Pro Forma and Other Calculations. (a) Notwithstanding anything to the contrary herein, financial ratios and tests, including the Consolidated Total Debt to EBITDAX Ratio and the Consolidated Current Ratio shall be calculated in the manner prescribed by this Section 1.12; provided, that notwithstanding anything to the contrary in clause (b), (c) or (d) of this Section 1.12, when calculating the Consolidated Total Debt to EBITDAX Ratio or the Consolidated Current Ratio, as applicable, for purposes of Section 10.11 (other than for the purpose of determining pro forma compliance with Section 10.11), the events described in this Section 1.12 that occurred subsequent to the end of the applicable Test Period shall not be given pro forma effect. In addition, whenever a financial ratio or test is to be calculated on a Pro Forma Basis, the reference to the “Test Period” for purposes of calculating such financial ratio or test shall be deemed to be a reference to, and shall be based on, the most recently ended Test Period for which internal financial statements of the Borrower (or applicable Parent Entity, as applicable) are available (as determined in good faith by the Borrower). (b) For purposes of calculating any financial ratio or test or compliance with any covenant determined by reference to Consolidated EBITDAX (or Consolidated Total Assets), Specified Transactions (with any incurrence or repayment of any Indebtedness in connection therewith to be subject to clause (d) of this Section 1.12) that have been made (i) during the applicable Test Period or (ii) if applicable as described in clause (a) above, subsequent to such Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, shall be calculated on a Pro Forma Basis assuming that all such Specified Transactions (and any increase or decrease in Consolidated EBITDAX and the component financial definitions used therein attributable to any Specified Transaction) had occurred on the first day of the applicable Test Period (or, in the case of Consolidated Total Assets, on the last day of the applicable Test Period). If since the beginning of any applicable Test Period any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Borrower or any of its Restricted Subsidiaries since the beginning of such Test Period shall have made any Specified Transaction that would have required adjustment pursuant to this Section 1.12, then such financial ratio or test (or Consolidated Total Assets) shall be calculated to give pro forma effect thereto in accordance with this Section 1.12; provided that with respect to any pro forma calculations to be made in connection with any acquisition or investment in respect of which financial statements for the relevant target are not available for the same Test Period for which internal financial statements of the Borrower are available, the Borrower shall determine such pro forma calculations on the basis of the available financial statements (even if for differing periods) or such other basis as determined on a commercially reasonable basis by the Borrower. (c) [Reserved]. (d) In the event that (w) the Borrower or any Restricted Subsidiary incurs (including by assumption or guarantees) or repays (including by redemption, repayment, retirement, discharge, defeasance or extinguishment) any Indebtedness (other than Indebtedness incurred or repaid under any revolving credit facility unless such Indebtedness has been permanently repaid and not replaced), (x) the Borrower or any Restricted Subsidiary issues, repurchases or redeems Disqualified Stock or (y) any Restricted Subsidiary issues, repurchases or redeems Preferred Stock, (i) during the applicable Test Period or (ii) subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then such financial ratio or test shall be calculated giving pro forma effect to such incurrence or repayment of Indebtedness or such issuance, refinancing or redemption of Disqualified Stock or Preferred Stock to the extent required, as if the same had occurred on the last day of the applicable Test Period. (e) Notwithstanding anything to the contrary in this Section 1.12 or in any classification under GAAP of any Person, business, assets or operations in respect of which a definitive agreement for the disposition thereof has been entered into, at the election of the Borrower, no pro forma effect shall be given to any discontinued operations (and the Consolidated EBITDAX or Consolidated Total Assets attributable to any such Person, business, assets or operations shall not be excluded for any purposes hereunder) until such disposition shall have been consummated. (f) Notwithstanding anything in this Agreement or any Credit Document to the contrary, in the event any Lien, Indebtedness, Disposition, Investment, Restricted Payment, transaction, action, judgment or amount under any provision in this Agreement or any other Credit Document (or any portion thereof) meets the criteria of one or more than one of the categories of permitted Baskets under this Agreement (including within any defined terms), including any Fixed Basket or Non-Fixed Basket, as applicable, the Borrower shall be permitted, in its sole discretion, at the time of incurrence to divide and classify and to later, at any time and from time to time, re-divide and re-classify (including to re-classify utilization of any Fixed Basket as being incurred under any Non-Fixed Basket or other Fixed Basket or utilization of any Non-Fixed Basket as being incurred under any Fixed Basket or other Non-Fixed Basket) on one or more occasions (based on circumstances existing on the date of any such re-division and re-classification) any such Lien, Indebtedness, Disposition, Investment, Restricted Payment, transaction, action, judgment, or amount in whole or in part, among one or more than one applicable Baskets under this Agreement (in the case of re-classification or re-division, so long as the amount so re-classified or re-divided is permitted at the time of such re-classification or re-division to be incurred pursuant to the applicable Basket into which such amount is re-classified or re-divided at such time). For the avoidance of doubt, the amount of any Lien, Indebtedness, Disposition, Investment, Restricted Payment, transaction, action, judgment, or amount that shall be allocated to each such Basket shall be determined by the Borrower at the time of such division, classification, re-division or re-classification, as applicable. For all purposes hereunder, (x) “Fixed Basket” shall mean any Basket that is subject to a fixed-Dollar limit (including Baskets based on a percentage of Consolidated EBITDAX or Consolidated Total Assets) and (y) “Non-Fixed Basket” shall mean any Basket that is subject to compliance with a financial ratio or test (including any Basket requiring compliance with the Leverage Ratio Covenant on a Pro Forma Basis) (any such ratio or test, a “Financial Incurrence Test”).
