Common use of Measuring Compliance Clause in Contracts

Measuring Compliance. Notwithstanding anything to the contrary herein (except as set forth in the proviso to clause (c)(i) of Section 4.09 hereof), in the event any item of Indebtedness, Disqualified Stock or Preferred Stock, Lien, Permitted Lien, Restricted Payment, Permitted Investment or other transaction or action (any of the foregoing in a single transaction or a series of substantially concurrent related transactions) meets the criteria of one or more than one categories of exceptions, thresholds or baskets under this Indenture (including within any defined terms), including any financial ratio based exceptions, thresholds or baskets (including the Fixed Charge Coverage Ratio, Senior Secured Net Leverage Ratio or Total Net Leverage Ratio), (1) the Issuer will, in its sole discretion, be entitled to divide and classify and later re-divide and reclassify on or more occasions (based on circumstances existing on the date of any such re-division and reclassification) any such item of Indebtedness, Disqualified Stock or Preferred Stock, Lien, Permitted Lien, Restricted Payment, Permitted Investment or other transaction or action, in whole or in part, among one or more than one categories of exceptions, thresholds or baskets under this Indenture, and (2) availability and utilization of any category of financial ratio based exceptions, thresholds and baskets (i.e., incurrence-based exceptions, thresholds and baskets) shall first be calculated without giving effect to the amount or portion of any item of Indebtedness, Disqualified Stock or Preferred Stock, Lien, Permitted Lien, Restricted Payment, Permitted Investment or other transaction or action to be utilized under any other category of exceptions, thresholds and baskets (excluding financial ratio-based or incurrence-based basket) at such time of determination (including at the time of any initial division and classification and any later re-divisions and reclassifications) and thereafter, availability and utilization of any category of exceptions, thresholds and baskets that are not financial ratio based (including all exceptions, thresholds and baskets based on fixed Dollar amounts or a percentage of Consolidated EBITDA or total assets) shall be calculated. Each item of item of Indebtedness, Disqualified Stock or Preferred Stock, Lien, Permitted Lien, Restricted Payment, Permitted Investment or other transaction or action will be deemed to have been incurred, issued, made or taken first, to the extent available, pursuant to any available categories of financial ratio based exceptions, thresholds and baskets (including the Fixed Charge Coverage Ratio, Senior Secured Net Leverage Ratio or Total Net Leverage Ratio) as set forth above prior to any other category of exceptions, thresholds and baskets. If any item of Indebtedness, Disqualified Stock or Preferred Stock, Lien, Permitted Lien, Restricted Payment, Permitted Investment or other transaction or action (or any portion of the foregoing) previously divided and classified (or re-divided and reclassified) as set forth above under any category of non-financial ratio based exceptions, thresholds or baskets could subsequently be re-divided and reclassified under a category of financial ratio based exceptions, thresholds or baskets (including the Fixed Charge Coverage Ratio, Senior Secured Net Leverage Ratio or Total Net Leverage Ratio), such re-division and reclassification shall be deemed to occur automatically and item of Indebtedness, Disqualified Stock or Preferred Stock, Lien, Permitted Lien, Restricted Payment, Permitted Investment or other transaction or action (or any portion of the foregoing) shall cease to be deemed made or outstanding for purposes of any category of exceptions, thresholds and baskets that are not financial ratio based. Notwithstanding anything to the contrary herein, in the event an item of Indebtedness, Disqualified Stock or Preferred Stock (or any portion thereof) is incurred or issued, any Lien is incurred or other transaction is undertaken in reliance on a ratio basket based on the Fixed Charge Coverage Ratio, Senior Secured Net Leverage Ratio or Total Net Leverage Ratio, such ratio(s) shall be calculated without regard to the incurrence of any Indebtedness under any revolving facility prior to or in connection therewith. For purposes of the calculation of any financial ratio hereunder (including the Senior Secured Net Leverage Ratio or Total Net Leverage Ratio), in no event shall any cash proceeds of any new Indebtedness being incurred in connection with the calculation of such ratio definition be netted from the numerator in such ratio for purposes of determining whether such Indebtedness can be incurred but pro forma effect shall otherwise be given to the use of such proceeds. If any item of Indebtedness, Disqualified Stock or Preferred Stock, Lien, Permitted Lien, Restricted Payment, Permitted Investment or other transaction or action (any of the foregoing in a single transaction or a series of substantially concurrent related transactions) is incurred, issued, taken or consummated in reliance on categories of exceptions, thresholds or baskets measured by reference to a percentage of Consolidated EBITDA, and any Indebtedness, Disqualified Stock or Preferred Stock, Lien, Permitted Lien, Restricted Payment, Permitted Investment or other transaction or action (including in connection with refinancing thereof) would subsequently exceed the applicable percentage of Consolidated EBITDA if calculated based on the Consolidated EBITDA on a later date (including the date of any refinancing), such percentage of Consolidated EBITDA will not be deemed to be exceeded (and in the case of refinancing any Indebtedness, Disqualified Stock or Preferred Stock, to the extent the principal amount or the liquidation preference of such newly incurred or issued Indebtedness, Disqualified Stock or Preferred Stock does not exceed the maximum principal amount, liquidation preference or amount of Refinancing Indebtedness in respect of the Indebtedness, Disqualified Stock or Preferred Stock being refinanced, extended, replaced, refunded, renewed or defeased).

