; any such date identified in Section 1.08(i)(A) or (ii)(A) above, an “LCT Test Date” provided, that, notwithstanding the foregoing, in connection with any Limited Condition Transaction: (1) any condition requiring the absence of a Default or Event of Default (including the condition set forth in clause (g)(i) of Section 7.02) shall be satisfied if (x) no Default or Event of Default shall have occurred and be continuing as of the applicable LCT Test Date, and (y) no Specified Event of Default shall have occurred and be continuing at the time of such Limited Condition Transaction or the availability of such Incremental Loans, shall be satisfied if (i) no Default or Event of Default shall have occurred and be continuing at the time of the execution (the “LCT Test Date”) of the definitive purchase agreement, merger agreement or other definitive agreement governing such Limited Condition Transaction (any such agreement “Limited Condition Transaction Agreement”) and (ii) no Specified Event of Default shall have occurred and be continuing both immediately before and immediately after giving effect to such Limited Condition Transaction and all other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith);
(b) any condition to such Limited Condition Transaction or such Incremental Loans that the representations and warranties in this Agreement and the other Loan Documents shall be true and correct at the time of consummation of such Limited Condition Transaction or the incurrence of such Indebtedness shall be deemed satisfied if, as of the date of consummation of such Limited Condition Transaction, the Specified Acquisition Agreement Representations ; and the Specified Representations are true and correct in all material respects (except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects);
(c2) any financial ratio test or condition or basket to be tested in connection with such Limited Condition Transaction and the availability related Indebtedness, if any, to be incurred in connection therewith and the use of proceeds thereof shall be deemed consummated at the LCT Test Date (until such Incremental Loans time as the Limited Condition Transaction is actually consummated or the applicable definitive agreement is terminated without actually consummating the applicable Limited Condition Transaction) for purposes of determining Pro Forma Compliance with any financial ratio or test (including the any Consolidated Funded Debt Ratio test or Consolidated Interest Coverage Ratio test, or any calculation of the Incremental Facility Amount) will be financial covenants set forth in Section 7.11). For the avoidance of doubt, if any of such ratios or amounts for which compliance was determined or tested as of the LCT Test Date, in each case, after giving effect to the relevant Limited Condition Transaction and all other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith), on a Pro Forma Basis where applicable, and, for the avoidance of doubt, (i) such ratios and baskets shall not be tested at the time of consummation of such Limited Condition Transaction and (ii) if any of such ratios Date are thereafter exceeded or conditions are not met following the LCT Test Date, but prior otherwise failed to the closing of such Limited Condition Transaction, have been complied with as a result of fluctuations in such ratio or amount (including due to fluctuations in Consolidated EBITDA of the Borrower or the Person subject to such Limited Condition TransactionEBITDA), at or prior to the consummation of the relevant transaction or actionLimited Condition Transaction, such ratios or amounts will not be deemed to have been exceeded and such conditions will not or failed to be deemed unmet complied with as a result of such fluctuations solely for purposes of determining whether the relevant transaction or action Limited Condition Transaction is permitted to be consummated or taken;
(d) except as provided . It is understood and agreed that this Section 1.08 shall not limit the conditions set forth in the next sentenceSection 4.02 with respect to any proposed Credit Extension, in connection with any subsequent calculation of any ratio or basket on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such a Limited Condition Transaction is consummated and (ii) the date that the relevant Limited Condition Transaction Agreement is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or basket shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith) have been consummated. Notwithstanding the foregoing, any calculation of a ratio in connection with determining the Applicable Margin and determining whether or not the Borrower is in compliance with the financial covenants set forth in Section 9.15 shall, in each case be calculated assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith) have not been consummated. The foregoing provisions are collectively referred to as the “Limited Condition Transaction Provisions”, and shall apply with similar effect during the pendency of multiple Limited Condition Transactions such that each of the possible scenarios is separately testedotherwise.
Appears in 2 contracts
Sources: Credit Agreement (Unifirst Corp), Credit Agreement (Unifirst Corp)
Limited Condition Transactions. In Notwithstanding anything to the event contrary herein, to the extent that the Borrower notifies terms of this Agreement require (i) compliance with any basket, financial ratio or test, (ii) the Administrative Agent absence of a Default or an Event of Default, or (iii) a determination as to whether the representations and warranties contained in writing that this Agreement or any proposed Specified Transaction is other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects, in each case in connection with the consummation of a Limited Condition Transaction Acquisition or any transaction (including incurrence of Indebtedness other than Revolving Loans and that Swing Line Loans) to be undertaken in connection therewith, the Borrower wishes to test determination of whether the conditions to such Specified Transaction or determine relevant condition is satisfied may be made, at the amount or availability election of the Incremental Facility Amount or any other basket based Company, (A) on Consolidated EBITDA set forth in the Loan Documents in accordance date of the execution of the definitive agreement with this Section 1.13, the following provisions shall apply:
(a) any condition respect to such Limited Condition Transaction Acquisition (such date, the “LCA Test Date”), or to (B) on the amount or availability of any Incremental Loans that are used to finance date on which such Limited Condition Transaction that requires that Acquisition or other transaction is consummated, in either case, after giving effect to the relevant Limited Condition Acquisition and any related incurrence of Indebtedness, on a Pro Forma Basis; provided, that, notwithstanding the foregoing, in connection with any Limited Condition Acquisition or transaction (including incurrence of Indebtedness other than Revolving Loans and Swing Line Loans) to be undertaken in connection therewith: (1) the condition set forth in clause (b)(iii) of the definition of “Permitted Acquisition” shall be satisfied if (x) no Default or shall have occurred and be continuing as of the applicable LCA Test Date, and (y) no Event of Default under Section 8.01(a), 8.01(f) or 8.01(g) shall have occurred and be continuing at the time of consummation of such Limited Condition Transaction Acquisition or other transaction; (2) if the availability proceeds of an Incremental Term Facility are being used to finance such Limited Condition Acquisition, then (x) the conditions set forth in Section 2.14(d) and Section 4.02(a) shall be required to be satisfied at the time of funding of such Incremental LoansTerm Facility but, shall if the lenders providing such Incremental Term Facility so agree, the representations and warranties which must be accurate at the time of funding of such Incremental Term Facility may be limited to customary “specified representations” and such other representations and warranties as may be required by the lenders providing such Incremental Term Facility, and (y) the conditions set forth in Section 2.14(b) and Section 4.02(b) shall, if and to the extent the lenders providing such Incremental Term Facility so agree, be satisfied if (iI) no Default or Event of Default shall have occurred and be continuing at the time as of the execution (the “LCT applicable LCA Test Date”) of the definitive purchase agreement, merger agreement or other definitive agreement governing such Limited Condition Transaction (any such agreement “Limited Condition Transaction Agreement”) and (iiII) no Specified Event of Default under Section 8.01(a), 8.01(f) or 8.01(g) shall have occurred and be continuing both immediately before and immediately after giving effect to such Limited Condition Transaction and all other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith);
(b) any condition to such Limited Condition Transaction or such Incremental Loans that the representations and warranties in this Agreement and the other Loan Documents shall be true and correct at the time of consummation the funding of such Incremental Term Facility; and (3) if the Company has elected to apply an LCA Test Date to any Limited Condition Transaction or the incurrence of such Indebtedness shall be deemed satisfied ifAcquisition, as of the date of consummation of such Limited Condition Transaction, the Specified Acquisition Agreement Representations and the Specified Representations are true and correct in all material respects (except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects);
(c) any financial ratio test or condition or basket to be tested then in connection with such Limited Condition Transaction and the availability of such Incremental Loans (including the any calculation of any ratio, test or basket availability with respect to any other event that by the Incremental Facility Amount) will be tested as terms of the LCT Test Date, in each case, after giving effect to the relevant Limited Condition Transaction and all other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith), Loan Documents requires compliance on a Pro Forma Basis where applicablewith a test or covenant (each, and, for the avoidance of doubt, (ia “Subsequent Transaction”) such ratios and baskets shall not be tested at the time of consummation of such Limited Condition Transaction and (ii) if any of such ratios are exceeded or conditions are not met following the LCT Test Date, but prior to the closing of such Limited Condition Transaction, as a result of fluctuations in such ratio or amount (including due to fluctuations in Consolidated EBITDA of the Borrower or the Person subject to such Limited Condition Transaction), at or prior to the consummation of the relevant transaction or action, such ratios will not be deemed to have been exceeded and such conditions will not be deemed unmet as a result of such fluctuations solely for purposes of determining whether the relevant transaction or action is permitted to be consummated or taken;
(d) except as provided in the next sentence, in connection with any subsequent calculation of any ratio or basket on or following the relevant LCT LCA Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction Acquisition is consummated and (ii) the date that the relevant definitive agreement governing such Limited Condition Transaction Agreement Acquisition is terminated or expires without consummation of such Limited Condition TransactionAcquisition, for purposes of determining whether such Subsequent Transaction is permitted under this Agreement, any such ratio ratio, test or basket shall be calculated and tested both on (x) a Pro Forma Basis assuming such Limited Condition Transaction Acquisition and the other transactions in connection therewith have been consummated until such time as the applicable Limited Condition Acquisition has actually closed or the applicable Limited Condition Acquisition Agreement has been terminated or expires without consummation of such Limited Condition Acquisition, and (including y) a standalone basis without giving effect to such Limited Condition Acquisition and the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith. Except as set forth in clause (2) have been consummated. Notwithstanding in the foregoing, any calculation of a ratio proviso to the first sentence in this Section 1.10 in connection with determining the Applicable Margin use of the proceeds of an Incremental Term Facility to finance a Limited Condition Acquisition (and, in the case of such clause (2), only if and determining whether or to the extent the lenders providing such Incremental Term Facility so agree as provided in such clause (2)), it is understood and agreed that this Section 1.10 shall not limit the Borrower is in compliance with the financial covenants conditions set forth in Section 9.15 shall4.02 with respect to any proposed Credit Extension, in each case be calculated assuming such connection with a Limited Condition Transaction and other transactions in connection therewith (including the incurrence Acquisition or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith) have not been consummated. The foregoing provisions are collectively referred to as the “Limited Condition Transaction Provisions”, and shall apply with similar effect during the pendency of multiple Limited Condition Transactions such that each of the possible scenarios is separately testedotherwise.
Appears in 2 contracts
Sources: Credit Agreement (Methode Electronics Inc), Credit Agreement (Methode Electronics Inc)
Limited Condition Transactions. In the event that the Borrower Company notifies the Administrative Agent in writing that any proposed Specified Transaction Acquisition is a Limited Condition Transaction and that the Borrower Company wishes to test the conditions to such Specified Transaction Acquisition, and the Indebtedness under an Incremental Term Loan and/or Indebtedness under Section 7.03(r) that is to be used to finance such Acquisition or determine the amount or availability of the Incremental Facility Amount or any other basket based on Consolidated EBITDA set forth in the Loan Documents Investment in accordance with this Section 1.131.12, then, so long as agreed to by the Administrative Agent and the lenders providing such Indebtedness, the following provisions shall apply:
(a) any condition to such Limited Condition Transaction or to the amount or availability of any Incremental Loans that are used to finance such Limited Condition Transaction Indebtedness that requires that no Default or Event of Default shall have occurred and be continuing at the time of such Limited Condition Transaction or the availability incurrence of such Incremental LoansIndebtedness, shall be satisfied if (i) no Default or Event of Default shall have occurred and be continuing at the time of the execution of the definitive agreement governing such Limited Condition Transaction (the “LCT Test Date”) of the definitive purchase agreement, merger agreement or other definitive agreement governing such Limited Condition Transaction (any such agreement “Limited Condition Transaction Agreement”) and (ii) no Specified Event of Default shall have occurred and be continuing both immediately before and immediately after giving effect to such Limited Condition Transaction and all other transactions any Indebtedness incurred in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewithany such additional Indebtedness);
(b) any condition to such Limited Condition Transaction or such Incremental Loans Indebtedness that the representations and warranties in this Agreement and the other Loan Documents shall be true and correct at the time of consummation of such Limited Condition Transaction or the incurrence of such Indebtedness shall be deemed satisfied ifif (i) all representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects as of the LCT Test Date, except that (A) if a qualifier relating to materiality, Material Adverse Effect or a similar concept applies, such representation or warranty shall be required to be true and correct in all respects, (B) to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date (except that if a qualifier relating to materiality, Material Adverse Effect or a similar concept applies, such representation or warranty shall be required to be true and correct in all respects as of such earlier date), and (C) for purposes of this Section 1.12, the representations and warranties contained in subsections (a), (b) and (c) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01, and (ii) as of the date of consummation of such Limited Condition Transaction, (A) the Specified Acquisition representations and warranties under the relevant definitive agreement governing such Limited Condition Transaction as are material to the lenders providing such Indebtedness shall be true and correct, but only to the extent that the Company or its applicable Subsidiary has the right to terminate its obligations under such agreement or otherwise decline to close such Limited Condition Transaction as a result of a breach of such representations and warranties or the failure of those representations and warranties to be true and correct and (B) certain of the representations and warranties in this Agreement Representations and the Specified Representations other Loan Documents which are customary for similar “funds certain” financings and required by the lenders providing such Indebtedness shall be true and correct in all material respects, except that (I) if a qualifier relating to materiality, Material Adverse Effect or a similar concept applies, such representation or warranty shall be required to be true and correct in all respects, (II) to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date (except for any representation and warranty that is qualified by materiality or reference if a qualifier relating to materiality, Material Adverse EffectEffect or a similar concept applies, which such representation and or warranty shall be required to be true and correct in all respectsrespects as of such earlier date), and (III) for purposes of this Section 1.12, the representations and warranties contained in subsections (a), (b) and (c) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01;
(c) any financial ratio test or condition or basket to be tested in connection with such Limited Condition Transaction and the availability of such Incremental Loans (including the calculation of the Incremental Facility Amount) Indebtedness will be tested as of the LCT Test Date, in each case, after giving effect to the relevant Limited Condition Transaction and all other transactions in connection therewith (including the any related incurrence or assumption of Indebtedness and all related AcquisitionsIndebtedness, Investments and other transactions consummated (or to be consummated) in connection therewith), calculated on a Pro Forma Basis pursuant to Section 1.09, where applicable, and, for the avoidance of doubt, (i) such ratios and baskets shall not be tested at the time of consummation of such Limited Condition Transaction and (ii) if any of such ratios are exceeded or conditions are not met following the LCT Test Date, but prior to the closing of such Limited Condition Transaction, as a result of fluctuations in such ratio or amount (including due to fluctuations in Consolidated EBITDA of the Borrower or the Person subject to such Limited Condition Transaction)amount, at or prior to the consummation of the relevant transaction or action, such ratios will not be deemed to have been exceeded and such conditions will not be deemed unmet as a result of such fluctuations solely for purposes of determining whether the relevant transaction or action is permitted to be consummated or taken;; and
(d) except as provided in the next sentence, in connection with any subsequent calculation of any ratio or basket on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated and (ii) the date that the relevant definitive agreement for such Limited Condition Transaction Agreement is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or basket shall be calculated both (i) on a Pro Forma Basis pursuant to Section 1.09 assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments the use of proceeds thereof) have been consummated and (ii) assuming such Limited Condition Transaction and other transactions consummated (or to be consummated) in connection therewiththerewith (including the incurrence or assumption of Indebtedness and the use of proceeds thereof) have not been consummated. Notwithstanding the foregoing, any calculation of a ratio in connection with determining the Applicable Margin Rate and determining whether or not the Borrower Company is in compliance with the financial covenants set forth in Section 9.15 7.11 shall, in each case case, be calculated assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewiththe use of proceeds thereof) have not been consummated. The foregoing provisions are collectively referred to as the “Limited Condition Transaction Provisions”, and shall apply with similar effect during the pendency of multiple Limited Condition Transactions such that each of the possible scenarios is separately tested.
Appears in 2 contracts
Sources: Credit Agreement (Mastec Inc), Credit Agreement (Mastec Inc)
Limited Condition Transactions. In Notwithstanding anything in this Agreement or any Credit Document to the contrary, in the event that the Borrower notifies the Administrative Agent in writing that any proposed Specified Transaction Acquisition, Investment or redemption, repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness is a Limited Condition Transaction and that the Borrower wishes to test the conditions to such Specified Limited Condition Transaction or determine and the amount or availability of the Incremental Facility Amount or any other basket based on Consolidated EBITDA set forth in the Loan Documents Indebtedness that is to be used to finance such Limited Condition Transaction in accordance with this Section 1.131.7, then, so long as agreed to by the lenders providing such Indebtedness, the following provisions shall apply:
(a) any condition to the consummation of such Limited Condition Transaction or to the amount or availability of any Incremental Loans that are used to finance incurrence such Limited Condition Transaction Indebtedness that requires that no Default or Event of Default shall have occurred and be continuing at the time of the consummation of such Limited Condition Transaction or the availability incurrence of such Incremental LoansIndebtedness, shall be satisfied if (i) no Default or Event of Default shall have occurred and be continuing at the time of the execution (the “LCT Test Date”) of the definitive purchase agreement, merger agreement or other definitive agreement governing such Limited Condition Transaction or, in respect of any transaction described in clause (any such agreement b) of the definition of “Limited Condition Transaction AgreementTransaction”, the date on which irrevocable notice of repayment, redemption or offer to purchase is given (the “LCT Test Date”) and (ii) no Specified Event of Default shall have occurred and be continuing both immediately before and immediately after giving effect to the consummation of such Limited Condition Transaction and all other transactions in connection therewith (including the incurrence or assumption of any Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith);
(b) any condition to the consummation of such Limited Condition Transaction or the incurrence of such Incremental Loans Indebtedness that the representations and warranties in this Agreement and the other Loan Credit Documents shall be true and correct at the time of consummation of such Limited Condition Transaction or the incurrence of such Indebtedness shall be deemed satisfied if, as of the date of consummation of such Limited Condition Transaction, the Specified Acquisition if (i) all representations and warranties in this Agreement Representations and the Specified Representations other Credit Documents are true and correct in all material respects (except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects) as of the LCT Test Date, or if such representation speaks as of an earlier date, as of such earlier date and (ii) as of the date of consummation of such Limited Condition Transaction, (A) the representations and warranties under the relevant definitive agreement governing such Limited Condition Transaction as are material to the lenders providing such Indebtedness shall be true and correct, but only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations under such agreement or otherwise decline to close such Limited Condition Transaction as a result of a breach of such representations and warranties or the failure of those representations and warranties to be true and correct and (B) certain of the representations and warranties in this Agreement and the other Credit Documents which are customary for similar “funds certain” financings, as determined by the lenders providing such Indebtedness, shall be true and correct in all material respects (except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects), except for any representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct in all material respects as of such earlier date (except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects as of such earlier date);
(c) any financial ratio test or condition or basket to be tested in connection with the consummation of such Limited Condition Transaction and the availability incurrence of such Incremental Loans (including the calculation of the Incremental Facility Amount) Indebtedness will be tested as of the LCT Test Date, in each case, after giving effect to the consummation of the relevant Limited Condition Transaction and all other transactions in connection therewith (including the incurrence or assumption of such Indebtedness (assuming that such Indebtedness is fully funded on the LCT Test Date and all related Acquisitionsgiving effect to the use of proceeds thereof, Investments and other transactions consummated (or to be consummated) but without deducting the net cash proceeds from such Indebtedness in connection therewiththe calculation of any ratio under this Agreement), on a Pro Forma Basis pro forma basis where applicable, and, for the avoidance of doubt, (i) such ratios and baskets shall not be tested at the time of consummation of such Limited Condition Transaction and (ii) if any of such ratios are exceeded or conditions are not met following the LCT Test Date, but prior to the closing consummation of such Limited Condition TransactionTransaction or the incurrence of such Indebtedness, as a result of fluctuations in such ratio or amount (including due to fluctuations in Consolidated EBITDA of the Borrower or the Person subject to such Limited Condition Transaction), at or prior to the consummation of the relevant transaction or action, such ratios will not be deemed to have been exceeded and such conditions will not be deemed unmet as a result of such fluctuations solely for purposes of determining whether the relevant transaction or action is permitted to be consummated or taken;
(d) except as provided in the next sentence, in connection with any subsequent calculation of any ratio or basket on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated and (ii) the date that the relevant definitive agreement for such Limited Condition Transaction Agreement is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or basket shall be calculated on a Pro Forma Basis pro forma basis assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewithIndebtedness) have been consummated. Notwithstanding the foregoing, any calculation of a ratio in connection with determining the Applicable Margin and determining whether or not pro forma calculation of (x) the Borrower is in compliance with the financial covenants Senior Secured Leverage Ratio set forth in Section 9.15 shall10.7(a)(i) and (y) the Total Leverage Ratio set forth in Section 10.9(c) and Section 10.9(g), shall in each case be calculated assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewithIndebtedness) have not been consummated. The foregoing provisions are collectively referred to as the “Limited Condition Transaction Provisions”, and shall apply with similar effect during the pendency of multiple Limited Condition Transactions such that each of the possible scenarios Limited Condition Transactions is separately tested.