Measuring Compliance. Notwithstanding anything to the contrary herein in this Indenture (except as set forth in the proviso to clause (c)(i) of Section 4.09 hereof4.09(c)(1)), in the event any item of Indebtedness, Disqualified Stock or Preferred Stock, Lien, Permitted Lien, Restricted Payment, Permitted Investment or other transaction or action (any of the foregoing in a single transaction or a series of substantially concurrent related transactions) meets the criteria of one or more than one categories (or subcategories within any category) of exceptions, thresholds or baskets under this Indenture (including within any defined terms), including any financial ratio based exceptions, thresholds or baskets (including the Fixed Charge Coverage Ratio, Senior Secured Net Leverage Ratio or Total Net Leverage Ratio), (1) the Issuer will, in its sole discretion, be entitled to divide and classify and later re-divide and reclassify on or more occasions (based on circumstances existing on the date of any such re-division and reclassification) any such item of Indebtedness, Disqualified Stock or Preferred Stock, Lien, Permitted Lien, Restricted Payment, Permitted Investment or other transaction or action, in whole or in part, among one or more than one categories (or subcategories within any category) of exceptions, thresholds or baskets under this Indenture, and (2) availability and utilization of any category (or subcategories within any category) of financial ratio based exceptions, thresholds and baskets (i.e., incurrence-based exceptions, thresholds and baskets) shall first be calculated without giving effect to the amount or portion of any item of Indebtedness, Disqualified Stock or Preferred Stock, Lien, Permitted Lien, Restricted Payment, Permitted Investment or other transaction or action to be utilized under any other category (or subcategories within any category) of exceptions, thresholds and baskets (excluding financial ratio-based or incurrence-based basketbaskets) (including all exceptions, thresholds and baskets based on fixed Dollar amounts or a percentage of Consolidated EBITDA or total assets) at such time of determination (including at the time of any initial division and classification and any later re-re- divisions and reclassifications) and thereafter, availability and utilization of any category (or subcategories within any category) of exceptions, thresholds and baskets that are not financial ratio based (including all exceptions, thresholds and baskets based on fixed Dollar amounts or a percentage of Consolidated EBITDA or total assets) shall be calculated. Each item of item of Indebtedness, Disqualified Stock or Preferred Stock, Lien, Permitted Lien, Restricted Payment, Permitted Investment or other transaction or action will be deemed to have been incurred, issued, made or taken first, to the extent available, pursuant to any available categories (or subcategories within any category) of financial ratio based exceptions, thresholds and baskets (including the Fixed Charge Coverage Ratio, Senior Secured Net Leverage Ratio or Total Net Leverage Ratio) as set forth above prior to any other category (or subcategories within any category) of exceptions, thresholds and baskets. If any item of Indebtedness, Disqualified Stock or Preferred Stock, Lien, Permitted Lien, Restricted Payment, Permitted Investment or other transaction or action (or any portion of the foregoing) previously divided and classified (or re-divided and reclassified) as set forth above under any category (or subcategories within any category) of non-financial ratio based exceptions, thresholds or baskets could subsequently be re-divided and reclassified under a category (or subcategories within any category) of financial ratio based exceptions, thresholds or baskets (including the Fixed Charge Coverage Ratio, Senior Secured Net Leverage Ratio or Total Net Leverage Ratio), such re-division and reclassification shall be deemed to occur automatically and such item of Indebtedness, Disqualified Stock or Preferred Stock, Lien, Permitted Lien, Restricted Payment, Permitted Investment or other transaction or action (or any portion of the foregoing) shall cease to be deemed made or outstanding for purposes of any category (or subcategories within any category) of exceptions, thresholds and baskets that are not financial ratio based. Notwithstanding anything to the contrary herein, in the event an item of Indebtedness, Disqualified Stock or Preferred Stock (or any portion thereof) is incurred or issued, any Lien is incurred or other transaction is undertaken in reliance on a ratio basket based on the Fixed Charge Coverage Ratio, Senior Secured Net Leverage Ratio or Total Net Leverage Ratio, such ratio(s) shall be calculated without regard to the incurrence of any Indebtedness under any revolving facility or letter of credit facility immediately prior to or in connection therewiththerewith (other than any Designated Revolving Commitments). For purposes of the calculation of any financial ratio hereunder (including the Senior Secured Net Leverage Ratio or Total Net Leverage Ratio), in no event shall any cash proceeds of any new Indebtedness being incurred in connection with the calculation of such ratio definition be netted from the numerator in such ratio for purposes of determining whether such Indebtedness can be incurred incurred, but pro forma effect shall otherwise be given to the use of such proceeds. If any item of Indebtedness, Disqualified Stock or Preferred Stock, Lien, Permitted Lien, Restricted Payment, Permitted Investment or other transaction or action (any of the foregoing in a single transaction or a series of substantially concurrent related transactions) is incurred, issued, taken or consummated in reliance on categories (or subcategories within any category) of exceptions, thresholds or baskets measured by reference to a percentage of Consolidated EBITDA, and any Indebtedness, Disqualified Stock or Preferred Stock, Lien, Permitted Lien, Restricted Payment, Permitted Investment or other transaction or action (including in connection with refinancing thereof) would subsequently exceed the applicable percentage of Consolidated EBITDA if calculated based on the Consolidated EBITDA on a later date (including the date of any refinancing), such percentage of Consolidated EBITDA will not be deemed to be exceeded (and in the case of refinancing any Indebtedness, Disqualified Stock or Preferred Stock, to the extent the principal amount or the liquidation preference of such newly incurred or issued Indebtedness, Disqualified Stock or Preferred Stock does not exceed the maximum principal amount, liquidation preference or amount of Refinancing Indebtedness in respect of the Indebtedness, Disqualified Stock or Preferred Stock being refinanced, extended, replaced, refunded, renewed or defeased). Any reference in this Indenture to a merger, transfer, consolidation, amalgamation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of, or by, a limited liability company, limited partnership or trust, or an allocation of assets to a series of a limited liability company, limited partnership or trust (or the unwinding of such a division or allocation), as if it were a merger, transfer, consolidation, amalgamation, assignment, sale or transfer, or similar term, as applicable, to, of or with a separate Person. Any division of a limited liability company, limited partnership or trust shall constitute a separate Person under this Indenture (and each division of any limited liability company, limited partnership or trust that is a Subsidiary, Unrestricted Subsidiary, joint venture or any other like term shall also constitute such a Person or entity).

Measuring Compliance. Notwithstanding anything to the contrary herein in this Indenture (except as set forth in the proviso to clause (c)(i) of Section 4.09 hereof4.09(c)(1)), in the event any item of Indebtedness, Disqualified Stock or Preferred Stock, Lien, Permitted Lien, Restricted Payment, Permitted Investment or other transaction or action (any of the foregoing in a single transaction or a series of substantially concurrent related transactions) meets the criteria of one or more than one categories (or subcategories within any category) of exceptions, thresholds or baskets under this Indenture (including within any defined terms), including any financial ratio based exceptions, thresholds or baskets (including the Fixed Charge Coverage Ratio, Senior Secured Net Leverage Ratio or Total Net Leverage Ratio), (1) the Issuer will, in its sole discretion, be entitled to divide and classify and later re-divide and reclassify on or more occasions (based on circumstances existing on the date of any such re-division and reclassification) any such item of Indebtedness, Disqualified Stock or Preferred Stock, Lien, Permitted Lien, Restricted Payment, Permitted Investment or other transaction or action, in whole or in part, among one or more than one categories (or subcategories within any category) of exceptions, thresholds or baskets under this Indenture, and (2) availability and utilization of any category (or subcategories within any category) of financial ratio based exceptions, thresholds and baskets (i.e., incurrence-based exceptions, thresholds and baskets) shall first be calculated without giving effect to the amount or portion of any item of Indebtedness, Disqualified Stock or Preferred Stock, Lien, Permitted Lien, Restricted Payment, Permitted Investment or other transaction or action to be utilized under any other category (or subcategories within any category) of exceptions, thresholds and baskets (excluding financial ratio-based or incurrence-based basketbaskets) (including all exceptions, thresholds and baskets based on fixed Dollar amounts or a percentage of Consolidated EBITDA or Total Assets) at such time of determination (including at the time of any initial division and classification and any later re-divisions and reclassifications) and thereafter, availability and utilization of any category (or subcategories within any category) of exceptions, thresholds and baskets that are not financial ratio based (including all exceptions, thresholds and baskets based on fixed Dollar amounts or a percentage of Consolidated EBITDA or total assetsTotal Assets) shall be calculated. Each item of item of Indebtedness, Disqualified Stock or Preferred Stock, Lien, Permitted Lien, Restricted Payment, Permitted Investment or other