Appears in 2 contracts
Sources: Credit Agreement (WABASH NATIONAL Corp), Credit Agreement (WABASH NATIONAL Corp)
Limited Condition Transactions. In the event that the Borrower notifies the Administrative Agent in writing that any proposed Specified Transaction transaction is a Limited Condition Transaction and that the Borrower wishes to test the conditions to such Specified Limited Condition Transaction or determine the amount or availability of the Incremental Facility Amount or any other basket based on Consolidated EBITDA set forth in the Loan Documents in accordance with this Section 1.131.04, then, the following provisions shall apply:
(a) any condition to any such Limited Condition Transaction (including the incurrence or to the amount or availability issuance of any Incremental Loans that are used to finance Debt in connection with such Limited Condition Transaction Transaction) that requires that no Potential Event of Default or Event of Default shall have occurred and be continuing at the time of such Limited Condition Transaction or the availability of such Incremental LoansTransaction, shall be satisfied if (i) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time of the execution (the “LCT Test Date”) of the definitive purchase agreement, merger agreement or other definitive agreement governing such Limited Condition Transaction (or, in the case of any Restricted Payment, the date on which such agreement Restricted Payment is declared) (the “Limited Condition Transaction AgreementLCT Test Date”) and (ii) no Specified Event of Default under Section 7.01(a) or Section 7.01(f) shall have occurred and be continuing both immediately before and immediately after giving effect to such Limited Condition Transaction and all other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith)Transaction;
(b) any condition to such Limited Condition Transaction or such Incremental Loans that the representations and warranties in this Agreement and the other Loan Documents shall be true and correct at the time of consummation of such Limited Condition Transaction or the incurrence of such Indebtedness shall be deemed satisfied if, as of the date of consummation of such Limited Condition Transaction, the Specified Acquisition Agreement Representations and the Specified Representations are true and correct in all material respects (except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects);
(c) any financial ratio test or condition or basket to be tested in connection with such Limited Condition Transaction and the availability of such Incremental Loans (including the calculation of the Incremental Facility Amount) will be tested as of the LCT Test Date, in each case, after giving effect to the relevant such Limited Condition Transaction (including any incurrence or issuance of Debt and all the use of proceeds thereof) or other transactions transaction in connection therewith (including the incurrence or assumption of Indebtedness and all action or transaction related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith), thereto where applicable on a Pro Forma Basis where applicablepro forma basis, and, for the avoidance of doubt, (i) such ratios and baskets shall not be tested at the time of consummation of such Limited Condition Transaction and (ii) if any of such ratios are exceeded or conditions are not met following the LCT Test Date, but prior to the closing earlier of (x) the date on which such Limited Condition Transaction is consummated and (y) the date that the definitive agreement for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction (or the date for redemption, purchase, repayment or other Restricted Payment specified in an irrevocable notice is terminated or expires without consummation of such Limited Condition Transaction) (the “LCT Consummation Date”), as a result of fluctuations in such ratio or amount (including due to fluctuations in Consolidated EBITDA of the Borrower or the Person subject to such Limited Condition Transaction), at or prior to the consummation of the relevant transaction or action, such ratios will not be deemed to have been exceeded and such conditions will not be deemed unmet as a result of such fluctuations solely for purposes of determining whether the relevant transaction or action is permitted to be consummated or taken;
(dc) except as provided in the next sentence, in connection with any subsequent calculation of any ratio or basket on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated and (ii) the date that the relevant Limited Condition Transaction Agreement is terminated or expires without consummation of such Limited Condition TransactionLCT Consummation Date, any such ratio or basket shall be calculated on a Pro Forma Basis pro forma basis assuming such Limited Condition Transaction Transactions and other transactions in connection therewith (including the incurrence incurrence, issuance or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewithDebt) have been consummated. Notwithstanding the foregoing, any calculation of a ratio in connection with determining the Applicable Margin and determining whether or not the Borrower is in compliance with the financial covenants set forth in Section 9.15 6.03 shall, in each case be calculated assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewithDebt) have not been consummated. The foregoing provisions are collectively referred to as the “Limited Condition Transaction Provisions”, and shall apply with similar effect during the pendency of multiple Limited Condition Transactions such that each of the possible scenarios is separately tested.
Appears in 1 contract
Sources: Credit Agreement (Box Inc)
Limited Condition Transactions. In the event that the Borrower notifies the Administrative Agent in writing that any proposed Specified Transaction transaction is a Limited Condition Transaction and that the Borrower wishes to test the conditions to such Specified Limited Condition Transaction or determine and any Indebtedness (other than a Revolving Extension of Credit, but including the amount or availability of Delayed Draw Term Loan and any Incremental Term Loan) that is to be used to finance such Limited Condition Transaction and the Incremental Facility Amount or any other basket based on Consolidated EBITDA set forth in the Loan Documents related transaction costs and expenses associated with such Limited Condition Transaction in accordance with this Section 1.13, then, so long as the lenders providing such Indebtedness agree (provided, that the Lenders with Delayed Draw Term Loan Commitments the proceeds of which are used to finance a Permitted Acquisition that is a Limited Condition Transaction shall be deemed to have agreed), the following provisions shall apply:
(a) any condition to the consummation of such Limited Condition Transaction or to the amount or availability incurrence of any Incremental Loans that are used to finance such Limited Condition Transaction Indebtedness that requires that no Default or Event of Default shall have occurred and be continuing at the time of such Limited Condition Transaction or the availability incurrence of such Incremental LoansIndebtedness, shall be satisfied if (i) no Default or Event of Default shall have occurred and be continuing at the time of the execution of the definitive agreement (or other documentation) governing such Limited Condition Transaction or irrevocable notice of repayment, redemption or offer to purchase is given (the “LCT Test Date”) of the definitive purchase agreement, merger agreement or other definitive agreement governing such Limited Condition Transaction (any such agreement “Limited Condition Transaction Agreement”) and (ii) no Specified Event of Default under any of Section 10.1(a), 10.1(b), 10.1(h) or 10.1(i) shall have occurred and be continuing both immediately before and immediately after giving effect to the consummation such Limited Condition Transaction and all other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith)such Indebtedness;
(b) any condition to the consummation of such Limited Condition Transaction or the incurrence of such Incremental Loans Indebtedness that the representations and warranties in this Agreement and the other Loan Documents shall be true and correct at the time of consummation of such Limited Condition Transaction or the incurrence of such Indebtedness shall be deemed satisfied if, as of the date of consummation of such Limited Condition Transaction, the Specified Acquisition if (i) all representations and warranties in this Agreement Representations and the Specified Representations other Loan Documents are true and correct in all material respects (except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects) as of the LCT Test Date, or if such representation speaks as of an earlier date, as of such earlier date, and (ii) as of the date of consummation of such Limited Condition Transaction, (A) the representations and warranties under the relevant definitive agreement governing such Limited Condition Transaction as are material to the lenders providing such Indebtedness shall be true and correct, but only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations under such agreement or otherwise decline to close such Limited Condition Transaction as a result of a breach of such representations and warranties or the failure of those representations and warranties to be true and correct and (B) certain of the representations and warranties in this Agreement and the other Loan Documents which are customary for similar “funds certain” financings and required by the lenders providing such Indebtedness (which, in the case of the Delayed Draw Term Loan Commitments, shall be deemed to be limited to Section 3.4 of the Collateral Agreement (subject to Section 8.13 of this Agreement) and Sections 7.1 (solely with respect to the Credit Parties);, 7.3 (solely with respect to the Credit Parties), 7.4(b) (solely with respect to the charter documents of the Credit Parties as it relates to their entry into and performance of the Loan Documents), 7.10, 7.11, 7.16, and 7.19(b) (solely with respect to the use of the proceeds of the Delayed Draw Term Loan on the date of the consummation of the Limited Condition Transaction) of this Agreement) shall be true and correct in all material respects (except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects), except for any representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct in all material respects as of such earlier date (except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects as of such earlier date); 119071794_7
(c) any financial ratio test or condition or basket to be tested in connection with such Limited Condition Transaction and the availability of such Incremental Loans (including the calculation of the Incremental Facility Amount) Indebtedness will be tested as of the LCT Test Date, in each case, after giving effect to the relevant Limited Condition Transaction and all other transactions in connection therewith (including the related incurrence or assumption of Indebtedness (assuming that such Indebtedness is fully funded on the LCT Test Date and all related Acquisitionsgiving effect to the use of proceeds thereof, Investments and other transactions consummated (but without deducting the net cash proceeds from such Indebtedness in the calculation of the Consolidated Senior Secured Net Leverage Ratio or to be consummated) in connection therewiththe Consolidated Net Leverage Ratio, as applicable), on a Pro Forma Basis where applicable, and, for the avoidance of doubt, (i) such ratios and baskets shall not be tested at the time of consummation of such Limited Condition Transaction and (ii) if any of such ratios are exceeded or conditions are not met following the LCT Test Date, but at or prior to the closing of such Limited Condition Transaction, as a result of fluctuations in such ratio or amount (including due to fluctuations in Consolidated EBITDA of the Borrower or the Person subject to such Limited Condition Transaction), at or prior to the consummation of the relevant transaction or action, such ratios will not be deemed to have been exceeded and such conditions will not be deemed unmet as a result of such fluctuations solely for purposes of determining whether the relevant transaction or action is permitted to be consummated or taken;; and
(d) except as provided in the next sentence, in connection with any subsequent calculation of any ratio or basket on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated and (ii) the date that the relevant definitive agreement (or other documentation) for such Limited Condition Transaction Agreement is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or basket shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewithIndebtedness) have been consummated. Notwithstanding ; provided that, notwithstanding the foregoing, (i) any calculation of a ratio in connection with determining the Applicable Margin and determining whether or not the Borrower is in compliance with the financial covenants set forth in Section 9.15 9.13 shall, in each case be calculated assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness) have not been consummated and (ii) any calculation of a ratio or basket for payment of any Restricted Payment under Section 9.6 and any Junior Indebtedness and all related Acquisitions, Investments under Section 9.9 shall be calculated (x) on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions consummated (or to be consummated) in connection therewiththerewith (including the incurrence or assumption of Indebtedness) have been consummated and (y) assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness) have not been consummated. The foregoing provisions are collectively referred to as the “Limited Condition Transaction Provisions”, and shall apply with similar effect during the pendency of multiple Limited Condition Transactions such that each of the possible scenarios Limited Condition Transactions is separately tested.
Appears in 1 contract
Sources: Credit Agreement (RealPage, Inc.)
Limited Condition Transactions. In the event that the Borrower Company notifies the Administrative Agent in writing that any proposed Specified Transaction Acquisition or Investment is a Limited Condition Transaction and that the Borrower Company wishes to test the conditions to the Indebtedness (other than any Indebtedness arising under the revolving credit facility provided pursuant to the Aggregate Commitments, including any Revolving Credit Increase) that is to be used to finance such Specified Transaction Acquisition or determine Investment (such Indebtedness, the amount or availability of the Incremental Facility Amount or any other basket based on Consolidated EBITDA set forth in the Loan Documents “LCT Indebtedness”) in accordance with this Section 1.131.12, then, the following provisions shall apply:apply (so long as agreed to by the Administrative Agent and the lenders providing such LCT Indebtedness if such LCT Indebtedness (or a portion thereof) consists of an Incremental Term Loan):
(a) any condition to such Limited Condition Transaction or to the amount or availability of any Incremental Loans that are used to finance such Limited Condition Transaction LCT Indebtedness that requires that no Default or Event of Default shall have occurred and be continuing at the time of such Limited Condition Transaction or the availability incurrence of such Incremental LoansLCT Indebtedness, shall be satisfied if (i) no Default or Event of Default shall have occurred and be continuing at the time of the execution (the “LCT Test Date”) of the definitive purchase agreement, merger agreement or other definitive acquisition agreement governing such Limited Condition Transaction (any such agreement the “Limited Condition Transaction AgreementLCT Test Date”) and (ii) no Specified Event of Default under any of Section 8.01(a), 8.01(f) or 8.01(g) shall have occurred and be continuing both immediately before and immediately after giving effect to such Limited Condition Transaction and all other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith)any LCT Indebtedness;
(b) any condition to such Limited Condition Transaction or such Incremental Loans LCT Indebtedness that the representations and warranties in this Agreement and the other Loan Documents shall be true and correct in all material respects at the time of consummation of such Limited Condition Transaction or the incurrence of such LCT Indebtedness shall be deemed satisfied ifif (i) all representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects (except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects) as of the LCT Test Date, or if such representation speaks as of an earlier date, as of such earlier date and (ii) as of the date of consummation of such Limited Condition Transaction, (A) the Specified Acquisition representations and warranties under the relevant definitive agreement governing such Limited Condition Transaction as are material to the lenders providing such LCT Indebtedness shall be true and correct in all material respects, but only to the extent that the Company or its applicable Subsidiary has the right to terminate its obligations under such agreement or otherwise decline to close such Limited Condition Transaction as a result of a breach of such representations and warranties or the failure of those representations and warranties to be true and correct and (B) certain of the representations and warranties in this Agreement Representations and the Specified Representations other Loan Documents which are customary for similar “funds certain” financings and required by the lenders providing such LCT Indebtedness shall be true and correct in all material respects (except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects);
(c) any financial ratio test or condition or basket to be tested in connection with such Limited Condition Transaction and the availability of such Incremental Loans (including the calculation of the Incremental Facility Amount) LCT Indebtedness will be tested as of the LCT Test Date, in each case, after giving effect to the relevant Limited Condition Transaction and all other transactions in connection therewith (including the related incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith)LCT Indebtedness, on a Pro Forma Basis pro forma basis where applicable, and, for the avoidance of doubt, (i) such ratios and baskets shall not be tested at the time of consummation of such Limited Condition Transaction and (ii) if any of such ratios are exceeded or conditions are not met following the LCT Test Date, but prior to the closing of such Limited Condition Transaction, as a result of fluctuations in such ratio or amount (including due to fluctuations in Consolidated EBITDA of the Borrower Company or the Person subject to such Limited Condition Transaction), at or prior to the consummation of the relevant transaction or action, such ratios will not be deemed to have been exceeded and such conditions will not be deemed unmet as a result of such fluctuations solely for purposes of determining whether the relevant transaction or action is permitted to be consummated or taken;; and
(d) except as provided in the next sentence, in connection with any subsequent calculation of any ratio or basket on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated and (ii) the date that the relevant definitive agreement for such Limited Condition Transaction Agreement is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or basket shall be calculated (i) on a Pro Forma Basis pro forma basis assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness Indebtedness) have been consummated and all related Acquisitions, Investments (ii) assuming such Limited Condition Transaction and other transactions consummated (or to be consummated) in connection therewiththerewith (including the incurrence or assumption of Indebtedness) have not been consummated. Notwithstanding the foregoing, any calculation of a ratio in connection with determining the Applicable Margin Rate and determining whether or not the Borrower Company is in compliance with the financial covenants set forth in Section 9.15 7.09 shall, in each case be calculated assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewithLCT Indebtedness) have not been consummated. The foregoing provisions are collectively referred to as the “Limited Condition Transaction Provisions”, and shall apply with similar effect during the pendency of multiple Limited Condition Transactions such that each of the possible scenarios is separately tested.
Appears in 1 contract
Limited Condition Transactions. In the event that the Borrower Company notifies the Administrative Agent in writing that any proposed Specified Transaction Acquisition is a Limited Condition Transaction and that the Borrower Company wishes to test the conditions to such Specified Transaction Acquisition and Indebtedness under Section 7.03(r) that is to be used to finance such Acquisition or determine the amount or availability of the Incremental Facility Amount or any other basket based on Consolidated EBITDA set forth in the Loan Documents Investment in accordance with this Section 1.131.12, then, so long as agreed to by the Administrative Agent and the lenders providing such Indebtedness, the following provisions shall apply:
(a) any condition to such Limited Condition Transaction or to the amount or availability of any Incremental Loans that are used to finance such Limited Condition Transaction Indebtedness that requires that no Default or Event of Default shall have occurred and be continuing at the time of such Limited Condition Transaction or the availability incurrence of such Incremental LoansIndebtedness, shall be satisfied if (i) no Default or Event of Default shall have occurred and be continuing at the time of the execution of the definitive agreement governing such Limited Condition Transaction (the “LCT Test Date”) of the definitive purchase agreement, merger agreement or other definitive agreement governing such Limited Condition Transaction (any such agreement “Limited Condition Transaction Agreement”) and (ii) no Specified Event of Default shall have occurred and be continuing both immediately before and immediately after giving effect to such Limited Condition Transaction and all other transactions any Indebtedness incurred in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewithany such additional Indebtedness);
(b) any condition to such Limited Condition Transaction or such Incremental Loans that the representations and warranties in this Agreement and the other Loan Documents shall be true and correct at the time of consummation of such Limited Condition Transaction or the incurrence of such Indebtedness shall be deemed satisfied if, as of the date of consummation of such Limited Condition Transaction, the Specified Acquisition Agreement Representations and the Specified Representations are true and correct in all material respects (except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects);
(c) any financial ratio test or condition or basket to be tested in connection with such Limited Condition Transaction and the availability of such Incremental Loans (including the calculation of the Incremental Facility Amount) Indebtedness will be tested as of the LCT Test Date, in each case, after giving effect to the relevant Limited Condition Transaction and all other transactions in connection therewith (including the any related incurrence or assumption of Indebtedness and all related AcquisitionsIndebtedness, Investments and other transactions consummated (or to be consummated) in connection therewith), calculated on a Pro Forma Basis pursuant to Section 1.09, where applicable, and, for the avoidance of doubt, (i) such ratios and baskets shall not be tested at the time of consummation of such Limited Condition Transaction and (ii) if any of such ratios are exceeded or conditions are not met following the LCT Test Date, but prior to the closing of such Limited Condition Transaction, as a result of fluctuations in such ratio or amount (including due to fluctuations in Consolidated EBITDA of the Borrower or the Person subject to such Limited Condition Transaction)amount, at or prior to the consummation of the relevant transaction or action, such ratios will not be deemed to have been exceeded and such conditions will not be deemed unmet as a result of such fluctuations solely for purposes of determining whether the relevant transaction or action is permitted to be consummated or taken;; and
(dc) except as provided in the next sentence, in connection with any subsequent calculation of any ratio or basket on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated and (ii) the date that the relevant definitive agreement for such Limited Condition Transaction Agreement is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or basket shall be calculated both (i) on a Pro Forma Basis pursuant to Section 1.09 assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments the use of proceeds thereof) have been consummated and (ii) assuming such Limited Condition Transaction and other transactions consummated (or to be consummated) in connection therewiththerewith (including the incurrence or assumption of Indebtedness and the use of proceeds thereof) have not been consummated. Notwithstanding the foregoing, any calculation of a ratio in connection with determining the Applicable Margin Rate and determining whether or not the Borrower Company is in compliance with the financial covenants set forth in Section 9.15 7.11 shall, in each case case, be calculated assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewiththe use of proceeds thereof) have not been consummated. The foregoing provisions are collectively referred to as the “Limited Condition Transaction Provisions”, and shall apply with similar effect during the pendency of multiple Limited Condition Transactions such that each of the possible scenarios is separately tested.