transaction or action will be deemed to have been incurred, issued, made or taken first, to the extent available, pursuant to any available categories (or subcategories within any category) of financial ratio based exceptions, thresholds and baskets (including the Fixed Charge Coverage Ratio, Senior Secured Net Leverage Ratio or Total Net Leverage Ratio) as set forth above prior to any other category (or subcategories within any category) of exceptions, thresholds and baskets. If any item of Indebtedness, Disqualified Stock or Preferred Stock, Lien, Permitted Lien, Restricted Payment, Permitted Investment or other transaction or action (or any portion of the foregoing) previously divided and classified (or re-divided and reclassified) as set forth above under any category (or subcategories within any category) of non-financial ratio based exceptions, thresholds or baskets could subsequently be re-divided and reclassified under a category (or subcategories within any category) of financial ratio based exceptions, thresholds or baskets (including the Fixed Charge Coverage Ratio, Senior Secured Net Leverage Ratio or Total Net Leverage Ratio), such re-division and reclassification shall be deemed to occur automatically and such item of Indebtedness, Disqualified Stock or Preferred Stock, Lien, Permitted Lien, Restricted Payment, Permitted Investment or other transaction or action (or any portion of the foregoing) shall cease to be deemed made or outstanding for purposes of any category (or subcategories within any category) of exceptions, thresholds and baskets that are not financial ratio based. Notwithstanding anything to the contrary herein, in the event an item of Indebtedness, Disqualified Stock or Preferred Stock (or any portion thereof) is incurred or issued, any Lien is incurred or other transaction is undertaken in reliance on a ratio basket based on the Fixed Charge Coverage Ratio, Senior Secured Net Leverage Ratio or Total Net Leverage Ratio, such ratio(s) shall be calculated without regard to the incurrence of any Indebtedness under any revolving facility or letter of credit facility immediately prior to or in connection therewiththerewith (other than any Designated Revolving Commitments). For purposes of the calculation of any financial ratio hereunder (including the Senior Secured Net Leverage Ratio or Total Net Leverage Ratio), in no event shall any cash proceeds of any new Indebtedness being incurred in connection with the calculation of such ratio definition be netted from the numerator in such ratio for purposes of determining whether such Indebtedness can be incurred incurred, but pro forma effect shall otherwise be given to the use of such proceeds. If any item of Indebtedness, Disqualified Stock or Preferred Stock, Lien, Permitted Lien, Restricted Payment, Permitted Investment or other transaction or action (any of the foregoing in a single transaction or a series of substantially concurrent related transactions) is incurred, issued, taken or consummated in reliance on categories (or subcategories within any category) of exceptions, thresholds or baskets measured by reference to a percentage of Consolidated EBITDAEBITDA or Total Assets, and any Indebtedness, Disqualified Stock or Preferred Stock, Lien, Permitted Lien, Restricted Payment, Permitted Investment or other transaction or action (including in connection with refinancing thereof) would subsequently exceed the applicable percentage of Consolidated EBITDA or Total Assets if calculated based on the Consolidated EBITDA or Total Assets on a later date (including the date of any refinancing), such percentage of Consolidated EBITDA or Total Assets will not be deemed to be exceeded (and in the case of refinancing any Indebtedness, Disqualified Stock or Preferred Stock, to the extent the principal amount or the liquidation preference of such newly incurred or issued Indebtedness, Disqualified Stock or Preferred Stock does not exceed the maximum principal amount, liquidation preference or amount of Refinancing Indebtedness in respect of the Indebtedness, Disqualified Stock or Preferred Stock being refinanced, extended, replaced, refunded, renewed or defeased). Any reference in this Indenture to a merger, transfer, consolidation, amalgamation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of, or by, a limited liability company, limited partnership or trust, or an allocation of assets to a series of a limited liability company, limited partnership or trust (or the unwinding of such a division or allocation), as if it were a merger, transfer, consolidation, amalgamation, assignment, sale or transfer, or similar term, as applicable, to, of or with a separate Person. Any division of a limited liability company, limited partnership or trust shall constitute a separate Person under this Indenture (and each division of any limited liability company, limited partnership or trust that is a Subsidiary, Unrestricted Subsidiary, joint venture or any other like term shall also constitute such a Person or entity). Each reference in this Indenture with respect to the priority of Liens shall be determined without regard to the control of applicable remedies, in each case, unless otherwise expressly stated in this Indenture.

Measuring Compliance. (a) Notwithstanding anything to the contrary herein (except as set forth in herein, the proviso to clause (c)(i) of Section 4.09 hereof)Consolidated First Lien Net Leverage Ratio, in the event any item of IndebtednessConsolidated Secured Net Leverage Ratio, Disqualified Stock or Preferred Stockthe Consolidated Net Leverage Ratio, Lien, Permitted Lien, Restricted Payment, Permitted Investment or other transaction or action (any of the foregoing in a single transaction or a series of substantially concurrent related transactions) meets the criteria of one or more than one categories of exceptions, thresholds or baskets under this Indenture (including within any defined terms), including any financial ratio based exceptions, thresholds or baskets (including and the Fixed Charge Coverage Ratio, Senior Secured Net Leverage Ratio or Total Net Leverage Ratio)shall be calculated in the manner prescribed by this section. (b) Notwithstanding anything in this Indenture to the contrary, (1i) Parent, any of its Restricted Subsidiaries, any Parent Entity, any successor entity of any of the Issuer willforegoing, or a third party (the “Testing Party”) may rely on more than one basket or exception hereunder (including both ratio-based and non-ratio based baskets and exceptions, and including partial reliance on different baskets that, collectively, permit the entire proposed transaction) at the time of any proposed transaction, and the Testing Party may, in its sole discretion, at any later time divide, classify, or reclassify such transaction (or any portion thereof) in any manner that complies with the available baskets and exceptions hereunder at such later time (provided that, with respect to reclassification of Indebtedness and Liens, any such reclassification shall be entitled subject to divide the parameters of the covenants described under Section 4.09 and classify 4.13, as applicable, (ii) unless the Testing Party elects otherwise, if Parent or its Restricted Subsidiaries in connection with any transaction or series of such related transaction (A) incurs Indebtedness, creates Liens, makes Asset Sales, makes Investments, designates any Subsidiary as restricted or unrestricted, repays any Indebtedness, makes any Restricted Payment, or takes any other action under or as permitted by a ratio-based basket, and later re(B) incurs Indebtedness, creates Liens, makes Asset Sales, makes Investments, designates any Subsidiary as restricted or unrestricted, makes any Restricted Payment, repays any Indebtedness, or takes any other action under or as permitted under a non-divide ratio-based basket, then the applicable ratio will be calculated with respect to any such action under the applicable ratio-based basket without regard to any such action under such non-ratio-based basket made in connection with such transaction or series of related transactions, (iii) if Parent or its Restricted Subsidiaries enters into any revolving, delayed draw, or other committed debt facility, the Testing Party may elect to determine compliance of such debt facility (including the incurrence of Indebtedness and reclassify on or more occasions (based on circumstances existing Liens from time to time in connection therewith) with this Indenture on the date commitments with respect thereto are first received, assuming the full amount of such facility is incurred (and any applicable Liens are granted) on such re-division and reclassification) any date, in which case, such item of Indebtedness, Disqualified Stock committed amount may thereafter be borrowed or Preferred Stock, Lien, Permitted Lien, Restricted Payment, Permitted Investment or other transaction or actionreborrowed, in whole or in part, among one or more than one categories from time to time, without further compliance with such applicable ratio-based basket hereunder, in lieu of exceptionsdetermining such compliance on any subsequent date (including any date on which Indebtedness is incurred pursuant to such facility); provided that, thresholds or baskets under this Indenturein each case, any future calculation of such ratio-based basket shall only include the amount borrowed and outstanding as of the date of determination, and (2iv) availability and utilization of if Parent or any category of financial ratio based exceptions, thresholds and baskets (i.e., incurrenceRestricted Subsidiary incurs Indebtedness under a ratio-based exceptionsbasket, thresholds and basketssuch ratio-based basket (together with any other ratio-based basket utilized in connection therewith, including in respect of other Indebtedness, Liens, Asset Sales, Investments, or Restricted Payments) shall first will be calculated excluding the cash proceeds of such Indebtedness for netting purposes; provided that the actual application of such proceeds may reduce Indebtedness for purposes of determining compliance with any such applicable ratio. For example, if Parent incurs Indebtedness under clause (1)(b) of the definition of “Permitted Debt” (the “Fixed Incremental Amount”) on the