Appears in 1 contract
Sources: Term Loan Agreement (Mastec Inc)
Limited Condition Transactions. In the event that the Borrower notifies the Administrative Agent in writing that any proposed Specified Transaction Acquisition, Investment or redemption, repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness is a Limited Condition Transaction and that the Borrower wishes to test the conditions to such Specified Limited Condition Transaction or determine the amount or availability of the Incremental Facility Amount or and any other basket based on Consolidated EBITDA set forth Indebtedness being incurred substantially concurrently with such Limited Condition Transaction that is to be used solely to finance such Limited Condition Transaction and any related transaction costs and expenses incurred in the Loan Documents connection with such Limited Condition Transaction in accordance with this Section 1.13(such notification, a “LCT Election”), then, so long as agreed to by the lenders providing such Indebtedness (if any), the following provisions shall apply:
(a) any condition to such Limited Condition Transaction or to the amount or availability of any Incremental Loans that are used to finance such Limited Condition Transaction Indebtedness that requires that no Default or Event of Default shall have occurred and be continuing at the time of such Limited Condition Transaction or the availability incurrence of such Incremental LoansIndebtedness, shall be satisfied if (i) no Default or Event of Default shall have occurred and be continuing at the time of the execution (the “LCT Test Date”) of the definitive purchase agreement, merger agreement or other definitive agreement agreements governing such Limited Condition Transaction (any such agreement date, the “Limited Condition Transaction AgreementLCT Test Date”) and (ii) no Specified Event of Default shall have occurred and be continuing both immediately before and immediately after giving effect to such Limited Condition Transaction and all other transactions any Indebtedness incurred in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewithsuch additional Indebtedness);
(b) any financial ratio test (including any such test calculated in determining amounts under baskets) or financial condition to such Limited Condition Transaction or such Incremental Loans that the representations and warranties in this Agreement and the other Loan Documents shall be true and correct at the time of consummation of such Limited Condition Transaction or the incurrence of such Indebtedness shall be deemed satisfied if, as of tested on the date of consummation of such Limited Condition Transaction, the Specified Acquisition Agreement Representations and the Specified Representations are true and correct in all material respects (except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects)LCT Test Date;
(c) any financial ratio test or condition or basket to be tested in connection with such Limited Condition Transaction and the availability of such Incremental Loans (including the calculation of the Incremental Facility Amount) will be tested as of the LCT Test Date, in each case, after giving effect to the relevant Limited Condition Transaction and all other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith), on a Pro Forma Basis where applicable, and, for the avoidance of doubt, (i) such ratios and baskets shall not be tested at the time of consummation of such Limited Condition Transaction and (ii) if any of such ratios are exceeded or conditions are not met following the LCT Test Date, but prior to the closing of such Limited Condition Transaction, as a result of fluctuations in such ratio or amount (including due to fluctuations in Consolidated EBITDA of the Borrower or the Person subject to such Limited Condition Transaction), at or prior to the consummation of the relevant transaction or action, such ratios will not be deemed to have been exceeded and such conditions will not be deemed unmet as a result of such fluctuations solely for purposes of determining whether the relevant transaction or action is permitted to be consummated or taken;
(d) except as provided in the next sentence, if the Borrower has made an LCT Election, then in connection with any subsequent calculation of any ratio or basket on or following the relevant LCT Test Date date of execution of the definitive agreement with respect to such Limited Condition Transaction and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated and or (ii) the date that the relevant definitive agreement for such Limited Condition Transaction Agreement is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or basket shall be calculated required to be satisfied on a Pro Forma Basis pro forma basis assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewiththe use of proceeds thereof) have been consummated. Notwithstanding the foregoing, any calculation of a ratio in connection with (x) determining the Applicable Margin Rate and determining whether or not the Borrower is in compliance with the financial covenants covenant set forth in Section 9.15 7.11 shall, in each case be calculated assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness Indebtedness) have not been consummated and all related Acquisitions, Investments (y) determining whether the Borrower or its Subsidiaries may make a Restricted Payment shall be calculated (1) on a pro forma basis assuming such Limited Condition Transaction and other transactions consummated (or to be consummated) in connection therewiththerewith (including the incurrence or assumption of Indebtedness and the use of proceeds thereof) have been consummated and (2) assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and the use of proceeds thereof) have not been consummated. For the avoidance of doubt, if the Borrower has made an LCT Election and any of the ratios or baskets for which compliance was determined or tested as of the LCT Test Date are exceeded as a result of fluctuations in any such ratio or basket (including due to fluctuations of the target of any Limited Condition Transaction) after the LCT Test Date, but at or prior to the consummation of the Limited Condition Transaction, such basket or ratio will not be deemed to have been exceeded as a result of such fluctuations; and
(d) with respect to any incurrence of Indebtedness, the proceeds of which are being used to finance a substantially concurrent Acquisition (and the related transaction costs) that is a Limited Condition Transaction subject to customary “funds certain provisions”, any requirement under this Agreement or any other Loan Document that the representations and warranties be true and correct as a condition precedent to such Acquisition or the incurrence and the availability of such Indebtedness may, if agreed to by the applicable lenders providing such Indebtedness, be limited to those representations and warranties, the accuracy of which is customarily included as a condition precedent to the incurrence or availability of third party acquisition financings that are subject to customary “funds certain provisions” (including, without limitation, certain specified representations and warranties under this Agreement and the representations and warranties under the relevant agreement governing such Acquisition that are material to the lenders providing such Indebtedness to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations under such agreement or otherwise decline to close such Acquisition as a result of the failure of such representations and warranties to be true and correct), so long as all representations and warranties in this Agreement and the other Loan Documents are true and correct at the time of execution of the relevant agreement governing such Acquisition, The foregoing provisions are collectively referred to as the “Limited Condition Transaction Provisions”, and shall apply with similar effect during the pendency of multiple Limited Condition Transactions such that each of the possible scenarios is separately tested. Notwithstanding anything to the contrary herein, in no event shall there be more than two Limited Condition Transactions at any time outstanding.
Appears in 1 contract
Sources: Credit Agreement (ASGN Inc)
Limited Condition Transactions. In the event that the Borrower Borrowing Agent notifies the Administrative Agent in writing that any proposed Specified Transaction acquisition or investment is a Limited Condition Transaction and that the Borrower Borrowing Agent wishes to test the conditions to such Specified Transaction acquisition or determine investment and, if applicable and solely with respect to an acquisition, the amount or availability of the Incremental Facility Amount or any other basket based on Consolidated EBITDA set forth in the Loan Documents Indebtedness that is to be used to finance such acquisition in accordance with this Section 1.131.8, then the following provisions shall apply:apply (other than with respect to any Incremental Loans and/or Incremental Commitments pursuant to Section 3.6 provided in connection with such acquisition if specified otherwise by the Incremental Lenders’ Incremental Loans and/or Incremental Commitments, as applicable):
(a) any condition to such Limited Condition Transaction or or, solely with respect to the amount or availability of any Incremental Loans that are used to finance an acquisition, such Limited Condition Transaction Indebtedness that requires that no Default or Event of Default shall have occurred and be continuing at the time of such Limited Condition Transaction or the availability incurrence of such Incremental LoansIndebtedness, shall be satisfied if (i) no Default or Event of Default shall have occurred and be continuing at the time of the execution (the “LCT Test Date”) of the definitive purchase agreement, merger agreement agreement, or other definitive agreement governing such Limited Condition Transaction (any such agreement agreement, a “Limited Condition Transaction Agreement”) and (ii) no Specified Event of Default shall have occurred and be continuing both immediately before and immediately after giving effect to such Limited Condition Transaction and all other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewithsuch Indebtedness);
(b) any condition to such Limited Condition Transaction or such Incremental Loans Indebtedness that the representations and warranties in this Agreement and the other Loan Documents shall be true and correct at the time of consummation of such Limited Condition Transaction or the incurrence of such Indebtedness shall be deemed satisfied ifif (i) all representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects (except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects) as of the LCT Test Date, or if such representation speaks as of an earlier date, as of such earlier date and (ii) as of the date of consummation of such Limited Condition Transaction, (A) the Specified Acquisition representations and warranties under the relevant definitive agreement governing such Limited Condition Transaction as are material to the lenders providing such Indebtedness (including, if applicable, the Lenders) shall be true and correct, but only to the extent that the Borrowers and their respective Subsidiaries have the right to terminate its obligations under such agreement or otherwise decline to close such Limited Condition Transaction as a result of a breach of such representations and warranties or the failure of those representations and warranties to be true and correct and (B) certain of the representations and warranties in this Agreement Representations and the Specified Representations other Loan Documents which are customary for similar “funds certain” financings and required by the lenders (including, if applicable, the Lenders) providing such Indebtedness shall be true and correct in all material respects (except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects);
(c) any financial ratio test or condition or basket to be tested in connection with such Limited Condition Transaction and the availability of such Incremental Loans (including the calculation of the Incremental Facility Amount) Indebtedness will be tested as of the LCT Test Date, in each case, case after giving effect to the relevant Limited Condition Transaction and all other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewithany Indebtedness), on a Pro Forma Basis pro forma basis where applicable, and, for the avoidance of doubt, (i) such ratios and baskets shall not be tested at the time of consummation of such Limited Condition Transaction and (ii) if any of such ratios are exceeded or conditions are not met following the LCT Test Date, but prior to the closing of such Limited Condition Transaction, as a result of fluctuations in such ratio or amount (including due to fluctuations in Consolidated Adjusted EBITDA of the Borrower Borrowers or the Person subject to such Limited Condition Transaction), at or prior to the consummation of the relevant transaction or action, such ratios will not be deemed to have been exceeded and such conditions will not be deemed unmet as a result of such fluctuations solely for purposes of determining whether the relevant transaction or action is permitted to be consummated or taken;; and
(d) except as provided in the next sentence, in connection with any subsequent calculation of any ratio or basket on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated and (ii) the date that the relevant Limited Condition Transaction Agreement is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or basket shall be calculated (i) on a Pro Forma Basis pro forma basis assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness Indebtedness) have been consummated and all related Acquisitions, Investments (ii) assuming such Limited Condition Transaction and other transactions consummated (or to be consummated) in connection therewiththerewith (including the incurrence or assumption of Indebtedness) have not been consummated. Notwithstanding the foregoing, any calculation of a ratio in connection with determining the Applicable Margin and determining whether or not the Borrower is in compliance with the financial covenants set forth in Section 9.15 shall, in each case shall be calculated assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewithIndebtedness) have not been consummated. The foregoing provisions are collectively referred to as the “Limited Condition Transaction Provisions”, and shall apply with similar effect during the pendency of multiple Limited Condition Transactions such that each of the possible scenarios is separately tested.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Construction Partners, Inc.)
Limited Condition Transactions. In the event that the Borrower notifies the Administrative Agent in writing that any proposed Specified Transaction Acquisition or Investment is a Limited Condition Transaction and that the Borrower wishes to test the conditions to such Specified Transaction Acquisition and the Indebtedness (other than any Revolving Credit Increase) that is to be used to finance such Acquisition or determine the amount or availability of the Incremental Facility Amount or any other basket based on Consolidated EBITDA set forth in the Loan Documents Investment in accordance with this Section 1.131.12, then, so long as agreed to by the Administrative Agent and the lenders providing such Indebtedness, the following provisions shall apply:
(a) any condition to such Limited Condition Transaction or to the amount or availability of any Incremental Loans that are used to finance such Limited Condition Transaction Indebtedness that requires that no Default or Event of Default shall have occurred and be continuing at the time of such Limited Condition Transaction or the availability incurrence of such Incremental LoansIndebtedness, shall be satisfied if (i) no Default or Event of Default shall have occurred and be continuing at the time of the execution (the “LCT Test Date”) of the definitive purchase agreement, merger agreement or other definitive acquisition agreement governing such Limited Condition Transaction (any such agreement the “Limited Condition Transaction AgreementLCT Test Date”) and (ii) no Specified Event of Default under any of Section 9.1(a), 9.1(g), 9.1(h) or 9.1(i) shall have occurred and be continuing both immediately before and immediately after giving effect to such Limited Condition Transaction and all other transactions any Indebtedness incurred in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewithany such additional Indebtedness);
(b) any condition to such Limited Condition Transaction or such Incremental Loans Indebtedness that the representations and warranties in this Agreement and the other Loan Documents shall be true and correct at the time of consummation of such Limited Condition Transaction or the incurrence of such Indebtedness shall be deemed satisfied ifif (i) all representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects (except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects) as of the LCT Test Date, or if such representation speaks as of an earlier date, as of such earlier date and (ii) as of the date of consummation of such Limited Condition Transaction, (A) the Specified Acquisition representations and warranties under the relevant definitive agreement governing such Limited Condition Transaction as are material to the lenders providing such Indebtedness shall be true and correct, but only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations under such agreement or otherwise decline to close such Limited Condition Transaction as a result of a breach of such representations and warranties or the failure of those representations and warranties to be true and correct and (B) certain of the representations and warranties in this Agreement Representations and the Specified Representations other Loan Documents which are customary for similar “funds certain” financings and required by the lenders providing such Indebtedness shall be true and correct in all material respects (except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects);
(c) any financial ratio test or condition or basket to be tested in connection with such Limited Condition Transaction and the availability of such Incremental Loans (including the calculation of the Incremental Facility Amount) Indebtedness will be tested as of the LCT Test Date, in each case, after giving effect to the relevant Limited Condition Transaction and all other transactions in connection therewith (including the related incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith)202564162_8 Indebtedness, on a Pro Forma Basis pro forma basis where applicable, and, for the avoidance of doubt, (i) such ratios and baskets shall not be tested at the time of consummation of such Limited Condition Transaction and (ii) if any of such ratios are exceeded or conditions are not met following the LCT Test Date, but prior to the closing of such Limited Condition Transaction, as a result of fluctuations in such ratio or amount (including due to fluctuations in Consolidated EBITDA of the Borrower Consolidated Group or the Person subject to such Limited Condition Transaction), at or prior to the consummation of the relevant transaction or action, such ratios will not be deemed to have been exceeded and such conditions will not be deemed unmet as a result of such fluctuations solely for purposes of determining whether the relevant transaction or action is permitted to be consummated or taken;
(d) except as provided in the next sentence, in connection with any subsequent calculation of any ratio or basket on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated and (ii) the date that the relevant definitive agreement for such Limited Condition Transaction Agreement is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or basket shall be calculated (i) on a Pro Forma Basis pro forma basis assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness Indebtedness) have been consummated and all related Acquisitions, Investments (ii) assuming such Limited Condition Transaction and other transactions consummated (or to be consummated) in connection therewiththerewith (including the incurrence or assumption of Indebtedness) have not been consummated. Notwithstanding the foregoing, any calculation of a ratio in connection with determining the Applicable Margin and determining whether or not the Borrower is in compliance with the financial covenants set forth in Section 9.15 8.1 shall, in each case be calculated assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewithIndebtedness) have not been consummated. ; and
(e) The foregoing provisions are collectively referred to as the “Limited Condition Transaction Provisions”, and shall apply with similar effect during the pendency of multiple Limited Condition Transactions such that each of the possible scenarios is separately tested.
Appears in 1 contract
Limited Condition Transactions. In the event that the Borrower Company notifies the Administrative Agent in writing that any proposed Specified Transaction Permitted Acquisition or other permitted Investment is a Limited Condition Transaction and that the Borrower Company wishes to test the conditions to such Specified Transaction Permitted Acquisition or determine Investment and the amount Additional Term Loans that are used to finance such Permitted Acquisition or availability of the Incremental Facility Amount or any other basket based on Consolidated EBITDA set forth in the Loan Documents Investment in accordance with this Section 1.13Section, then, so long as agreed to by the Lenders providing such Additional Term Loans, the following provisions shall apply:
: (a) any condition to such Limited Condition Transaction Permitted Acquisition or to the amount Investment or availability of any Incremental such Additional Term Loans that are used to finance such Limited Condition Transaction that requires that no Default or Event of Default shall have occurred and -67- 105376510 be continuing at the time of such Limited Condition Transaction Permitted Acquisition or Investment or the availability incurrence of such Incremental Loans, Additional Term Loans (including availability pursuant to Section 3.2) shall be satisfied if (i) no Default or Event of Default shall have occurred and be continuing at the time of the execution (the “LCT Test Date”) of the definitive purchase agreement, merger agreement or other definitive acquisition agreement governing such Limited Condition Transaction (any such agreement “Limited Condition Transaction Agreement”) Permitted Acquisition or Investment and (ii) no Specified Event of Default under any of Sections 8.1(a), 8.1(f) or 8.1(g) shall have occurred and be continuing both immediately before and immediately after giving effect to such Limited Condition Transaction Permitted Acquisition or Investment and all other transactions any Indebtedness incurred or assumed in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewithany Additional Term Loans);
; (b) any condition to such Limited Condition Transaction Permitted Acquisition or Investment or such Incremental Additional Term Loans that the representations and warranties contained herein and in this Agreement and the other Loan Credit Documents shall be true and correct at the time of consummation of such Limited Condition Transaction Permitted Acquisition or Investment or the incurrence of such Indebtedness Additional Term Loans (including availability pursuant to Section 3.2) shall be deemed satisfied ifsubject to customary “SunGard” or other customary applicable “certain funds” conditionality provisions (including, as of without limitation, a condition that the date of consummation of representations and warranties under the relevant agreements relating to such Limited Condition TransactionTransaction as are material to the Administrative Agent or the Lenders providing such Additional Term Loans shall be true and correct, but only to the Specified Acquisition Agreement Representations extent that Company or its applicable Subsidiary has the right to terminate its obligations under such agreement as a result of a breach of such representations and warranties or the Specified Representations failure of those representations and warranties to be true and correct), so long as all representations and warranties contained herein and in the other Credit Documents are true and correct in all material respects (except for any representation and warranty that is qualified by materiality at the time of execution of the definitive purchase agreement, merger agreement or reference to Material Adverse Effect, which other acquisition agreement governing such representation and warranty shall be true and correct in all respects);
Permitted Acquisition or Investment; (c) any financial ratio test or condition condition, may upon the written election of the Company delivered to the Administrative Agent prior to the execution of the definitive purchase agreement, merger agreement or basket to other acquisition agreement governing such Permitted Acquisition or Investment, be tested in connection with either (i) upon the execution of the definitive purchase agreement, merger agreement or other acquisition agreement governing such Limited Condition Transaction and Permitted Acquisition or Investment or (ii) upon the availability consummation of such Incremental Loans (including the calculation Permitted Acquisition or Investment and related incurrence of the Incremental Facility Amount) will be tested as of the LCT Test Datesuch Additional Term Loans, in each case, after giving effect to the relevant Limited Condition Transaction such Permitted Acquisition or Investment and all other transactions Indebtedness incurred or assumed in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewithany Additional Term Loans), on a Pro Forma Basis where applicable, and, for Basis; provided that the avoidance of doubt, (ifailure to deliver a notice under this Section 1.11(c) such ratios and baskets shall not be tested at the time of consummation of such Limited Condition Transaction and (ii) if any of such ratios are exceeded or conditions are not met following the LCT Test Date, but prior to the closing date of such Limited Condition Transaction, as a result of fluctuations in such ratio or amount (including due to fluctuations in Consolidated EBITDA execution of the Borrower definitive purchase agreement, merger agreement or the Person subject to other acquisition agreement governing such Limited Condition Transaction), at Permitted Acquisition or prior to the consummation of the relevant transaction or action, such ratios will not Investment shall be deemed an election to have been exceeded and such conditions will not be deemed unmet as a result test the applicable financial ratio under clause (c)(ii) of such fluctuations solely for purposes of determining whether the relevant transaction or action is permitted to be consummated or taken;
this Section; and; (d) except as provided in the next sentence, if the Company has made an election with respect to any Limited Condition Transaction to test a financial ratio test or condition at the time specified in clause (c)(i) of this Section, then in connection with any subsequent calculation of any ratio or basket on or following the relevant LCT Test Date date of execution of the definitive purchase agreement, merger agreement or other acquisition agreement governing such Limited Condition Transaction and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated and or (ii) the date that the relevant Limited Condition Transaction Agreement is terminated definitive purchase agreement, merger agreement or expires without consummation of such Limited Condition Transaction, any such ratio or basket shall be calculated on a Pro Forma Basis assuming other acquisition agreement governing such Limited Condition Transaction and other transactions in connection therewith -68- 105376510
(including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummatede) in connection therewith) have been consummated. Notwithstanding the foregoing, any calculation of a ratio in connection with determining the Applicable Margin and determining whether or not the Borrower is in compliance with the financial covenants set forth in Section 9.15 shall, in each case be calculated assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith) have not been consummated. The foregoing provisions are collectively referred to as the “Limited Condition Transaction Provisions”, and shall apply with similar effect during the pendency of multiple Limited Condition Transactions such that each of the possible scenarios is separately tested. Notwithstanding anything to the contrary herein, in no event shall there be more than two Limited Condition Transaction at any time outstanding.