same date that it incurs Indebtedness under the Maximum Incremental Leverage Amount, then the Consolidated First Lien Net Leverage Ratio, the Consolidated Secured Net Leverage Ratio, and any other applicable ratio will be calculated with respect to such incurrence under the Maximum Incremental Leverage Amount without regard to any incurrence of Indebtedness under the Fixed Incremental Amount or any other non-ratio-based basket. Unless the Testing Party elects otherwise, such Indebtedness shall be deemed incurred first under the Maximum Incremental Leverage Amount to the extent permitted (and calculated prior to giving effect to the amount or portion any substantially simultaneous incurrence of any item Indebtedness based on a basket or exception that is not based on a financial ratio, including under the Fixed Incremental Amount or otherwise under clause (1) of Indebtednessthe definition of “Permitted Debt”, Disqualified Stock or Preferred Stock, Lien, Permitted Lien, Restricted Payment, Permitted Investment or other transaction or action to be utilized with any balance incurred under any other category clause of exceptionsthe definition of “Permitted Debt,” including the Fixed Incremental Amount, thresholds and baskets or as Indebtedness permitted pursuant to the Fixed Charge Coverage Ratio Test or the Consolidated Net Leverage Ratio Test. For purposes of determining compliance with Section 4.09, in the event that any Indebtedness (excluding financial ratio-based or incurrence-based basketany portion thereof) at such time meets the criteria of determination (including Maximum Incremental Leverage Amount or Fixed Incremental Amount, the Testing Party may, in its sole discretion, at the time of any initial division and classification and incurrence, divide, classify, or reclassify, or at any later re-divisions and reclassificationstime divide, classify, or reclassify, such Indebtedness (or any portion thereof) and thereafterin any manner that complies with Section 4.09 on the date of classification or reclassification, availability and utilization as applicable, except that indebtedness under the Credit Agreement outstanding on the Issue Date may not be reclassified. Parent hereby elects that, on the Issue Date, the entire committed amount of any category the revolving portion of exceptions, thresholds and baskets that are not financial ratio based (including all exceptions, thresholds and baskets based on fixed Dollar amounts or a percentage of Consolidated EBITDA or total assets) the Credit Agreement shall be calculated. Each item of item of Indebtedness, Disqualified Stock or Preferred Stock, Lien, Permitted Lien, Restricted Payment, Permitted Investment or other transaction or action will be deemed to have been incurredincurred under clause (1)(a) of the definition of “Permitted Debt” and not under any ratio-based basket. (c) Notwithstanding anything in this Indenture to the contrary, issuedwhen (i) calculating any applicable basket, made ratio, or financial metric in connection with the incurrence of Indebtedness, the creation of Liens, the making of any Asset Sale, the making of an Investment, the making of a Restricted Payment, the designation of a Subsidiary as restricted or unrestricted, the repayment of Indebtedness, or for any other purpose, (ii) determining whether any Default or Event of Default has occurred, is continuing, or would result from any action, or (iii) determining compliance with any other condition precedent to any action or transaction, in each case of clauses (i) through (iii) in connection with a Limited Condition Transaction or a Specified Transaction, the date of determination of such basket, ratio or financial metric, whether any Default or Event of Default has occurred, is continuing, or would result therefrom, or the satisfaction of any other condition precedent shall, at the option of the Testing Party (the Testing Party’s election to exercise such option in connection with any Limited Condition Transaction or Specified Transaction, a “Transaction Election”), be deemed to be the date of declaration of such Restricted Payment or the date that the definitive agreement for such Restricted Payment, Investment, acquisition, Asset Sale, or incurrence or repayment, repurchase, or refinancing of Indebtedness, is entered into, the date a public announcement of an intention to make an offer in respect of the target of such acquisition or Investment, or the date of such notice, which may be conditional, of such incurrence or repayment, repurchase, or refinancing of Indebtedness is given to the holders of such Indebtedness(any such date, the “Transaction Test Date”). If on a pro forma basis after giving effect to such Limited Condition Transaction or Specified Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) such baskets, ratios, financial metrics, absence of defaults, satisfaction of conditions precedent, and other provisions are calculated as if such Limited Condition Transaction or Specified Transaction or other transactions had occurred at the beginning of the