Appears in 1 contract
Limited Condition Transactions. In the event that the Borrower Company notifies the Administrative Agent Required Holders in writing that any proposed Specified Transaction Acquisition or Investment is a Limited Condition Transaction and that the Borrower Company wishes to test the conditions to such Specified Transaction or determine Acquisition and the amount or availability Indebtedness (other than any Indebtedness that consists of the Incremental Facility Amount or any other basket based on Consolidated EBITDA set forth an increase in the Loan Documents revolving commitments under the Credit Agreement) that is to be used to finance such Acquisition or Investment in accordance with this Section 1.1310.17, then, so long as agreed to by the Required Holders and the lenders providing such Indebtedness, the following provisions shall apply:
(a) any condition to such Limited Condition Transaction or to the amount or availability of any Incremental Loans that are used to finance such Limited Condition Transaction Indebtedness that requires that no Default or Event of Default shall have occurred and be continuing at the time of such Limited Condition Transaction or the availability incurrence of such Incremental LoansIndebtedness, shall be satisfied if (i) no Default or Event of Default shall have occurred and be continuing at the time of the execution (the “LCT Test Date”) of the definitive purchase agreement, merger agreement or other definitive acquisition agreement governing such Limited Condition Transaction (any such agreement the “Limited Condition Transaction AgreementLCT Test Date”) and (ii) no Specified Event of Default under any of Section 11(a), 11(b), 11(g) or 11(h) shall have occurred and be continuing both immediately before and immediately after giving effect to such Limited Condition Transaction and all other transactions any Indebtedness incurred in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewithany such additional Indebtedness);
(b) any condition to such Limited Condition Transaction or such Incremental Loans Indebtedness that the representations and warranties in this Agreement and the other Loan Note Documents shall be true and correct at the time of consummation of such Limited Condition Transaction or the incurrence of such Indebtedness shall be deemed satisfied ifif (i) all representations and warranties in this Agreement and the other Note Documents are true and correct in all material respects (except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects) as of the LCT Test Date, or if such representation speaks as of an earlier date, as of such earlier date and (ii) as of the date of consummation of such Limited Condition Transaction, (A) the Specified Acquisition representations and warranties under the relevant definitive agreement governing such Limited Condition Transaction as are material to the lenders providing such Indebtedness shall be true and correct, but only to the extent that the Company or its applicable Subsidiary has the right to terminate its obligations under such agreement or otherwise decline to close such Limited Condition Transaction as a result of a breach of such representations and warranties or the failure of those representations and warranties to be true and correct and (B) certain of the representations and warranties in this Agreement Representations and the Specified Representations other Note Documents which are customary for similar “funds certain” financings and required by the lenders providing such Indebtedness shall be true and correct in all material respects (except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects);
(c) any financial ratio test or condition or basket to be tested in connection with such Limited Condition Transaction and the availability of such Incremental Loans (including the calculation of the Incremental Facility Amount) Indebtedness will be tested as of the LCT Test Date, in each case, after giving effect to the relevant Limited Condition Transaction and all other transactions in connection therewith (including the related incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith)Indebtedness, on a Pro Forma Basis pro forma basis where applicable, and, for the avoidance of doubt, (i) such ratios and baskets shall not be tested at the time of consummation of such Limited Condition Transaction and (ii) if any of such ratios are exceeded or conditions are not met following the LCT Test Date, but prior to the closing of such Limited Condition Transaction, as a result of fluctuations in such ratio or amount (including due to fluctuations in Consolidated EBITDA of the Borrower Consolidated Group or the Person subject to such Limited Condition Transaction), at or prior to the consummation of the relevant transaction or action, such ratios will not be deemed to have been exceeded and such conditions will not be deemed unmet as a result of such fluctuations solely for purposes of determining whether the relevant transaction or action is permitted to be consummated or taken;
(d) except as provided in the next sentence, in connection with any subsequent calculation of any ratio or basket on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated and (ii) the date that the relevant definitive agreement for such Limited Condition Transaction Agreement is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or basket shall be calculated (i) on a Pro Forma Basis pro forma basis assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness Indebtedness) have been consummated and all related Acquisitions, Investments (ii) assuming such Limited Condition Transaction and other transactions consummated (or to be consummated) in connection therewiththerewith (including the incurrence or assumption of Indebtedness) have not been consummated. Notwithstanding the foregoing, any calculation of a ratio in connection with determining the Applicable Margin Leverage Fee and determining whether or not the Borrower Company is in compliance with the financial covenants set forth in Section 9.15 10.1 shall, in each case be calculated assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewithIndebtedness) have not been consummated. ; and
(e) The foregoing provisions are collectively referred to as the “Limited Condition Transaction Provisions”, and shall apply with similar effect during the pendency of multiple Limited Condition Transactions such that each of the possible scenarios is separately tested.
Appears in 1 contract
Sources: Note Purchase and Private Shelf Agreement (MGP Ingredients Inc)
Limited Condition Transactions. In the event that the Borrower Company notifies the Administrative Agent in writing that any proposed Specified Transaction Acquisition is a Limited Condition Transaction and that the Borrower Company wishes to test the conditions to such Specified Transaction Acquisition, and the Indebtedness under Section 7.03(r) that is to be used to finance such Acquisition or determine the amount or availability of the Incremental Facility Amount or any other basket based on Consolidated EBITDA set forth in the Loan Documents Investment in accordance with this Section 1.131.12, then, so long as agreed to by the Administrative Agent and the lenders providing such Indebtedness, the following provisions shall apply:
(a) any condition to such Limited Condition Transaction or to the amount or availability of any Incremental Loans that are used to finance such Limited Condition Transaction Indebtedness that requires that no Default or Event of Default shall have occurred and be continuing at the time of such Limited Condition Transaction or the availability incurrence of such Incremental LoansIndebtedness, shall be satisfied if (i) no Default or Event of Default shall have occurred and be continuing at the time of the execution of the definitive agreement governing such Limited Condition Transaction (the “LCT Test Date”) of the definitive purchase agreement, merger agreement or other definitive agreement governing such Limited Condition Transaction (any such agreement “Limited Condition Transaction Agreement”) and (ii) no Specified Event of Default shall have occurred and be continuing both immediately before and immediately after giving effect to such Limited Condition Transaction and all other transactions any Indebtedness incurred in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewithany such additional Indebtedness);
(b) any condition to such Limited Condition Transaction or such Incremental Loans that the representations and warranties in this Agreement and the other Loan Documents shall be true and correct at the time of consummation of such Limited Condition Transaction or the incurrence of such Indebtedness shall be deemed satisfied if, as of the date of consummation of such Limited Condition Transaction, the Specified Acquisition Agreement Representations and the Specified Representations are true and correct in all material respects (except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects);
(c) any financial ratio test or condition or basket to be tested in connection with such Limited Condition Transaction and the availability of such Incremental Loans (including the calculation of the Incremental Facility Amount) Indebtedness will be tested as of the LCT Test Date, in each case, after giving effect to the relevant Limited Condition Transaction and all other transactions in connection therewith (including the any related incurrence or assumption of Indebtedness and all related AcquisitionsIndebtedness, Investments and other transactions consummated (or to be consummated) in connection therewith), calculated on a Pro Forma Basis pursuant to Section 1.09, where applicable, and, for the avoidance of doubt, (i) such ratios and baskets shall not be tested at the time of consummation of such Limited Condition Transaction and (ii) if any of such ratios are exceeded or conditions are not met following the LCT Test Date, but prior to the closing of such Limited Condition Transaction, as a result of fluctuations in such ratio or amount (including due to fluctuations in Consolidated EBITDA of the Borrower or the Person subject to such Limited Condition Transaction)amount, at or prior to the consummation of the relevant transaction or action, such ratios will not be deemed to have been exceeded and such conditions will not be deemed unmet as a result of such fluctuations solely for purposes of determining whether the relevant transaction or action is permitted to be consummated or taken;; and
(dc) except as provided in the next sentence, in connection with any subsequent calculation of any ratio or basket on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated and (ii) the date that the relevant definitive agreement for such Limited Condition Transaction Agreement is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or basket shall be calculated both (i) on a Pro Forma Basis pursuant to Section 1.09 assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments the use of proceeds thereof) have been consummated and (ii) assuming such Limited Condition Transaction and other transactions consummated (or to be consummated) in connection therewiththerewith (including the incurrence or assumption of Indebtedness and the use of proceeds thereof) have not been consummated. Notwithstanding the foregoing, any calculation of a ratio in connection with determining the Applicable Margin Rate and determining whether or not the Borrower Company is in compliance with the financial covenants covenant set forth in Section 9.15 7.09 shall, in each case case, be calculated assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewiththe use of proceeds thereof) have not been consummated. The foregoing provisions are collectively referred to as the “Limited Condition Transaction Provisions”, and shall apply with similar effect during the pendency of multiple Limited Condition Transactions such that each of the possible scenarios is separately tested.
Appears in 1 contract
Sources: Term Loan Agreement (Mastec Inc)
Limited Condition Transactions. In the event that the Borrower Company notifies the Administrative Agent in writing that any proposed Specified Transaction Acquisition is a Limited Condition Transaction and that the Borrower Company wishes to test the conditions to such Specified Transaction Acquisition, and the Indebtedness under Section 7.03(r) that is to be used to finance such Acquisition or determine the amount or availability of the Incremental Facility Amount or any other basket based on Consolidated EBITDA set forth in the Loan Documents Investment in accordance with this Section 1.131.12, then, so long as agreed to by the Administrative Agent and the lenders providing such Indebtedness, the following provisions shall apply:
(a) any condition to such Limited Condition Transaction or to the amount or availability of any Incremental Loans that are used to finance such Limited Condition Transaction Indebtedness that requires that no Default or Event of Default shall have occurred and be continuing at the time of such Limited Condition Transaction or the availability incurrence of such Incremental LoansIndebtedness, shall be satisfied if (i) no Default or Event of Default shall have occurred and be continuing at the time of the execution of the definitive agreement governing such Limited Condition Transaction (the “LCT Test Date”) of the definitive purchase agreement, merger agreement or other definitive agreement governing such Limited Condition Transaction (any such agreement “Limited Condition Transaction Agreement”) and (ii) no Specified Event of Default shall have occurred and be continuing both immediately before and immediately after giving effect to such Limited Condition Transaction and all other transactions any Indebtedness incurred in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewithany such additional Indebtedness);
(b) any condition to such Limited Condition Transaction or such Incremental Loans Indebtedness that the representations and warranties in this Agreement and the other Loan Documents shall be true and correct at the time of consummation of such Limited Condition Transaction or the incurrence of such Indebtedness shall be deemed satisfied ifif (i) all representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects as of the LCT Test Date, except that (A) if a qualifier relating to materiality, Material Adverse Effect or a similar concept applies, such representation or warranty shall be required to be true and correct in all respects, (B) to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date (except that if a qualifier relating to materiality, Material Adverse Effect or a similar concept applies, such representation or warranty shall be required to be true and correct in all respects as of such earlier date), and (C) for purposes of this Section 1.12, the representations and warranties contained in subsections (a), (b) and (c) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01, and (ii) as of the date of consummation of such Limited Condition Transaction, (A) the Specified Acquisition representations and warranties under the relevant definitive agreement governing such Limited Condition Transaction as are material to the lenders providing such Indebtedness shall be true and correct, but only to the extent that the Company or its applicable Subsidiary has the right to terminate its obligations under such agreement or otherwise decline to close such Limited Condition Transaction as a result of a breach of such representations and warranties or the failure of those representations and warranties to be true and correct and (B) certain of the representations and warranties in this Agreement Representations and the Specified Representations other Loan Documents which are customary for similar “funds certain” financings and required by the lenders providing such Indebtedness shall be true and correct in all material respects, except that (I) if a qualifier relating to materiality, Material Adverse Effect or a similar concept applies, such representation or warranty shall be required to be true and correct in all respects, (II) to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date (except for any representation and warranty that is qualified by materiality or reference if a qualifier relating to materiality, Material Adverse EffectEffect or a similar concept applies, which such representation and or warranty shall be required to be true and correct in all respectsrespects as of such earlier date), and (III) for purposes of this Section 1.12, the representations and warranties contained in subsections (a), (b) and (c) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01;
(c) any financial ratio test or condition or basket to be tested in connection with such Limited Condition Transaction and the availability of such Incremental Loans (including the calculation of the Incremental Facility Amount) Indebtedness will be tested as of the LCT Test Date, in each case, after giving effect to the relevant Limited Condition Transaction and all other transactions in connection therewith (including the any related incurrence or assumption of Indebtedness and all related AcquisitionsIndebtedness, Investments and other transactions consummated (or to be consummated) in connection therewith), calculated on a Pro Forma Basis pursuant to Section 1.09, where applicable, and, for the avoidance of doubt, (i) such ratios and baskets shall not be tested at the time of consummation of such Limited Condition Transaction and (ii) if any of such ratios are exceeded or conditions are not met following the LCT Test Date, but prior to the closing of such Limited Condition Transaction, as a result of fluctuations in such ratio or amount (including due to fluctuations in Consolidated EBITDA of the Borrower or the Person subject to such Limited Condition Transaction)amount, at or prior to the consummation of the relevant transaction or action, such ratios will not be deemed to have been exceeded and such conditions will not be deemed unmet as a result of such fluctuations solely for purposes of determining whether the relevant transaction or action is permitted to be consummated or taken;; and
(d) except as provided in the next sentence, in connection with any subsequent calculation of any ratio or basket on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated and (ii) the date that the relevant definitive agreement for such Limited Condition Transaction Agreement is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or basket shall be calculated both (i) on a Pro Forma Basis pursuant to Section 1.09 assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments the use of proceeds thereof) have been consummated and (ii) assuming such Limited Condition Transaction and other transactions consummated (or to be consummated) in connection therewiththerewith (including the incurrence or assumption of Indebtedness and the use of proceeds thereof) have not been consummated. Notwithstanding the foregoing, any calculation of a ratio in connection with determining the Applicable Margin Rate and determining whether or not the Borrower Company is in compliance with the financial covenants covenant set forth in Section 9.15 7.09 shall, in each case case, be calculated assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewiththe use of proceeds thereof) have not been consummated. The foregoing provisions are collectively referred to as the “Limited Condition Transaction Provisions”, and shall apply with similar effect during the pendency of multiple Limited Condition Transactions such that each of the possible scenarios is separately tested.
Appears in 1 contract
Sources: Credit Agreement (Mastec Inc)
Limited Condition Transactions. (a) In the event that the Borrower notifies the Administrative Agent connection with any action being taken in writing that any proposed Specified Transaction is connection with a Limited Condition Transaction and Transaction, for purposes of determining compliance with any provision of this Agreement which requires that no Default, Event of Default or specified Event of Default, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall, at the Borrower wishes to test the conditions to such Specified Transaction or determine the amount or availability option of the Incremental Facility Amount Borrowers, be deemed satisfied, so long as no Default, Event of Default or any other basket based specified Event of Default, as applicable, exists on Consolidated EBITDA set forth in the Loan Documents in accordance with this Section 1.13date the definitive agreements or binding obligations for such Limited Condition Transaction (each such definitive agreement or binding obligation, the following provisions shall apply:
(aa “Limited Condition Transaction Agreement”) any condition are entered into after giving pro forma effect to such Limited Condition Transaction or and the actions to be taken in connection therewith (including any incurrence of Indebtedness and the amount or availability use of any Incremental Loans that are used to finance proceeds thereof) as if such Limited Condition Transaction that requires that no and other actions had occurred on such date. For the avoidance of doubt, if the Borrower Representative has delivered an LCT Election (as defined below), and any Default or Event of Default occurs following the date the applicable Limited Condition Transaction Agreements were entered into and prior to the consummation of such Limited Condition Transaction, any such Default or Event of Default shall be deemed to not have occurred and or be continuing at the time solely for purposes of determining whether any action being taken in connection with such Limited Condition Transaction is permitted hereunder. Notwithstanding the foregoing, in no event shall any Event of Default described in clause (a), (b), (h) or (i) of Section 8.1 exist immediately prior to or after giving effect to any Limited Condition Transaction.
(b) In connection with a Limited Condition Transaction or any action being taken solely in connection with a Limited Condition Transaction, for purposes of:
(i) determining compliance with any provision of this Agreement which requires the calculation of the Consolidated Net Leverage Ratio, Consolidated First Lien Net Leverage Ratio and Consolidated Secured Net Leverage Ratio (but excluding any calculation for purposes of determining the Applicable Margin or actual compliance with Section 7);
(ii) determining compliance with any representations, warranties, defaults or Events of Default (other than for purposes of borrowings of Revolving Loans); or
(iii) testing availability under baskets (including any baskets in respect of any Incremental Facility) set forth in this Agreement, in each case, at the option of the Borrower Representative (the Borrower Representative’s election to exercise such Incremental Loansoption in connection with any Limited Condition Transaction, an “LCT Election”), the date of determination of whether a Limited Condition Transaction or any such action is permitted hereunder, shall be satisfied if deemed to be (iA) no Default in the case of any acquisition or Event investment, the date the definitive agreements for such Limited Condition Transaction are entered into or (B) in the case of Default shall have occurred any redemption, repurchase, defeasance, satisfaction and be continuing at discharge or repayment of Indebtedness, the time date irrevocable notice in advance of the execution such redemption, repurchase, defeasance, satisfaction and discharge or repayment is delivered (the “LCT Test Date”) of ), and if, after giving pro forma effect to the definitive purchase agreement, merger agreement or other definitive agreement governing such Limited Condition Transaction (any such agreement “Limited Condition Transaction Agreement”) and (ii) no Specified Event of Default shall have occurred and be continuing both immediately before and immediately after giving effect to such Limited Condition Transaction and all other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith);
(b) any condition to such Limited Condition Transaction or such Incremental Loans that the representations and warranties in this Agreement and the other Loan Documents shall be true and correct at the time of consummation of such Limited Condition Transaction or the incurrence of such Indebtedness shall be deemed satisfied if, as of the date of consummation of such Limited Condition Transaction, the Specified Acquisition Agreement Representations and the Specified Representations are true and correct in all material respects (except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects);
(c) any financial ratio test or condition or basket to be tested in connection with such Limited Condition Transaction and the availability of such Incremental Loans (including the calculation of the Incremental Facility Amount) will be tested as of the LCT Test Date, in each case, after giving effect to the relevant Limited Condition Transaction and all other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith), on a Pro Forma Basis where applicable, andincluding, for the avoidance of doubt, (i) such ratios and baskets shall not be tested at the time Consolidated EBITDA of consummation of such Limited Condition Transaction and (ii) if any of such ratios are exceeded or conditions are not met following the LCT Test Date, but prior attributable to the closing of target companies or assets associated with any such Limited Condition Transaction) and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) as if they had occurred at the beginning of the most recent four consecutive Fiscal Quarters ending prior to the LCT Test Date for which financial statements have been delivered to the Administrative Agent, the applicable Company could have taken such action on the relevant LCT Test Date in compliance with such ratio or basket, such ratio or basket shall be deemed to have been complied with. For the avoidance of doubt, if the Borrower Representative has made an LCT Election and any of the ratios or baskets for which compliance was determined or tested as of the LCT Test Date are exceeded as a result of fluctuations in any such ratio or amount (including due to fluctuations in Consolidated EBITDA of the Borrower or the Person subject to such Limited Condition Transaction)basket, at or prior to the consummation of the relevant transaction or action, such ratios basket or ratio will not be deemed to have been exceeded and such conditions will not be deemed unmet as a result of such fluctuations solely for purposes of determining whether the relevant transaction or action actions is permitted to be consummated or taken;
(d) except as provided ; provided, that for any determination to be made pursuant to this Section 1.7, the Borrower Representative may, by delivering a notice in writing to the next sentenceAdministrative Agent, elect to recalculate all such ratios, tests or baskets in respect of the last twelve fiscal months of the Borrowers for which monthly financial statements are available and have been delivered to the Administrative Agent in which case such date of redetermination shall thereafter be deemed to be the applicable LCT Test Date. If the Borrower Representative has made an LCT Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any the Financial Covenant, ratio or basket availability on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated and (ii) or the date that the relevant definitive agreement for such Limited Condition Transaction Agreement is terminated or expires without consummation of such Limited Condition Transaction, any such Financial Covenant, ratio or basket availability shall be calculated required to be satisfied both (x) on a Pro Forma Basis pro forma basis assuming such Limited Condition Transaction and other transactions in connection therewith (including the any pro forma increase in Consolidated EBITDA resulting from such Limited Condition Transaction, any incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewiththe use of proceeds thereof) have been consummated. Notwithstanding the foregoing, any calculation of a ratio in connection with determining the Applicable Margin and determining whether or not the Borrower is in compliance with the financial covenants set forth in Section 9.15 shall, in each case be calculated (y) assuming such Limited Condition Transaction and other transactions in connection therewith (including the any such pro forma increase in Consolidated EBITDA, incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewiththe use of proceeds thereof) have not been consummated. The foregoing provisions are collectively referred ; provided that for purposes of the definition of Excess Cash Flow the calculation of Consolidated Net Income shall not include the Consolidated Net Income of the Person or assets to as be acquired (this Section 1.7, collectively, the “Limited Condition Transaction ProvisionsProvision”, and shall apply with similar effect during the pendency of multiple Limited Condition Transactions such that each of the possible scenarios is separately tested).
Appears in 1 contract
Sources: Credit Agreement (Suja Life, Inc.)
Limited Condition Transactions. In the event that the Borrower notifies the Administrative Agent Lender in writing that any proposed Specified Transaction transaction is a Limited Condition Transaction and that the Borrower wishes to test the conditions to such Specified Limited Condition Transaction or determine the amount or availability of the Incremental Facility Amount or any other basket based on Consolidated EBITDA set forth in the Loan Documents in accordance with this Section 1.131.04, then, the following provisions shall apply:
(a) any condition to any such Limited Condition Transaction (including the incurrence or to the amount or availability issuance of any Incremental Loans that are used to finance Debt in connection with such Limited Condition Transaction Transaction) that requires that no Potential Event of Default or Event of Default shall have occurred and be continuing at the time of such Limited Condition Transaction or the availability of such Incremental LoansTransaction, shall be satisfied if (i) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time of the execution (the “LCT Test Date”) of the definitive purchase agreement, merger agreement or other definitive agreement governing such Limited Condition Transaction (or, in the case of any Restricted Payment, the date on which such agreement Restricted Payment is declared) (the “Limited Condition Transaction AgreementLCT Test Date”) and (ii) no Specified Event of Default under Section 7.01(a) or Section 7.01(f) shall have occurred and be continuing both immediately before and immediately after giving effect to such Limited Condition Transaction and all other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith)Transaction;
(b) any condition to such Limited Condition Transaction or such Incremental Loans that the representations and warranties in this Agreement and the other Loan Documents shall be true and correct at the time of consummation of such Limited Condition Transaction or the incurrence of such Indebtedness shall be deemed satisfied if, as of the date of consummation of such Limited Condition Transaction, the Specified Acquisition Agreement Representations and the Specified Representations are true and correct in all material respects (except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects);
(c) any financial ratio test or condition or basket to be tested in connection with such Limited Condition Transaction and the availability of such Incremental Loans (including the calculation of the Incremental Facility Amount) will be tested as of the LCT Test Date, in each case, after giving effect to the relevant such Limited Condition Transaction (including any incurrence or issuance of Debt and all the use of proceeds thereof) or other transactions transaction in connection therewith (including the incurrence or assumption of Indebtedness and all action or transaction related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith), thereto where applicable on a Pro Forma Basis where applicablepro forma basis, and, for the avoidance of doubt, (i) such ratios and baskets shall not be tested at the time of consummation of such Limited Condition Transaction and (ii) if any of such ratios are exceeded or conditions are not met following the LCT Test Date, but prior to the closing earlier of (x) the date on which such Limited Condition Transaction is consummated and (y) the date that the definitive agreement for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction (or the date for redemption, purchase, repayment or other Restricted Payment specified in an irrevocable notice is terminated or expires without consummation of such Limited Condition Transaction) (the “LCT Consummation Date”), as a result of fluctuations in such ratio or amount (including due to fluctuations in Consolidated EBITDA of the Borrower or the Person subject to such Limited Condition Transaction), at or prior to the consummation of the relevant transaction or action, such ratios will not be deemed to have been exceeded and such conditions will not be deemed unmet as a result of such fluctuations solely for purposes of determining whether the relevant transaction or action is permitted to be consummated or taken;
(dc) except as provided in the next sentence, in connection with any subsequent calculation of any ratio or basket on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated and (ii) the date that the relevant Limited Condition Transaction Agreement is terminated or expires without consummation of such Limited Condition TransactionLCT Consummation Date, any such ratio or basket shall be calculated on a Pro Forma Basis pro forma basis assuming such Limited Condition Transaction Transactions and other transactions in connection therewith (including the incurrence incurrence, issuance or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewithDebt) have been consummated. Notwithstanding the foregoing, any calculation of a ratio in connection with determining the Applicable Margin and determining whether or not the Borrower is in compliance with the financial covenants set forth in Section 9.15 6.03 shall, in each case be calculated assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewithDebt) have not been consummated. The foregoing provisions are collectively referred to as the “Limited Condition Transaction Provisions”, and shall apply with similar effect during the pendency of multiple Limited Condition Transactions such that each of the possible scenarios is separately tested.
Appears in 1 contract
Sources: Credit Agreement (Box Inc)
Limited Condition Transactions. In the event that the Borrower Company notifies the Administrative Agent in writing that any proposed Specified Transaction Acquisition or other Investment is a Limited Condition Transaction and that the Borrower Company wishes to test the conditions to such Specified Transaction Acquisition or determine Investment, as the amount case may be, and the Indebtedness under an Incremental Term Loan and/or Indebtedness under Section 7.03(r) that is to be used to finance such Acquisition or availability of the Incremental Facility Amount or any other basket based on Consolidated EBITDA set forth in the Loan Documents Investment in accordance with this Section 1.131.12, then, so long as agreed to by the Administrative Agent and the lenders providing such Indebtedness, the following provisions shall apply:
(a) any condition to such Limited Condition Transaction or to the amount or availability of any Incremental Loans that are used to finance such Limited Condition Transaction Indebtedness that requires that no Default or Event of Default shall have occurred and be continuing at the time of such Limited Condition Transaction or the availability incurrence of such Incremental LoansIndebtedness, shall be satisfied if (i) no Default or Event of Default shall have occurred and be continuing at the time of the execution of the definitive agreement governing such Limited Condition Transaction (the “LCT Test Date”) of the definitive purchase agreement, merger agreement or other definitive agreement governing such Limited Condition Transaction (any such agreement “Limited Condition Transaction Agreement”) and (ii) no Specified Event of Default shall have occurred and be continuing both immediately before and immediately after giving effect to such Limited Condition Transaction and all other transactions any Indebtedness incurred in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewithany such additional Indebtedness);
(b) any condition to such Limited Condition Transaction or such Incremental Loans Indebtedness that the representations and warranties in this Agreement and the other Loan Documents shall be true and correct at the time of consummation of such Limited Condition Transaction or the incurrence of such Indebtedness shall be deemed satisfied ifif (i) all representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects as of the LCT Test Date, except that (A) if a qualifier relating to materiality, Material Adverse Effect or a similar concept applies, such representation or warranty shall be required to be true and correct in all respects, (B) to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date (except that if a qualifier relating to materiality, Material Adverse Effect or a similar concept applies, such representation or warranty shall be required to be true and correct in all respects as of such earlier date), and (C) for purposes of this Section 1.12, the representations and warranties contained in subsections (a), (b) and (c) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01, and (ii) as of the date of consummation of such Limited Condition Transaction, (A) the Specified Acquisition representations and warranties under the relevant definitive agreement governing such Limited Condition Transaction as are material to the lenders providing such Indebtedness shall be true and correct, but only to the extent that the Company or its applicable Subsidiary has the right to terminate its obligations under such agreement or otherwise decline to close such Limited Condition Transaction as a result of a breach of such representations and warranties or the failure of those representations and warranties to be true and correct and (B) certain of the representations and warranties in this Agreement Representations and the Specified Representations other Loan Documents which are customary for similar “funds certain” financings and required by the lenders providing such Indebtedness shall be true and correct in all material respects, except that (I) if a qualifier relating to materiality, Material Adverse Effect or a similar concept applies, such representation or warranty shall be required to be true and correct in all respects, (II) to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date (except for any representation and warranty that is qualified by materiality or reference if a qualifier relating to materiality, Material Adverse EffectEffect or a similar concept applies, which such representation and or warranty shall be required to be true and correct in all respectsrespects as of 150575819 such earlier date), and (III) for purposes of this Section 1.12, the representations and warranties contained in subsections (a), (b) and (c) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01;
(c) any financial ratio test or condition or basket to be tested in connection with such Limited Condition Transaction and the availability of such Incremental Loans (including the calculation of the Incremental Facility Amount) Indebtedness will be tested as of the LCT Test Date, in each case, after giving effect to the relevant Limited Condition Transaction and all other transactions in connection therewith (including the related incurrence or assumption of Indebtedness and all related AcquisitionsIndebtedness, Investments and other transactions consummated (or to be consummated) in connection therewith), calculated on a Pro Forma Basis pursuant to Section 1.10, where applicable, and, for the avoidance of doubt, (i) such ratios and baskets shall not be tested at the time of consummation of such Limited Condition Transaction and (ii) if any of such ratios are exceeded or conditions are not met following the LCT Test Date, but prior to the closing of such Limited Condition Transaction, as a result of fluctuations in such ratio or amount (including due to fluctuations in Consolidated EBITDA of the Borrower or the Person subject to such Limited Condition Transaction)amount, at or prior to the consummation of the relevant transaction or action, such ratios will not be deemed to have been exceeded and such conditions will not be deemed unmet as a result of such fluctuations solely for purposes of determining whether the relevant transaction or action is permitted to be consummated or taken;; and
(d) except as provided in the next sentence, in connection with any subsequent calculation of any ratio or basket on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated and (ii) the date that the relevant definitive agreement for such Limited Condition Transaction Agreement is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or basket shall be calculated both (i) on a Pro Forma Basis pursuant to Section 1.10 assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments the use of proceeds thereof) have been consummated and (ii) assuming such Limited Condition Transaction and other transactions consummated (or to be consummated) in connection therewiththerewith (including the incurrence or assumption of Indebtedness and the use of proceeds thereof) have not been consummated. Notwithstanding the foregoing, any calculation of a ratio in connection with determining the Applicable Margin Rate and determining whether or not the Borrower Company is in compliance with the financial covenants set forth in Section 9.15 7.11 shall, in each case case, be calculated assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewiththe use of proceeds thereof) have not been consummated. The foregoing provisions are collectively referred to as the “Limited Condition Transaction Provisions”, and shall apply with similar effect during the pendency of multiple Limited Condition Transactions such that each of the possible scenarios is separately tested.. 150575819
Appears in 1 contract
Sources: Credit Agreement (Mastec Inc)
Limited Condition Transactions. In the event that the Borrower Company notifies the Administrative Agent in writing that any proposed Specified Transaction Acquisition or other Investment is a Limited Condition Transaction and that the Borrower Company wishes to test the conditions to such Specified Transaction Acquisition or determine Investment, as the amount case may be, and the Indebtedness under an Incremental Term Loan, Incremental Equivalent Indebtedness and/or Indebtedness under Section 7.03(j) that is to be used to finance such Acquisition or availability of the Incremental Facility Amount or any other basket based on Consolidated EBITDA set forth in the Loan Documents Investment in accordance with this Section 1.13, then, so long as agreed to by the Administrative Agent and the lenders providing such Indebtedness, the following provisions shall apply:
(a) any condition to such Limited Condition Transaction or to the amount or availability of any Incremental Loans that are used to finance such Limited Condition Transaction Indebtedness that requires that no Default or Event of Default shall have occurred and be continuing at the time of such Limited Condition Transaction or the availability incurrence of such Incremental LoansIndebtedness, shall 119889268 be satisfied if (i) no Default or Event of Default shall have occurred and be continuing at the time of the execution of the definitive agreement governing such Limited Condition Transaction (the “LCT Test Date”) of the definitive purchase agreement, merger agreement or other definitive agreement governing such Limited Condition Transaction (any such agreement “Limited Condition Transaction Agreement”) and (ii) no Specified Event of Default shall have occurred and be continuing both immediately before and immediately after giving effect to such Limited Condition Transaction and all other transactions any Indebtedness incurred in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewithany such additional Indebtedness);
(b) any condition to such Limited Condition Transaction or such Incremental Loans Indebtedness that the representations and warranties in this Agreement and the other Loan Documents shall be true and correct at the time of consummation of such Limited Condition Transaction or the incurrence of such Indebtedness shall be deemed satisfied ifif (i) all representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects as of the LCT Test Date, except that (A) if a qualifier relating to materiality, Material Adverse Effect or a similar concept applies, such representation or warranty shall be required to be true and correct in all respects, (B) to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date (except that if a qualifier relating to materiality, Material Adverse Effect or a similar concept applies, such representation or warranty shall be required to be true and correct in all respects as of such earlier date), and (C) for purposes of this Section 1.13, the representations and warranties contained in subsections (a), (b) and (c) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01, and (ii) as of the date of consummation of such Limited Condition Transaction, (A) the Specified Acquisition representations and warranties under the relevant definitive agreement governing such Limited Condition Transaction as are material to the lenders providing such Indebtedness shall be true and correct, but only to the extent that the Company or its applicable Subsidiary has the right to terminate its obligations under such agreement or otherwise decline to close such Limited Condition Transaction as a result of a breach of such representations and warranties or the failure of those representations and warranties to be true and correct and (B) certain of the representations and warranties in this Agreement Representations and the Specified Representations other Loan Documents which are customary for similar “funds certain” financings and required by the lenders providing such Indebtedness shall be true and correct in all material respects, except that (I) if a qualifier relating to materiality, Material Adverse Effect or a similar concept applies, such representation or warranty shall be required to be true and correct in all respects, (II) to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date (except for any representation and warranty that is qualified by materiality or reference if a qualifier relating to materiality, Material Adverse EffectEffect or a similar concept applies, which such representation and or warranty shall be required to be true and correct in all respectsrespects as of such earlier date), and (III) for purposes of this Section 1.13, the representations and warranties contained in subsections (a), (b) and (c) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01;
(c) any financial ratio test or condition or basket to be tested in connection with such Limited Condition Transaction and the availability of such Incremental Loans (including the calculation of the Incremental Facility Amount) Indebtedness will be tested as of the LCT Test Date, in each case, after giving effect to the relevant Limited Condition Transaction and all other transactions in connection therewith (including the related incurrence or assumption of Indebtedness and all related AcquisitionsIndebtedness, Investments and other transactions consummated (or to be consummated) in connection therewith), calculated on a Pro Forma Basis pursuant 119889268 to Section 1.10, where applicable, and, for the avoidance of doubt, (i) such ratios and baskets shall not be tested at the time of consummation of such Limited Condition Transaction and (ii) if any of such ratios are exceeded or conditions are not met following the LCT Test Date, but prior to the closing of such Limited Condition Transaction, as a result of fluctuations in such ratio or amount (including due to fluctuations in Consolidated EBITDA of the Borrower or the Person subject to such Limited Condition Transaction)amount, at or prior to the consummation of the relevant transaction or action, such ratios will not be deemed to have been exceeded and such conditions will not be deemed unmet as a result of such fluctuations solely for purposes of determining whether the relevant transaction or action is permitted to be consummated or taken;; and
(d) except as provided in the next sentence, in connection with any subsequent calculation of any ratio or basket on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated and (ii) the date that the relevant definitive agreement for such Limited Condition Transaction Agreement is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or basket shall be calculated both (i) on a Pro Forma Basis pursuant to Section 1.10 assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments the use of proceeds thereof) have been consummated and (ii) assuming such Limited Condition Transaction and other transactions consummated (or to be consummated) in connection therewiththerewith (including the incurrence or assumption of Indebtedness and the use of proceeds thereof) have not been consummated. Notwithstanding the foregoing, any calculation of a ratio in connection with determining the Applicable Margin Rate and determining whether or not the Borrower Company is in compliance with the financial covenants set forth in Section 9.15 7.11 shall, in each case case, be calculated assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewiththe use of proceeds thereof) have not been consummated. The foregoing provisions are collectively referred to as the “Limited Condition Transaction Provisions”, and shall apply with similar effect during the pendency of multiple Limited Condition Transactions such that each of the possible scenarios is separately tested.. 119889268
Appears in 1 contract
Sources: Credit Agreement (Mastec Inc)
Limited Condition Transactions. In the event that the Borrower notifies the Administrative Agent in writing that any proposed Specified Transaction Acquisition, Investment or redemption, repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness is a Limited Condition Transaction and that the Borrower wishes to test the conditions to such Specified Limited Condition Transaction and any Indebtedness (other than Revolving Loans or determine the amount or availability of the Incremental Facility Amount or Swingline Loans) being incurred substantially concurrently with such Limited Condition Transaction that is to be used to finance such Limited Condition Transaction and any other basket based on Consolidated EBITDA set forth related transaction costs and expenses incurred in the Loan Documents connection with such Limited Condition Transaction in accordance with this Section 1.13(such notification, a “LCT Election”), then, at the option of the Borrower, the following provisions shall apply:
(a) if agreed to by the applicable lenders providing such Indebtedness, any condition to such Limited Condition Transaction or to the amount or availability of any Incremental Loans that are used to finance such Limited Condition Transaction Indebtedness that requires that no Default or Event of Default shall have occurred and be continuing at the time of such Limited Condition Transaction or the availability incurrence of such Incremental LoansIndebtedness, shall be satisfied if (i) no Default or Event of Default shall have occurred and be continuing at the time of the execution of the definitive agreements governing such Limited Condition Transaction (such date, the “LCT Test Date”) of the definitive purchase agreement, merger agreement or other definitive agreement governing such Limited Condition Transaction (any such agreement “Limited Condition Transaction Agreement”) and (ii) no Specified Event of Default under any of Section 8.01(a), (f) or (g) shall have occurred and be continuing both immediately before and immediately after giving effect to such Limited Condition Transaction and all other transactions in connection therewith (including the incurrence or assumption of any Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) incurred in connection therewith);
(b) any financial ratio test (including any such test calculated in determining amounts under baskets) or financial condition to such Limited Condition Transaction or such Incremental Loans that the representations and warranties in this Agreement and the other Loan Documents shall be true and correct at the time of consummation of such Limited Condition Transaction or the incurrence of such Indebtedness shall be deemed satisfied if, as of tested on the date of consummation of such Limited Condition Transaction, the Specified Acquisition Agreement Representations and the Specified Representations are true and correct in all material respects (except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects)LCT Test Date;
(c) any financial ratio test or condition or basket to be tested in connection with such Limited Condition Transaction and the availability of such Incremental Loans (including the calculation of the Incremental Facility Amount) will be tested as of the LCT Test Date, in each case, after giving effect to the relevant Limited Condition Transaction and all other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith), on a Pro Forma Basis where applicable, and, for the avoidance of doubt, (i) such ratios and baskets shall not be tested at the time of consummation of such Limited Condition Transaction and (ii) if any of such ratios are exceeded or conditions are not met following the LCT Test Date, but prior to the closing of such Limited Condition Transaction, as a result of fluctuations in such ratio or amount (including due to fluctuations in Consolidated EBITDA of the Borrower or the Person subject to such Limited Condition Transaction), at or prior to the consummation of the relevant transaction or action, such ratios will not be deemed to have been exceeded and such conditions will not be deemed unmet as a result of such fluctuations solely for purposes of determining whether the relevant transaction or action is permitted to be consummated or taken;
(d) except as provided in the next sentence, if the Borrower has made an LCT Election, then in connection with any subsequent calculation of any ratio or basket on or following the relevant LCT Test Date with respect to such Limited Condition Transaction and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated and or (ii) the date that the relevant definitive agreement for such Limited Condition Transaction Agreement is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or basket shall be calculated required to be satisfied on a Pro Forma Basis pro forma basis assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewiththe use of proceeds thereof) have been consummated. Notwithstanding the foregoing, any calculation of a ratio in connection with (x) determining the Applicable Margin Rate and determining whether or not the Borrower is in compliance with the financial covenants set forth in Section 9.15 7.11 shall, in each case be calculated assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness Indebtedness) have not been consummated and all related Acquisitions, Investments (y) determining whether the Borrower or its Subsidiaries may make a Restricted Payment shall be calculated (1) on a pro forma basis assuming such Limited Condition Transaction and other transactions consummated (or to be consummated) in connection therewiththerewith (including the incurrence or assumption of Indebtedness and the use of proceeds thereof) have been consummated and (2) assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and the use of proceeds thereof) have not been consummated. The foregoing provisions For the avoidance of doubt, if the Borrower has made an LCT Election and any of the ratios or baskets for which compliance was determined or tested as of the LCT Test Date are collectively referred exceeded as a result of fluctuations in any such ratio or basket (including due to fluctuations of the target of any Limited Condition Transaction) after the LCT Test Date, but at or prior to the consummation of the Limited Condition Transaction, such basket or ratio will not be deemed to have been exceeded as a result of such fluctuations;
(d) with respect to any incurrence of Indebtedness, the “proceeds of which are being used to finance a substantially concurrent Acquisition (and the related transaction costs) that is a Limited Condition Transaction Provisionssubject to customary “funds certain provisions”, any requirement under this Agreement or any other Loan Document that the representations and shall apply with similar effect during warranties be true and correct as a condition precedent to such Acquisition or the pendency incurrence and the availability of multiple Limited Condition Transactions such Indebtedness may, if agreed to by the applicable lenders providing such Indebtedness, be limited to those representations and warranties, the accuracy of which is customarily included as a condition precedent to the incurrence or availability of third party acquisition financings that each are subject to customary “funds certain provisions” (including, without limitation, certain specified representations and warranties under this Agreement and the representations and warranties under the relevant agreement governing such Acquisition that are material to the lenders providing such Indebtedness to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations under such agreement or otherwise decline to close such Acquisition as a result of the possible scenarios is separately testedfailure of such representations and warranties to be true and correct), so long as all representations and warranties in this Agreement and the other Loan Documents are true and correct at the time of execution of the relevant agreement governing such Acquisition; and
(e) notwithstanding anything to the contrary in this Agreement or any other Loan Document, so long as no Default or Event of Default has occurred or would result therefrom, the Borrower may, upon at least two (2) Business Days’ (or such later time as agreed to by the Administrative Agent, in its sole discretion) written notice to the Administrative Agent, revoke any LCT Election made under this Section 1.09.