most recent Test Period ending prior to the Transaction Test Date for which internal financial statements are available, the Testing Party could have taken firstsuch action on the relevant Transaction Test Date in compliance with the applicable baskets, ratios, financial metrics, or other provisions, such provisions shall be deemed to have been complied with. For the avoidance of doubt, (i) if any of such baskets, ratios, financial metrics, absence of defaults, satisfaction of conditions precedent, or other provisions are exceeded or breached as a result of fluctuations in such baskets, ratio, and financial metrics (including due to fluctuations in Consolidated Net Income or Consolidated EBITDA of the Testing Party or any target company), a change in facts and circumstances or other provisions at or prior to the consummation of the relevant Limited Condition Transaction or Specified Transaction, such baskets, ratios, financial metrics, absence of defaults, satisfaction of conditions precedent, and other provisions will not be deemed to have been exceeded, breached, or otherwise failed as a result of such fluctuations or changed circumstances solely for purposes of determining whether the Limited Condition Transaction or Specified Transaction and any related transactions is permitted hereunder and (ii) such baskets, ratios, financial metrics, and compliance with such conditions shall not be tested at the time of consummation of such Limited Condition Transaction or related Specified Transactions except as contemplated in clause (a) of the immediately succeeding proviso; provided, however, that (a) if financial statements for one or more subsequent fiscal quarters shall have become available, the Testing Party may elect, in its sole discretion, to re-determine all such baskets, ratios and financial metrics on the extent availablebasis of such financial statements, in which case, such date of redetermination shall thereafter be deemed to be the applicable Transaction Test Date for purposes of such baskets, ratios, and financial metrics and (b) if any ratios or financial metrics improve or baskets increase as a result of such fluctuations, such improved ratios, financial metrics, or baskets may be utilized. If the Testing Party has made a Transaction Election for any Limited Condition Transaction or Specified Transaction, then in connection with any subsequent calculation of any ratio, financial metric, or basket availability with respect to any other Limited Condition Transaction or Specified Transaction or otherwise on or following the relevant Transaction Test Date and prior to the earlier of the date on which such Limited Condition Transaction or Specified Transaction is consummated or the date that the definitive agreement for such Limited Condition Transaction or Specified Transaction is terminated or expires without consummation of such Limited Condition Transaction or Specified Transaction, any such ratio, financial metric, or basket shall be calculated on a pro forma basis assuming such Limited Condition Transaction or Specified Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated. For purposes of any calculation pursuant to any available categories this paragraph of financial ratio based exceptions, thresholds and baskets (including the Fixed Charge Coverage Ratio, Senior Secured Net Leverage Ratio Fixed Charges may be calculated using an assumed interest rate for the Indebtedness to be incurred in connection with such Limited Condition Transaction or Total Net Leverage RatioSpecified Transaction based on the indicative interest margin (giving effect to any step-ups or margin caps, but without giving effect to any increases as a result of market “flex”) contained in any financing commitment documentation with respect to such Indebtedness or, if no such indicative interest margin exists, as set forth above reasonably determined by the Testing Party in good faith. For the avoidance of doubt, if the Testing Party has exercised its option pursuant to the foregoing and any Default or Event of Default occurs following the Transaction Test Date (including any new Transaction Test Date) for the applicable Limited Condition Transaction or Specified Transaction and prior to any other category of exceptions, thresholds and baskets. If any item of Indebtedness, Disqualified Stock or Preferred Stock, Lien, Permitted Lien, Restricted Payment, Permitted Investment or other transaction or action (or any portion on the date of the foregoing) previously divided and classified (consummation of such Limited Condition Transaction or re-divided and reclassified) as set forth above under Specified Transaction, any category such Default or Event of non-financial ratio based exceptions, thresholds or baskets could subsequently be re-divided and reclassified under a category of financial ratio based exceptions, thresholds or baskets (including the Fixed Charge Coverage Ratio, Senior Secured Net Leverage Ratio or Total Net Leverage Ratio), such re-division and reclassification Default shall be deemed to occur