Appears in 1 contract
Limited Condition Transactions. In the event that the Borrower Company notifies the Administrative Agent in writing that any proposed Specified Transaction Acquisition or Investment is a Limited Condition Transaction and that the Borrower Company wishes to test the conditions to such Specified Transaction Acquisition or determine Investment and the amount Indebtedness in respect of any Incremental Term Loan Facility that is to be used to finance such Acquisition or availability of Investment (such Indebtedness, the Incremental Facility Amount or any other basket based on Consolidated EBITDA set forth in the Loan Documents “LCT Indebtedness”) in accordance with this Section 1.131.12, then, so long as agreed to by the Administrative Agent and the lenders providing such Indebtedness, the following provisions shall apply:
(a) any condition to such Limited Condition Transaction or to the amount or availability of any Incremental Loans that are used to finance such Limited Condition Transaction LCT Indebtedness that requires that no Default or Event of Default shall have occurred and be continuing at the time of such Limited Condition Transaction or the availability incurrence of such Incremental LoansLCT Indebtedness, shall be satisfied if (i) no Default or Event of Default shall have occurred and be continuing at the time of the execution (the “LCT Test Date”) of the definitive purchase agreement, merger agreement or other definitive acquisition agreement governing such Limited Condition Transaction (any such agreement the “Limited Condition Transaction AgreementLCT Test Date”) and (ii) no Specified Event of Default under any of Section 8.01(a) or 8.01(f), shall have occurred and be continuing both immediately before and immediately after giving effect to such Limited Condition Transaction and all other transactions any Indebtedness incurred in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewithany such additional LCT Indebtedness);
(b) any condition to such Limited Condition Transaction or such Incremental Loans LCT Indebtedness that the representations and warranties in this Agreement and the other Loan Documents shall be true and correct in all material respects at the time of consummation of such Limited Condition Transaction or the incurrence of such LCT Indebtedness shall be deemed satisfied ifif (i) all representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects (except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects) as of the LCT Test Date, or if such representation speaks as of an earlier date, as of such earlier date and (ii) as of the date of consummation of such Limited Condition Transaction, (A) the Specified Acquisition representations and warranties under the relevant definitive agreement governing such Limited Condition Transaction as are material to the lenders providing such LCT Indebtedness shall be true and correct in all material respects, but only to the extent that the Company or its applicable Subsidiary has the right to terminate its obligations under such agreement or otherwise decline to close such Limited Condition Transaction as a result of a breach of such representations and warranties or the failure of those representations and warranties to be true and correct and (B) certain of the representations and warranties in this Agreement Representations and the Specified Representations other Loan Documents which are customary for similar “funds certain” financings and required by the lenders providing such LCT Indebtedness shall be true and correct in all material respects (except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects);
(c) any financial ratio test or condition or basket to be tested in connection with such Limited Condition Transaction and the availability of such Incremental Loans (including the calculation of the Incremental Facility Amount) LCT Indebtedness will be tested as of the LCT Test Date, in each case, after giving effect to the relevant Limited Condition Transaction and all other transactions in connection therewith (including the related incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith)LCT Indebtedness, on a Pro Forma Basis pro forma basis consistent with Section 1.10 where applicable, and, for the avoidance of doubt, (i) such ratios and baskets shall not be tested at the time of consummation of such Limited Condition Transaction and (ii) if any of such ratios are exceeded or conditions are not met following the LCT Test Date, but prior to the closing of such Limited Condition Transaction, as a result of fluctuations in such ratio or amount (including due to fluctuations in Consolidated EBITDA of the Borrower Company or the Person subject to such Limited Condition Transaction), at or prior to the consummation of the relevant transaction or action, such ratios will not be deemed to have been exceeded and such conditions will not be deemed unmet as a result of such fluctuations solely for purposes of determining whether the relevant transaction or action is permitted to be consummated or taken;
(d) except as provided in the next sentence, in connection with any subsequent calculation of any ratio or basket on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated and (ii) the date that the relevant definitive agreement for such Limited Condition Transaction Agreement is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or basket shall be calculated (i) on a Pro Forma Basis pro forma basis consistent with Section 1.10 assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness Indebtedness) have been consummated and all related Acquisitions, Investments (ii) assuming such Limited Condition Transaction and other transactions consummated (or to be consummated) in connection therewiththerewith (including the incurrence or assumption of Indebtedness) have not been consummated. Notwithstanding the foregoing, any calculation of a ratio in connection with determining the Applicable Margin Rate and determining whether or not the Borrower Company is in compliance with the financial covenants set forth in Section 9.15 7.11 shall, in each case be calculated assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewithIndebtedness) have not been consummated. The foregoing provisions are collectively referred to as the “Limited Condition Transaction Provisions”, and shall apply with similar effect during the pendency of multiple Limited Condition Transactions such that each of the possible scenarios is separately tested.
Appears in 1 contract
Sources: Credit Agreement (Tetra Tech Inc)
Limited Condition Transactions. In the event that the Borrower Company notifies the Administrative Agent in writing that any proposed Specified Transaction Acquisition is a Limited Condition Transaction and that the Borrower Company wishes to test the conditions to such Specified Transaction Acquisition and the Indebtedness under Section 7.03(r) that is to be used to finance such Acquisition or determine the amount or availability of the Incremental Facility Amount or any other basket based on Consolidated EBITDA set forth in the Loan Documents Investment in accordance with this Section 1.131.12, then, so long as agreed to by the Administrative Agent and the lenders providing such Indebtedness, the following provisions shall apply:
(a) any condition to such Limited Condition Transaction or to the amount or availability of any Incremental Loans that are used to finance such Limited Condition Transaction Indebtedness that requires that no Default or Event of Default shall have occurred and be continuing at the time of such Limited Condition Transaction or the availability incurrence of such Incremental LoansIndebtedness, shall be satisfied if (i) no Default or Event of Default shall have occurred and be continuing at the time of the execution of the definitive agreement governing such Limited Condition Transaction (the “LCT Test Date”) of the definitive purchase agreement, merger agreement or other definitive agreement governing such Limited Condition Transaction (any such agreement “Limited Condition Transaction Agreement”) and (ii) no Specified Event of Default shall have occurred and be continuing both immediately before and immediately after giving effect to such Limited Condition Transaction and all other transactions any Indebtedness incurred in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewithany such additional Indebtedness);
(b) any condition to such Limited Condition Transaction or such Incremental Loans that the representations and warranties in this Agreement and the other Loan Documents shall be true and correct at the time of consummation of such Limited Condition Transaction or the incurrence of such Indebtedness shall be deemed satisfied if, as of the date of consummation of such Limited Condition Transaction, the Specified Acquisition Agreement Representations and the Specified Representations are true and correct in all material respects (except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects);
(c) any financial ratio test or condition or basket to be tested in connection with such Limited Condition Transaction and the availability of such Incremental Loans (including the calculation of the Incremental Facility Amount) Indebtedness will be tested as of the LCT Test Date, in each case, after giving effect to the relevant Limited Condition Transaction and all other transactions in connection therewith (including the any related incurrence or assumption of Indebtedness and all related AcquisitionsIndebtedness, Investments and other transactions consummated (or to be consummated) in connection therewith), calculated on a Pro Forma Basis pursuant to Section 1.09, where applicable, and, for the avoidance of doubt, (i) such ratios and baskets shall not be tested at the time of consummation of such Limited Condition Transaction and (ii) if any of such ratios are exceeded or conditions are not met following the LCT Test Date, but prior to the closing of such Limited Condition Transaction, as a result of fluctuations in such ratio or amount (including due to fluctuations in Consolidated EBITDA of the Borrower or the Person subject to such Limited Condition Transaction)amount, at or prior to the consummation of the relevant transaction or action, such ratios will not be deemed to have been exceeded and such conditions will not be deemed unmet as a result of such fluctuations solely for purposes of determining whether the relevant transaction or action is permitted to be consummated or taken;; and
(dc) except as provided in the next sentence, in connection with any subsequent calculation of any ratio or basket on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated and (ii) the date that the relevant definitive agreement for such Limited Condition Transaction Agreement is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or basket shall be calculated both (i) on a Pro Forma Basis pursuant to Section 1.09 assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments the use of proceeds thereof) have been consummated and (ii) assuming such Limited Condition Transaction and other transactions consummated (or to be consummated) in connection therewiththerewith (including the incurrence or assumption of Indebtedness and the use of proceeds thereof) have not been consummated. Notwithstanding the foregoing, any calculation of a ratio in connection with determining the Applicable Margin Rate and determining whether or not the Borrower Company is in compliance with the financial covenants covenant set forth in Section 9.15 7.09 shall, in each case case, be calculated assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewiththe use of proceeds thereof) have not been consummated. The foregoing provisions are collectively referred to as the “Limited Condition Transaction Provisions”, and shall apply with similar effect during the pendency of multiple Limited Condition Transactions such that each of the possible scenarios is separately tested.
Appears in 1 contract
Sources: Term Loan Agreement (Mastec Inc)
Limited Condition Transactions. In Notwithstanding anything in this Agreement or any Loan Document to the event that the Borrower notifies the Administrative Agent in writing that contrary, when calculating any proposed Specified Transaction is a Limited Condition Transaction and that the Borrower wishes to test the conditions to such Specified Transaction or determine applicable ratio, the amount or availability of the Incremental Facility Available Amount or any other basket (including incremental facilities or any baskets based on Consolidated EBITDA set forth in the Loan Documents in accordance or total assets), or determining other compliance with this Section 1.13Agreement (including the determination of compliance with representations, the following provisions shall apply:
(a) warranties or any condition to such Limited Condition Transaction or to the amount or availability provision of any Incremental Loans that are used to finance such Limited Condition Transaction that this Agreement which requires that no Default or Event of Default shall have occurred and be has occurred, is continuing at or would result therefrom) in connection with a Specified Transaction or other transaction undertaken in connection with the time consummation of a Limited Condition Transaction, the date of determination of such Limited Condition Transaction ratio, the amount or the availability of such Incremental Loans, shall be satisfied if (i) no the Available Amount or any other basket and determination of the accuracy of any representation or warranty or whether a Default or Event of Default shall have occurred and be has occurred, is continuing or would result therefrom or other applicable covenant shall, at the time option of the execution Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), be deemed to be the date the definitive agreements for such Limited Condition Transaction are entered into (the “LCT Test Date”) of the definitive purchase agreementand if, merger agreement or after such ratios and other definitive agreement governing such Limited Condition Transaction (any such agreement “Limited Condition Transaction Agreement”) and (ii) no Specified Event of Default shall have occurred and be continuing both immediately before and immediately provisions are measured on a Pro Forma Basis after giving effect to such Limited Condition Transaction and all the other Specified Transactions or other transactions to be entered into in connection therewith (including the any incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummatedthe use of proceeds thereof) in connection therewith);
(b) any condition to such Limited Condition Transaction or such Incremental Loans that the representations and warranties in this Agreement and the other Loan Documents shall be true and correct as if they occurred at the time of consummation of such Limited Condition Transaction or the incurrence of such Indebtedness shall be deemed satisfied if, as beginning of the date of consummation of such Limited Condition Transaction, the Specified Acquisition Agreement Representations and the Specified Representations are true and correct in all material respects (except for any representation and warranty that is qualified by materiality or reference applicable Test Period ending prior to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects);
(c) any financial ratio test or condition or basket to be tested in connection with such Limited Condition Transaction and the availability of such Incremental Loans (including the calculation of the Incremental Facility Amount) will be tested as of the LCT Test Date, in each case, after giving effect to the Borrower could have taken such action on the relevant Limited Condition Transaction LCT Test Date in compliance with such ratios and all other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitionsprovisions, Investments and other transactions consummated (or such provisions shall be deemed to be consummated) in connection therewith), on a Pro Forma Basis where applicable, and, for have been complied with. For the avoidance of doubt, (ix) if any of such ratios are exceeded as a result of fluctuations in such ratio (including due to fluctuations in Consolidated EBITDA of the Borrower and its Subsidiaries) at or prior to the consummation of the relevant Limited Condition Transaction, such ratios and other provisions will not be deemed to have been exceeded as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction is permitted hereunder and (y) such ratios and baskets other provisions shall not be tested at the time of consummation of such Limited Condition Transaction and (ii) if or related Specified Transactions or other transactions. If the Borrower has made an LCT Election for any of such ratios are exceeded or conditions are not met following the LCT Test Date, but prior to the closing of such Limited Condition Transaction, as a result of fluctuations in such ratio or amount (including due to fluctuations in Consolidated EBITDA of the Borrower or the Person subject to such Limited Condition Transaction), at or prior to the consummation of the relevant transaction or action, such ratios will not be deemed to have been exceeded and such conditions will not be deemed unmet as a result of such fluctuations solely for purposes of determining whether the relevant transaction or action is permitted to be consummated or taken;
(d) except as provided in the next sentence, then in connection with any subsequent calculation of any ratio or basket availability with respect to any other Specified Transaction on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated and (ii) or the date that the relevant definitive agreement for such Limited Condition Transaction Agreement is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or basket shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including the any incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewiththe use of proceeds thereof) have been consummated. Notwithstanding the foregoing, any calculation of a ratio in connection with determining the Applicable Margin and determining whether or not the Borrower is in compliance with the financial covenants set forth in Section 9.15 shall, in each case be calculated assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith) have not been consummated. The foregoing provisions are collectively referred to as the “Limited Condition Transaction Provisions”, and shall apply with similar effect during the pendency of multiple Limited Condition Transactions such that each of the possible scenarios is separately tested.
Appears in 1 contract
Sources: Credit Agreement (Gogo Inc.)
Limited Condition Transactions. In the event that the Parent Borrower notifies the Administrative Agent in writing that any proposed Specified Transaction Acquisition or Investment is a Limited Condition Transaction and that the Parent Borrower wishes to test the conditions to such Specified Limited Condition Transaction or determine and the amount or availability of the Incremental Facility Amount or any Term Loans, Incremental Notes and/or other basket based on Consolidated EBITDA set forth in the Loan Documents Debt permitted hereunder that are to be used to finance such Limited Condition Transaction in accordance with this Section 1.131.7, then, so long as agreed to by the lenders or investors providing such Debt, the following provisions shall apply:
(a) any condition to such Limited Condition Transaction or to the amount or availability of any Incremental Loans that are used to finance such Limited Condition Transaction that requires that no Default or Event of Default shall have occurred and be continuing at the time of such Limited Condition Transaction or the availability of such Incremental LoansTransaction, shall be satisfied if (i) no Default or Event of Default shall have occurred and be continuing at the time of the execution (the “LCT Test Date”) of the definitive purchase agreement, merger agreement or other definitive agreement agreements governing such Limited Condition Transaction (any such agreement “Limited Condition Transaction Agreement”) and (ii) no Specified Event of Default under any of Sections 11.1(a), 11.1(b), 11.1(h), 11.1(i) or 11.1(j) shall have occurred and be continuing both immediately before and immediately after giving effect to such Limited Condition Transaction and all other transactions any Debt incurred in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewithsuch additional Debt);
(b) any condition to such Limited Condition Transaction or such Incremental Loans that the representations and warranties in this Agreement and the other Loan Documents shall be true and correct at the time of consummation of such Limited Condition Transaction or the incurrence of such Indebtedness shall be deemed satisfied if, as of the date of consummation of such Limited Condition Transaction, the Specified Acquisition Agreement Representations and the Specified Representations are true and correct in all material respects (except for to the extent any such representation and warranty that is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects) at the time of such Limited Condition Transaction shall be subject to customary “SunGard” or other customary applicable “certain funds” conditionality provisions (including, without limitation, a condition that the 110599275_6 representations and warranties under the relevant agreements relating to such Limited Condition Transaction as are material to the lenders or investors providing such Debt shall be true and correct, but only to the extent that the Parent Borrower or its applicable Subsidiary has the right to terminate its obligations under such agreement as a result of a breach of such representations and warranties or the failure of those representations and warranties to be true and correct), so long as all representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects (except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects) at the time of execution of the definitive agreement(s) governing such Limited Condition Transaction;
(c) any financial ratio test or condition may, upon the written election of the Parent Borrower delivered to the Administrative Agent on or basket prior to the date of execution of the definitive agreement(s) for such Limited Condition Transaction, be tested in connection either (i) upon the execution of the definitive agreement(s) with respect to such Limited Condition Transaction and or (ii) upon the availability of such Incremental Loans (including the calculation consummation of the Incremental Facility Amount) will be tested as Limited Condition Transaction and related incurrence of the LCT Test DateDebt, in each case, after giving effect to the relevant Limited Condition Transaction and all other transactions in connection therewith (including the related incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith)Debt, on a Pro Forma Basis where applicable, and, pro forma basis; provided that the failure to deliver a notice under this Section 1.7(c) on or prior to the date of execution of the definitive agreement(s) for the avoidance of doubt, (i) such ratios and baskets shall not be tested at the time of consummation of such Limited Condition Transaction and shall be deemed an election to test the applicable financial ratio under subclause (ii) if any of such ratios are exceeded or conditions are not met following the LCT Test Date, but prior to the closing of such Limited Condition Transaction, as a result of fluctuations in such ratio or amount (including due to fluctuations in Consolidated EBITDA of the Borrower or the Person subject to such Limited Condition Transactionthis Section 1.7(c), at or prior to the consummation of the relevant transaction or action, such ratios will not be deemed to have been exceeded and such conditions will not be deemed unmet as a result of such fluctuations solely for purposes of determining whether the relevant transaction or action is permitted to be consummated or taken;; and
(d) except as provided if the Parent Borrower has made an election with respect to any Limited Condition Transaction to test a financial ratio test or condition at the time specified in the next sentenceclause (c)(i) of this Section, then in connection with any subsequent calculation of any ratio or basket on or following the relevant LCT Test Date date of execution of the definitive agreements with respect to such Limited Condition Transaction and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated and (ii) the date that the relevant definitive agreement(s) for such Limited Condition Transaction Agreement is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or basket shall be calculated on a Pro Forma Basis required to be satisfied assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith) have been consummated. Notwithstanding the foregoing, any calculation of a ratio in connection with determining the Applicable Margin and determining whether or not the Borrower is in compliance with the financial covenants set forth in Section 9.15 shall, in each case be calculated assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewithDebt) have not been consummated. The foregoing provisions are collectively referred to as the “Limited Condition Transaction Provisions”, and shall apply with similar effect during the pendency of multiple Limited Condition Transactions such that each of the possible scenarios is separately tested.
Appears in 1 contract
Sources: Loan Agreement (Brinks Co)
Limited Condition Transactions. In For purposes of (a) determining compliance with any provision of this Agreement which requires the event that the Borrower notifies the Administrative Agent in writing that any proposed Specified Transaction is a Limited Condition Transaction and that the Borrower wishes to test the conditions to such Specified Transaction or determine the amount or availability calculation of the Incremental Facility Amount Fixed Charge Coverage Ratio or any other basket based on Consolidated EBITDA financial ratio in the Loan Documents and (b) determining compliance with the representations and warranties or any provision requiring the absence of Defaults or Events of Default set forth in the Loan Documents Documents, in each case, solely for purposes of determining whether the consummation of a Permitted Acquisition that Loan Parties or one or more of their respective Subsidiaries is contractually committed to consummate (it being understood that such commitment may be subject to conditions precedent, which conditions precedent may be amended, satisfied or waived in accordance with this Section 1.13the terms of the applicable agreement) and whose consummation is not conditioned on the availability of, or on obtaining, third-party financing (any such transaction, a “Limited Condition Acquisition”) is permitted hereunder, the following provisions shall apply:
date of any such determination shall, at the option of Borrower Agent (aBorrower Agent’s election to exercise such option in connection with any Limited Condition Acquisition, an “LCA Election”), be the date on which the definitive agreements for such Limited Condition Acquisition are entered into (the “LCA Test Date”) any condition immediately after giving pro forma effect to such Limited Condition Transaction Acquisition and all Indebtedness incurred or assumed in connection therewith as if such events had occurred at the beginning of the most recently ended period of four (4) consecutive Fiscal Quarters prior to the amount LCA Test Date for which financial statements have been received or availability obtained by Agent (including financial statements for periods prior to the Closing Date) and all other appropriate pro forma adjustments related thereto (including the payment, retirement or redemption of any Incremental Loans that are used to finance such Indebtedness); provided, that, (a) Excess Availability under this Agreement shall be tested at the time of the consummation of the Limited Condition Transaction that Acquisition, (b) in the case of determining compliance with any provisions of this Agreement which requires that no Default or Event of Default shall have occurred and be Default, as applicable, has occurred, is continuing at the time of or would result from any such Limited Condition Transaction or the availability of action, as applicable, such Incremental Loans, condition shall be deemed satisfied if so long as (i) no Default or Event of Default shall have occurred and be continuing at exists on the time of the execution (the “LCT LCA Test Date”) of the definitive purchase agreement, merger agreement or other definitive agreement governing such Limited Condition Transaction (any such agreement “Limited Condition Transaction Agreement”) Date and (ii) no Specified Event of Default shall have occurred and be continuing both immediately before and under Section 11.1(a) or 11.1(j) exists at the time of or immediately after giving effect to the consummation of such Limited Condition Transaction and all other transactions in connection therewith Acquisition, (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummatedc) in connection therewith);
the case of determining compliance with any provision of this Agreement which requires that any of the representations and warranties made by any Loan Party set forth in this Agreement or in any other Loan Document be true and correct, such condition shall be deemed satisfied so long as (bi) any condition to such Limited Condition Transaction or such Incremental Loans that the representations and warranties in this Agreement and the other Loan Documents shall be true and correct at the time of consummation of such Limited Condition Transaction or the incurrence of such Indebtedness shall be deemed satisfied if, as of the date of consummation of such Limited Condition Transaction, the Specified Acquisition Agreement Representations and the Specified Representations are true and correct in all material respects (except for without duplication of any representation materiality qualifier therein) as of the LCA Test Date and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be (ii) customary “specified acquisition agreement representations” are true and correct in all respects);
material respects (c) any financial ratio test or condition or basket to be tested or, in connection with such Limited Condition Transaction and the availability case of such Incremental Loans (including the calculation of the Incremental Facility Amount) will be tested as of the LCT Test Daterepresentations qualified by materiality, in each caseall respects) at the time of, and immediately after giving effect to to, the relevant Limited Condition Transaction and all other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith), on a Pro Forma Basis where applicable, and, for the avoidance of doubt, (i) such ratios and baskets shall not be tested at the time of consummation of such Limited Condition Transaction Acquisition and (iid) if any of such ratios are exceeded or conditions are not met following the LCT Test Datein all cases, but prior to the closing of such Limited Condition Transaction, as a result of fluctuations in such ratio Acquisition shall be consummated on or amount before the date which is ninety (including due to fluctuations in Consolidated EBITDA of 90) days after the LCA Test Date. If Borrower or the Person subject to such Agent has made an LCA Election for any Limited Condition Transaction)Acquisition, at or prior to the consummation of the relevant transaction or action, such ratios will not be deemed to have been exceeded and such conditions will not be deemed unmet as a result of such fluctuations solely for purposes of determining whether the relevant transaction or action is permitted to be consummated or taken;
(d) except as provided in the next sentence, then in connection with any subsequent calculation of any ratio ratio, test or basket on or with respect to any transaction permitted hereunder (each, a “Subsequent Transaction”) following the relevant LCT LCA Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction Acquisition is consummated and (ii) or the date that the relevant definitive agreement for such Limited Condition Transaction Agreement Acquisition is terminated or expires without consummation of such Limited Condition TransactionAcquisition, for purposes of determining whether such Subsequent Transaction is permitted under this Agreement, any such ratio ratio, test or basket shall be calculated required to be satisfied on a Pro Forma Basis pro forma basis assuming such Limited Condition Transaction Acquisition and other transactions in connection therewith (including the any incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (the use of proceeds thereof or to be consummated) in connection therewiththe making of any Investment) have been consummated. Notwithstanding the foregoing, any calculation of a ratio in connection with determining the Applicable Margin and determining whether or not the Borrower is in compliance with the financial covenants set forth in Section 9.15 shall, in each case be calculated assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith) have not been consummated. The foregoing provisions are collectively referred to as the “Limited Condition Transaction Provisions”, and shall apply with similar effect during the pendency of multiple Limited Condition Transactions such that each of the possible scenarios is separately tested.
Appears in 1 contract
Sources: Loan and Security Agreement (Computer Task Group Inc)
Limited Condition Transactions. In Notwithstanding anything to the event that the Borrower notifies the Administrative Agent contrary herein, in writing that connection with any proposed Specified Transaction is a Limited Condition Transaction and that and, if applicable, the Borrower wishes to test the conditions to such Specified Transaction or determine the amount or availability of the Incremental Facility Amount or any other basket based on Consolidated EBITDA set forth in the Loan Documents Term Loans that are to be used to finance such Limited Condition Transaction in accordance with this Section 1.13Section, then the following provisions shall apply:
(a) i. any condition to such Limited Condition Transaction or such Indebtedness that the Credit Parties be in compliance with the financial covenants set forth in Article IX immediately after giving effect to the amount or availability of any Incremental Loans that are used to finance such Limited Condition Transaction and the incurrence of such Indebtedness on a pro forma basis recomputed as of the end of the Measurement Period shall be satisfied if the Credit Parties are in compliance with such financial covenants immediately after giving effect to such Limited Condition Transaction and the incurrence of any Indebtedness (other than revolving loans, Swingline Loans and Letters of Credit) on a pro forma basis recomputed as of the end of the Measurement Period immediately prior to the LCT Test Date;
ii. any condition to the borrowing of Incremental Term Loans that the Net Leverage Ratio not exceed a specified level immediately after giving effect to the incurrence of such Incremental Term Loan on a pro forma basis recomputed as of the end of the Measurement Period shall be satisfied if the Credit Parties are in compliance with such Net Leverage Ratio immediately after giving effect to the incurrence of such Incremental Term Loans on a pro forma basis recomputed as of the end of the Measurement Period immediately prior to the LCT Test Date;
iii. any condition to such Limited Condition Transaction or such Indebtedness that requires that no Default or Event of Default shall have occurred and be continuing at the time of such Limited Condition Transaction or the availability incurrence of such Incremental Loans, Indebtedness shall be satisfied if (iA) no Default or Event of Default (as applicable) shall have occurred and be continuing at on the time of the execution (the “LCT Test Date”) of the definitive purchase agreement, merger agreement or other definitive agreement governing such Limited Condition Transaction (any such agreement “Limited Condition Transaction Agreement”) Date and (iiB) no Specified Event of Default under Section 11.1(a), 11.1(b), 11.1(j) or 11.1(k) shall have occurred and be continuing both immediately before and immediately after giving effect to on the date of the consummation of such Limited Condition Transaction and all other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith);such Indebtedness; and
(b) iv. any condition to such Limited Condition Transaction or such Incremental Loans Indebtedness that the representations and warranties in this Agreement and the Article VI or any other Loan Documents Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct at the time of consummation of such Limited Condition Transaction or the incurrence of such Indebtedness shall be deemed satisfied ifif (A) the representations and warranties in Article VI or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, are true and correct as of the date of consummation of such Limited Condition Transaction, LCT Test Date and (B) the Specified Acquisition Agreement Representations and the Specified Purchase Agreement Representations are shall be true and correct in all material respects (except for any representation and warranty that is or, if qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects);
(c) any financial ratio test or condition or basket to be tested in connection with such Limited Condition Transaction on and the availability of such Incremental Loans (including the calculation of the Incremental Facility Amount) will be tested as of the LCT Test Date, in each case, after giving effect to date of the relevant Limited Condition Transaction and all other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith), on a Pro Forma Basis where applicable, and, for the avoidance of doubt, (i) such ratios and baskets shall not be tested at the time of consummation of such Limited Condition Transaction and (ii) if any the incurrence of such ratios are exceeded or conditions are not met following the LCT Test Date, but prior to the closing of such Limited Condition Transaction, as a result of fluctuations in such ratio or amount (including due to fluctuations in Consolidated EBITDA of the Borrower or the Person subject to such Limited Condition Transaction), at or prior to the consummation of the relevant transaction or action, such ratios will not be deemed to have been exceeded and such conditions will not be deemed unmet as a result of such fluctuations solely for purposes of determining whether the relevant transaction or action is permitted to be consummated or taken;
(d) except as provided in the next sentence, in connection with any subsequent calculation of any ratio or basket on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated and (ii) the date that the relevant Limited Condition Transaction Agreement is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or basket shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith) have been consummated. Notwithstanding the foregoing, any calculation of a ratio in connection with determining the Applicable Margin and determining whether or not the Borrower is in compliance with the financial covenants set forth in Section 9.15 shall, in each case be calculated assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith) have not been consummated. The foregoing provisions are collectively referred to as the “Limited Condition Transaction Provisions”, and shall apply with similar effect during the pendency of multiple Limited Condition Transactions such that each of the possible scenarios is separately testedIndebtedness.
Appears in 1 contract
Sources: Credit Agreement (Blackbaud Inc)
Limited Condition Transactions. In Notwithstanding anything herein to the event that contrary, solely in the Borrower notifies case of the Administrative Agent incurrence of any Indebtedness (including any Incremental Facility, but other than Indebtedness under the Revolving Commitment, which shall remain subject to the terms and conditions thereof with respect to the impact, if any, of any Limited Condition Transaction) or Liens or the making of any Investments (other than a Permitted Acquisition which shall remain subject to the terms and conditions thereof with respect to the impact, if any, of any Limited Condition Transaction), Restricted Payments, dispositions, consolidations, mergers or other fundamental changes, in writing that any proposed Specified Transaction is each case in connection with a Limited Condition Transaction and that the Borrower wishes to test the conditions to such Specified Transaction or determine the amount or availability of the Incremental Facility Amount or any other basket based on Consolidated EBITDA set forth in the Loan Documents in accordance with this Section 1.13, the following provisions shall apply:
Transaction: (a) for purposes of determining compliance with any condition to such Limited Condition Transaction or to the amount or availability provision of any Incremental Loans that are used to finance such Limited Condition Transaction that this Agreement which requires that no Default or Event of Default shall have occurred and be Default, as applicable, has occurred, is continuing or would result from any such action, as applicable, at the time Borrower’s election, such condition shall be deemed satisfied, so long as (x) no Event of Default exists on the date of execution of the definitive agreement(s) for such Limited Condition Transaction or the availability of such Incremental Loans, shall be satisfied if (i) no Default or Event of Default shall have occurred and be continuing at the time of the execution (the “LCT Test Date”) of the definitive purchase agreement, merger agreement or other definitive agreement governing such Limited Condition Transaction (any such agreement “Limited Condition Transaction Agreement”) and (iiy) no Specified Event of Default shall have occurred and be continuing both immediately before exists at the time of, and immediately after giving effect to to, the consummation of such Limited Condition Transaction Transaction, and all other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith);
(b) for purposes of determining compliance with any provision of this Agreement which requires that any of the representations and warranties made by any Loan Party set forth in this Agreement or in any other Loan Document be true and correct, such condition to such Limited Condition Transaction or such Incremental Loans that shall be deemed satisfied, so long as: (i) the representations and warranties in this Agreement and the other Loan Documents shall be true and correct at the time of consummation of such Limited Condition Transaction or the incurrence of such Indebtedness shall be deemed satisfied if, as of the date of consummation of such Limited Condition Transaction, the Specified Acquisition Agreement Representations and the Specified Representations are true and correct in all material respects (except without duplication of any materiality qualifier therein) as of the date of execution (or with respect to any such representations or warranties that specifically relate to any earlier date, as of such date) of the definitive agreement(s) for any representation such Limited Condition Transaction, (ii) customary specified acquisition agreement representations and warranty that is qualified by materiality or reference warranties with respect to Material Adverse Effect, which such representation and warranty shall the Person to be acquired are true and correct in all respectsmaterial respects (without duplication of any materiality qualifier therein);
(c) any financial ratio test or condition or basket to be tested in connection with such Limited Condition Transaction , at the time of, and the availability of such Incremental Loans (including the calculation of the Incremental Facility Amount) will be tested as of the LCT Test Date, in each case, immediately after giving effect to to, the relevant Limited Condition Transaction and all other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith), on a Pro Forma Basis where applicable, and, for the avoidance of doubt, (i) such ratios and baskets shall not be tested at the time of consummation of such Limited Condition Transaction and (ii) if or with respect to any such representations or warranties that specifically relate to any earlier date, as of such ratios are exceeded or conditions are not met following the LCT Test Date, but prior to the closing of such Limited Condition Transaction, as a result of fluctuations in such ratio or amount (including due to fluctuations in Consolidated EBITDA of the Borrower or the Person subject to such Limited Condition Transactiondate), at or prior to the consummation of the relevant transaction or action, such ratios will not be deemed to have been exceeded and such conditions will not be deemed unmet as a result of such fluctuations solely for purposes of determining whether the relevant transaction or action is permitted to be consummated or taken;
(d) except as provided in the next sentence, in connection with any subsequent calculation of any ratio or basket on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated and (ii) the date that the relevant Limited Condition Transaction Agreement is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or basket shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith) have been consummated. Notwithstanding the foregoing, any calculation of a ratio in connection with determining the Applicable Margin and determining whether or not the Borrower is in compliance with the financial covenants set forth in Section 9.15 shall, in each case be calculated assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith) have not been consummated. The foregoing provisions are collectively referred to as the “Limited Condition Transaction Provisions”, and shall apply with similar effect during the pendency of multiple Limited Condition Transactions such that each of the possible scenarios is separately tested.and
Appears in 1 contract
Sources: Credit Agreement (Vse Corp)
Limited Condition Transactions. In the event that the Borrower Company notifies the Administrative Agent in writing that any proposed Specified Transaction Acquisition or Investment is a Limited Condition Transaction and that the Borrower Company wishes to test the conditions to such Specified Limited Condition Transaction or determine and, if applicable, the amount or availability of the Incremental Facility Amount or any Term Loans and/or other basket based on Consolidated EBITDA set forth in the Loan Documents Indebtedness not prohibited hereunder that are to be used to finance such Limited Condition Transaction in accordance with this Section 1.131.10, then the following provisions shall apply:
(a) any condition to such Limited Condition Transaction or to the amount or availability of any Incremental Loans that are used to finance such Limited Condition Transaction that requires that no Default or Event of Default shall have occurred and be continuing at the time of such Limited Condition Transaction or Transaction, shall, if agreed to by the availability of lenders providing such Incremental LoansIndebtedness, shall be satisfied if (i) no Default or Event of Default shall have occurred and be continuing at the time of the execution (the “LCT Test Date”) of the definitive purchase agreement, merger agreement or other definitive agreement agreements governing such Limited Condition Transaction or (any in the absence of such agreement definitive agreements) the public announcement of such event or transaction (such date, the “Limited Condition Transaction AgreementLCT Reference Date”) and (ii) no Specified Event of Default under any of Sections 8.01(a), 8.01(f), or 8.01(g) shall have occurred and be continuing both immediately before and immediately after giving effect to such Limited Condition Transaction and all other transactions any Indebtedness incurred in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewithsuch additional Indebtedness);
(b) any condition to such Limited Condition Transaction or such Incremental Loans the incurrence of any Indebtedness related thereto that the representations and warranties in this Agreement and the other Loan Documents shall be true and correct at the time of consummation of such Limited Condition Transaction or the incurrence of such Indebtedness shall be deemed satisfied if, as of the date of consummation of such Limited Condition Transaction, the Specified Acquisition Agreement Representations and the Specified Representations are true and correct in all material respects (except for to the extent any such representation and warranty that is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects) at the time of such Limited Condition Transaction may, if agreed to by the lenders providing such Indebtedness, be subject to customary “SunGard” or other customary applicable “certain funds” conditionality provisions (including, without limitation, a condition that the representations and warranties under the relevant agreements relating to such Limited Condition Transaction as are material to the lenders or investors providing such Indebtedness shall be true and correct, but only to the extent that the Company or its applicable Subsidiary has the right to terminate its obligations under such agreement as a result of a breach of such representations and warranties or the failure of those representations and warranties to be true and correct), so long as all representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects (except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects) on the LCT Reference Date;
(c) any financial ratio test or condition may, upon the written election of the Company delivered to the Administrative Agent on or basket prior to the LCT Reference Date, be tested in connection with such either (i) upon the LCT Reference Date or (ii) upon the consummation of the Limited Condition Transaction and the availability related incurrence of such Incremental Loans (including the calculation of the Incremental Facility Amount) will be tested as of the LCT Test DateIndebtedness, if applicable, in each case, after giving effect to the relevant Limited Condition Transaction and all other transactions in connection therewith (including the related incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith)Indebtedness, on a Pro Forma Basis where applicable, and, for pro forma basis; provided that the avoidance of doubt, (ifailure to deliver a notice under this Section 1.10(c) such ratios and baskets shall not be tested at the time of consummation of such Limited Condition Transaction and (ii) if any of such ratios are exceeded or conditions are not met following the LCT Test Date, but prior to the closing of such Limited Condition Transaction, as a result of fluctuations in such ratio or amount (including due to fluctuations in Consolidated EBITDA of the Borrower or the Person subject to such Limited Condition Transaction), at on or prior to the consummation of the relevant transaction or action, such ratios will not LCT Reference Date shall be deemed an election to have been exceeded and such conditions will not be deemed unmet as a result test the applicable financial ratio under subclause (ii) of such fluctuations solely for purposes of determining whether the relevant transaction or action is permitted to be consummated or taken;this Section 1.01(c); and
(d) except as provided if the Company has made an election with respect to any Limited Condition Transaction to test a financial ratio test or condition at the time specified in the next sentenceclause (c)(i) of this Section, then in connection with any subsequent calculation of any ratio or basket on or following the relevant LCT Test Date date of execution of the definitive agreements with respect to such Limited Condition Transaction and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated and (ii) the date that the relevant definitive agreement(s), if any, for such Limited Condition Transaction Agreement is terminated or expires without consummation of such Limited Condition Transaction, or (in the absence of such definitive agreements) the public announcement of the abandonment or termination of such Limited Condition Transaction, any such ratio or basket shall be calculated required to be satisfied (i) on a Pro Forma Basis pro forma basis assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewithIndebtedness) have been consummated. Notwithstanding the foregoing, any calculation of a ratio in connection with determining the Applicable Margin consummated and determining whether or not the Borrower is in compliance with the financial covenants set forth in Section 9.15 shall, in each case be calculated (ii) assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewithIndebtedness) have not been consummated. The foregoing provisions are collectively referred to as the “Limited Condition Transaction Provisions”, and shall apply with similar effect during the pendency of multiple Limited Condition Transactions such that each of the possible scenarios is separately tested.