automatically and item of Indebtedness, Disqualified Stock not have occurred or Preferred Stock, Lien, Permitted Lien, Restricted Payment, Permitted Investment or other transaction or action (or any portion of the foregoing) shall cease to be deemed made or outstanding for purposes of any category of exceptions, thresholds and baskets that are not financial ratio based. Notwithstanding anything to the contrary herein, in the event an item of Indebtedness, Disqualified Stock or Preferred Stock (or any portion thereof) is incurred or issued, any Lien is incurred or other transaction is undertaken in reliance on a ratio basket based on the Fixed Charge Coverage Ratio, Senior Secured Net Leverage Ratio or Total Net Leverage Ratio, such ratio(s) shall be calculated without regard to the incurrence of any Indebtedness under any revolving facility prior to or in connection therewith. For purposes of the calculation of any financial ratio hereunder (including the Senior Secured Net Leverage Ratio or Total Net Leverage Ratio), in no event shall any cash proceeds of any new Indebtedness being incurred in connection with the calculation of such ratio definition be netted from the numerator in such ratio continuing for purposes of determining whether any action being taken in connection with such Indebtedness can be incurred but pro forma effect shall otherwise be given Limited Condition Transaction or Specified Transaction is permitted under this Indenture. (d) Notwithstanding anything to the contrary, in connection with a Testing Party’s election to use a Transaction Test Date in connection with a Limited Condition Transaction or Specified Transaction, any reference to “date of such proceeds. If any item incurrence” or “time of Indebtedness, Disqualified Stock or Preferred Stock, Lien, Permitted Lien, Restricted Payment, Permitted Investment incurrence” or other transaction similar phrases with respect to the date or time an action is taken herein will mean the Transaction Test Date. (any e) For purposes of determining the foregoing in a single transaction or a series maturity date of substantially concurrent related transactions) is incurred, issued, taken or consummated in reliance on categories of exceptions, thresholds or baskets measured by reference to a percentage of Consolidated EBITDA, and any Indebtedness, Disqualified Stock customary bridge loans that are subject to customary conditions (as determined by Parent in good faith, including conditions requiring no payment or Preferred Stockbankruptcy event of default) that would either automatically be extended as, Lienconverted into, Permitted Lienor required to be exchanged for, Restricted Paymentpermanent refinancing shall be deemed to have the maturity date as so extended, Permitted Investment converted, or other exchanged. (f) For purposes of this Indenture, where the permissibility of a transaction or action (including determinations of required actions or circumstances depend upon compliance with, or are determined by reference to, amounts stated in connection with refinancing thereof) would subsequently exceed the applicable percentage of Consolidated EBITDA if calculated U.S. dollars, any requisite currency translation shall be based on the Consolidated EBITDA relevant currency exchange (as quoted by a known dealer in such currency) in effect on a later date (including the Business Day immediately preceding the date of any refinancing), such percentage of Consolidated EBITDA will transaction or determination and shall not be deemed to be exceeded (affected by subsequent fluctuations in exchange rates and will, in the case of refinancing any Indebtedness, Disqualified Stock or Preferred Stockreflect the currency translation effects, determined in accordance with GAAP, of Currency Agreements permitted hereunder for currency exchange risks with respect to the extent applicable currency in effect on the principal date of determination of the U.S. dollar amount of such Indebtedness. (g) With respect to any Lien securing Indebtedness that was permitted to secure such Indebtedness at the time of the incurrence of such Indebtedness, such Lien shall also be permitted to secure any Increased Amount of such Indebtedness. The “Increased Amount” of any Indebtedness shall mean any increase in the amount of such Indebtedness in connection with any accrual of interest, the accretion of accreted value, the amortization of original issue discount, the payment of interest in the form of additional Indebtedness with the same terms, accretion of original issue discount or the liquidation preference of such newly incurred or issued Indebtedness, Disqualified Stock or Preferred Stock does not exceed and increases in the maximum principal amount, liquidation preference or amount of Refinancing Indebtedness outstanding solely as a result of fluctuations in respect the exchange rate of currencies or increases in the value of property securing Indebtedness, Disqualified Stock or Preferred Stock being refinanced, extended, replaced, refunded, renewed or defeased).