Appears in 1 contract
Sources: Credit Agreement (Idex Corp /De/)
Limited Condition Transactions. In Notwithstanding anything to the contrary herein, in the event that the Borrower notifies provides written notice to the Administrative Agent in writing that any designating a proposed Specified Transaction is transaction as a Limited Condition Transaction and that indicating the Borrower wishes Borrower’s intention to test the conditions to such Specified Limited Condition Transaction or determine and the amount or availability of the Incremental Term Facility Amount or any other basket based on Consolidated EBITDA set forth in the Loan Documents that is to be used to finance such Limited Condition Transaction in accordance with this Section 1.13Section, then the following provisions shall apply:
(ai) any condition to such Limited Condition Transaction or such Indebtedness that the Loan Parties be in compliance with the financial covenants set forth in Section 8.11 immediately after giving effect to the amount or availability of any Incremental Loans that are used to finance such Limited Condition Transaction and the incurrence of such Indebtedness on a Pro Forma Basis recomputed as of the end of the Applicable Period shall be satisfied if the Loan Parties are in compliance with such financial covenants immediately after giving effect to such Limited Condition Transaction and the incurrence of any Indebtedness (other than Revolving Loans, Swing Line Loans and Letters of Credit) on a Pro Forma Basis recomputed as of the end of the Applicable Period immediately prior to the LCT Test Date;
(ii) any condition to an Incremental Term Facility that the Senior Secured Net Leverage Ratio not exceed a specified level immediately after giving effect to the incurrence of such Incremental Term Facility on a Pro Forma Basis recomputed as of the end of the Applicable Period shall be satisfied if the Loan Parties are in compliance with such Senior Secured Net Leverage Ratio immediately after giving effect to the incurrence of such Incremental Term Facility on a Pro Forma Basis recomputed as of the end of the Applicable Period immediately prior to the LCT Test Date;
(iii) any condition to such Limited Condition Transaction or such Indebtedness that requires that no Default or Event of Default shall have occurred and be continuing at the time of such Limited Condition Transaction or the availability incurrence of such Incremental Loans, Indebtedness shall be satisfied if (iA) no Default or Event of Default shall have occurred and be continuing at on the time of the execution (the “LCT Test Date”) of the definitive purchase agreement, merger agreement or other definitive agreement governing such Limited Condition Transaction (any such agreement “Limited Condition Transaction Agreement”) Date and (iiB) no Specified Event of Default under Section 9.01(a), 9.01(f) or 9.01(g) shall have occurred and be CACI INTERNATIONAL INC NINTH AMENDMENT continuing both immediately before and immediately after giving effect to on the date of the consummation of such Limited Condition Transaction and all other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith);such Indebtedness; and
(biv) any condition to such Limited Condition Transaction or such Incremental Loans Indebtedness that the representations and warranties in this Agreement and the Article VI or any other Loan Documents Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct at the time of consummation of such Limited Condition Transaction or the incurrence of such Indebtedness shall be deemed satisfied ifif (A) the representations and warranties in Article VI or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, are true and correct as of the LCT Test Date and (B) the Specified Representations and the Specified Purchase Agreement Representations shall be true and correct on and as of the date of consummation of such Limited Condition Transaction, the Specified Acquisition Agreement Representations and the Specified Representations are true and correct in all material respects (except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects);
(c) any financial ratio test or condition or basket to be tested in connection with such Limited Condition Transaction and the availability of such Incremental Loans (including the calculation of the Incremental Facility Amount) will be tested as of the LCT Test Date, in each case, after giving effect to the relevant Limited Condition Transaction and all other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith), on a Pro Forma Basis where applicable, and, for the avoidance of doubt, (i) such ratios and baskets shall not be tested at the time of consummation of such Limited Condition Transaction and (ii) if any the incurrence of such ratios are exceeded or conditions are not met following the LCT Test Date, but prior to the closing of such Limited Condition Transaction, as a result of fluctuations in such ratio or amount (including due to fluctuations in Consolidated EBITDA of the Borrower or the Person subject to such Limited Condition Transaction), at or prior to the consummation of the relevant transaction or action, such ratios will not be deemed to have been exceeded and such conditions will not be deemed unmet as a result of such fluctuations solely for purposes of determining whether the relevant transaction or action is permitted to be consummated or taken;
(d) except as provided in the next sentence, in connection with any subsequent calculation of any ratio or basket on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated and (ii) the date that the relevant Limited Condition Transaction Agreement is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or basket shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith) have been consummated. Notwithstanding the foregoing, any calculation of a ratio in connection with determining the Applicable Margin and determining whether or not the Borrower is in compliance with the financial covenants set forth in Section 9.15 shall, in each case be calculated assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith) have not been consummated. The foregoing provisions are collectively referred to as the “Limited Condition Transaction Provisions”, and shall apply with similar effect during the pendency of multiple Limited Condition Transactions such that each of the possible scenarios is separately testedIndebtedness.
Appears in 1 contract
Limited Condition Transactions. In the event that the Borrower notifies the Administrative Agent in writing that any proposed Specified Transaction Acquisition or Investment is a Limited Condition Transaction and that the Borrower wishes to test the conditions to such Specified Limited Condition Transaction or determine the amount or availability of the Incremental Facility Amount or and any other basket based on Consolidated EBITDA set forth Indebtedness being incurred substantially concurrently with such Limited Condition Transaction that is to be used solely to finance such Limited Condition Transaction and any related transaction costs and expenses incurred in the Loan Documents connection with such Limited Condition Transaction in accordance with this Section 1.13(such notification, a “LCT Election”), then, so long as agreed to by the lenders providing such Indebtedness (if any), the following provisions shall apply:
(a) any condition to such Limited Condition Transaction or to the amount or availability of any Incremental Loans that are used to finance such Limited Condition Transaction Indebtedness that requires that no Default or Event of Default shall have occurred and be continuing at the time of such Limited Condition Transaction or the availability incurrence of such Incremental LoansIndebtedness, shall be satisfied if (i) no Default or Event of Default shall have occurred and be continuing at the time of the execution (the “LCT Test Date”) of the definitive purchase agreement, merger agreement or other definitive agreement agreements governing such Limited Condition Transaction (any such agreement date, the “Limited Condition Transaction AgreementLCT Test Date”) and (ii) no Specified Event of Default shall have occurred and be continuing both immediately before and immediately after giving effect to such Limited Condition Transaction and all other transactions any Indebtedness incurred in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewithsuch additional Indebtedness);
(b) any financial ratio test (including any such test calculated in determining amounts under baskets) or financial condition to such Limited Condition Transaction or such Incremental Loans that the representations and warranties in this Agreement and the other Loan Documents shall be true and correct at the time of consummation of such Limited Condition Transaction or the incurrence of such Indebtedness shall be deemed satisfied if, as of tested on the date of consummation of such Limited Condition Transaction, the Specified Acquisition Agreement Representations and the Specified Representations are true and correct in all material respects (except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects)LCT Test Date;
(c) any financial ratio test or condition or basket to be tested in connection with such Limited Condition Transaction and the availability of such Incremental Loans (including the calculation of the Incremental Facility Amount) will be tested as of the LCT Test Date, in each case, after giving effect to the relevant Limited Condition Transaction and all other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith), on a Pro Forma Basis where applicable, and, for the avoidance of doubt, (i) such ratios and baskets shall not be tested at the time of consummation of such Limited Condition Transaction and (ii) if any of such ratios are exceeded or conditions are not met following the LCT Test Date, but prior to the closing of such Limited Condition Transaction, as a result of fluctuations in such ratio or amount (including due to fluctuations in Consolidated EBITDA of the Borrower or the Person subject to such Limited Condition Transaction), at or prior to the consummation of the relevant transaction or action, such ratios will not be deemed to have been exceeded and such conditions will not be deemed unmet as a result of such fluctuations solely for purposes of determining whether the relevant transaction or action is permitted to be consummated or taken;
(d) except as provided in the next sentence, if the Borrower has made an LCT Election, then in connection with any subsequent calculation of any ratio or basket on or following the relevant LCT Test Date date of execution of the definitive agreement with respect to such Limited Condition Transaction and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated and or (ii) the date that the relevant definitive agreement for such Limited Condition Transaction Agreement is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or basket shall be calculated required to be satisfied on a Pro Forma Basis pro forma basis assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewiththe use of proceeds thereof) have been consummated. Notwithstanding the foregoing, any calculation of a ratio in connection with (x) determining the Applicable Margin Rate and determining whether or not the Borrower is in compliance with the financial covenants set forth in Section 9.15 7.11 shall, in each case case, be calculated assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness Indebtedness) have not been consummated and all related Acquisitions, Investments (y) determining whether the Borrower or its Restricted Subsidiaries may make a Restricted Payment shall be calculated (1) on a pro forma basis assuming such Limited Condition Transaction and other transactions consummated (or to be consummated) in connection therewiththerewith (including the incurrence or assumption of Indebtedness and the use of proceeds thereof) have been consummated and (2) assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and the use of proceeds thereof) have not been consummated. For the avoidance of doubt, if the Borrower has made an LCT Election and any of the ratios or baskets for which compliance was determined or tested as of the LCT Test Date are exceeded as a result of fluctuations in any such ratio or basket (including due to fluctuations of the target of any Limited Condition Transaction) after the LCT Test Date, but at or prior to the consummation of the Limited Condition Transaction, such basket or ratio will not be deemed to have been exceeded as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction is permitted hereunder, and such ratios, baskets and other provisions shall not be tested at the time of consummation of such Limited Condition Transaction; and
(d) with respect to any incurrence of Indebtedness, the proceeds of which are being used to finance a substantially concurrent Acquisition (and the related transaction costs) that is a Limited Condition Transaction subject to customary “funds certain provisions,” any requirement under this Agreement or any other Loan Document that the representations and warranties be true and correct as a condition precedent to such Acquisition or the incurrence and the availability of such Indebtedness may, if agreed to by the applicable lenders providing such Indebtedness, be limited to those representations and warranties, the accuracy of which is customarily included as a condition precedent to the incurrence or availability of third party acquisition financings that are subject to customary “funds certain provisions” (including, without limitation, certain specified representations and warranties under this Agreement and the representations and warranties under the relevant agreement governing such Acquisition that are material to the lenders providing such Indebtedness to the extent that the Borrower or its applicable Restricted Subsidiary has the right to terminate its obligations under such agreement or otherwise decline to close such Acquisition as a result of the failure of such representations and warranties to be true and correct), so long as all representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects at the time of execution of the relevant agreement governing such Acquisition. The foregoing provisions are collectively referred to as the “Limited Condition Transaction Provisions”, and shall apply with similar effect during the pendency of multiple Limited Condition Transactions such that each of the possible scenarios is separately tested. Notwithstanding anything to the contrary herein, in no event shall there be more than two Limited Condition Transactions at any time outstanding.
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Limited Condition Transactions. In the event that the Parent Borrower notifies the Administrative Agent in writing that any proposed Specified Transaction Acquisition or Investment is a Limited Condition Transaction and that the Parent Borrower wishes to test the conditions to such Specified Limited Condition Transaction or determine and the amount or availability of the Incremental Facility Amount or any Term Loans, Incremental Notes and/or other basket based on Consolidated EBITDA set forth in the Loan Documents Debt permitted hereunder that are to be used to finance such Limited Condition Transaction in accordance with this Section 1.131.7, then, so long as agreed to by the lenders or investors providing such Debt, the following provisions shall apply:
(a) any condition to such Limited Condition Transaction or to the amount or availability of any Incremental Loans that are used to finance such Limited Condition Transaction that requires that no Default or Event of Default shall have occurred and be continuing at the time of such Limited Condition Transaction or the availability of such Incremental LoansTransaction, shall be satisfied if (i) no Default or Event of Default shall have occurred and be continuing at the time of the execution (the “LCT Test Date”) of the definitive purchase agreement, merger agreement or other definitive agreement agreements governing such Limited Condition Transaction (any such agreement “Limited Condition Transaction Agreement”) and (ii) no Specified Event of Default under any of Sections 11.1(a), 11.1(b), 11.1(h), 11.1(i) or 11.1(j) shall have occurred and be continuing both immediately before and immediately after giving effect to such Limited Condition Transaction and all other transactions any Debt incurred in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewithsuch additional Debt);
(b) any condition to such Limited Condition Transaction or such Incremental Loans that the representations and warranties in this Agreement and the other Loan Documents shall be true and correct at the time of consummation of such Limited Condition Transaction or the incurrence of such Indebtedness shall be deemed satisfied if, as of the date of consummation of such Limited Condition Transaction, the Specified Acquisition Agreement Representations and the Specified Representations are true and correct in all material respects (except for to the extent any such representation and warranty that is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects) at the time of such Limited Condition Transaction shall be subject to customary “SunGard” or other customary applicable “certain funds” conditionality provisions (including, without limitation, a condition that the representations and warranties under the relevant agreements relating to such Limited Condition Transaction as are material to the lenders or investors providing such Debt shall be true and correct, but only to the extent that the Parent Borrower or its applicable Subsidiary has the right to terminate its obligations under such agreement as a result of a breach of such representations and warranties or the failure of those representations and warranties to be true and correct), so long as all representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects (except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects) at the time of execution of the definitive agreement(s) governing such Limited Condition Transaction;
(c) any financial ratio test or condition may, upon the written election of the Parent Borrower delivered to the Administrative Agent on or basket prior to the date of execution of the definitive agreement(s) for such Limited Condition Transaction, be tested in connection either (i) upon the execution of the definitive agreement(s) with respect to such Limited Condition Transaction and or (ii) upon the availability of such Incremental Loans (including the calculation consummation of the Incremental Facility Amount) will be tested as Limited Condition Transaction and related incurrence of the LCT Test DateDebt, in each case, after giving effect to the relevant Limited Condition Transaction and all other transactions in connection therewith (including the related incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith)Debt, on a Pro Forma Basis where applicable, and, pro forma basis; provided that the failure to deliver a notice under this Section 1.7(c) on or prior to the date of execution of the definitive agreement(s) for the avoidance of doubt, (i) such ratios and baskets shall not be tested at the time of consummation of such Limited Condition Transaction and shall be deemed an election to test the applicable financial ratio under subclause (ii) if any of such ratios are exceeded or conditions are not met following the LCT Test Date, but prior to the closing of such Limited Condition Transaction, as a result of fluctuations in such ratio or amount (including due to fluctuations in Consolidated EBITDA of the Borrower or the Person subject to such Limited Condition Transactionthis Section 1.7(c), at or prior to the consummation of the relevant transaction or action, such ratios will not be deemed to have been exceeded and such conditions will not be deemed unmet as a result of such fluctuations solely for purposes of determining whether the relevant transaction or action is permitted to be consummated or taken;; and
(d) except as provided if the Parent Borrower has made an election with respect to any Limited Condition Transaction to test a financial ratio test or condition at the time specified in the next sentenceclause (c)(i) of this Section, then in connection with any subsequent calculation of any ratio or basket on or following the relevant LCT Test Date date of execution of the definitive agreements with respect to such Limited Condition Transaction and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated and (ii) the date that the relevant definitive agreement(s) for such Limited Condition Transaction Agreement is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or basket shall be calculated on a Pro Forma Basis required to be satisfied assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewith) have been consummated. Notwithstanding the foregoing, any calculation of a ratio in connection with determining the Applicable Margin and determining whether or not the Borrower is in compliance with the financial covenants set forth in Section 9.15 shall, in each case be calculated assuming such Limited Condition Transaction and other transactions in connection therewith (including the incurrence or assumption of Indebtedness and all related Acquisitions, Investments and other transactions consummated (or to be consummated) in connection therewithDebt) have not been consummated. The foregoing provisions are collectively referred to as the “Limited Condition Transaction Provisions”, and shall apply with similar effect during the pendency of multiple Limited Condition Transactions such that each of the possible scenarios is separately tested.
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Sources: Credit Agreement (Brinks Co)