Appears in 1 contract
Pro Forma and Other Calculations. (a) Notwithstanding anything to the contrary herein, financial ratios and teststests (including measurements of Consolidated EBITDA, but excluding the financial maintenance covenant in Section 9.12 hereof), including the Consolidated Total Debt to EBITDAX Fixed Charge Coverage Ratio and the Consolidated Current Total Net Leverage Ratio shall be calculated in the manner prescribed by this Section 1.12; providedprovided that, that notwithstanding anything to the contrary in clause clauses (b), (c), (d) or (de) of this Section 1.12, when calculating the Consolidated Total Debt to EBITDAX Net Leverage Ratio or the Consolidated Current Ratio, as applicable, for purposes of (i) the definition of "Applicable Margin" and (ii) calculating the covenants in Section 10.11 (other than for the purpose of determining pro forma compliance with Section 10.11)9.12, the events described in this Section 1.12 that occurred subsequent to the end of the applicable Test Period shall not be given pro forma effect. In addition, subject to Section 1.14, whenever a financial ratio or test is to be calculated on a Pro Forma Basispro forma basis or requires pro forma compliance, the reference to the “"Test Period” " for purposes of calculating such financial ratio or test shall be deemed to be a reference to, and shall be based on, the most recently ended Test Period for which internal financial statements of the Borrower (or applicable Parent Entity, as applicable) are available (as determined in good faith by the Borrower)Section 8.01 Financials have been delivered.
(b) For purposes of calculating any financial ratio or test or compliance with any covenant determined by reference to (including Consolidated EBITDAX (or Consolidated Total AssetsEBITDA), Specified Transactions Investments, acquisitions, dispositions, mergers, amalgamations, consolidations and discontinued operations (as determined in accordance with any incurrence or repayment of any Indebtedness in connection therewith to be subject to clause (d) of this Section 1.12GAAP) that have been made (i) by the Borrower or any of its Restricted Subsidiaries during the applicable Test Period or (ii) if applicable as described in clause (a) above, subsequent to such Test Period and on or prior to or simultaneously with the event for which the calculation of any such ratio is made, made shall be calculated on a Pro Forma Basis pro forma basis assuming that all such Specified Transactions Investments, acquisitions, dispositions, mergers, amalgamations, consolidations and discontinued operations (and the change in any increase or decrease associated fixed charge obligations and the change in Consolidated EBITDAX and the component financial definitions used therein attributable to any Specified TransactionEBITDA resulting therefrom) had occurred on the first day of the applicable Test Period (or, in the case of Consolidated Total AssetsInvestment Cash Equivalents, on the last day of the applicable Test Period). If If, since the beginning of any applicable Test Period such period, any Person that subsequently became a Restricted Subsidiary or was merged, merged or amalgamated or consolidated with or into the Borrower or any of its Restricted Subsidiaries since the beginning of such Test Period period shall have made any Specified Transaction Investment, acquisition, disposition, merger, amalgamation, consolidation or discontinued operation that would have required adjustment pursuant to this Section 1.12definition, then such financial ratio or test (or including Consolidated Total AssetsEBITDA) shall be calculated to give giving pro forma effect thereto in accordance with this Section 1.12; provided that with respect to any pro forma calculations to be made in connection with any acquisition for such period as if such Investment, acquisition, disposition, merger, amalgamation, consolidation or investment in respect of which financial statements for discontinued operation had occurred at the relevant target are not available for the same Test Period for which internal financial statements beginning of the Borrower are available, the Borrower shall determine such pro forma calculations on the basis of the available financial statements (even if for differing periods) or such other basis as determined on a commercially reasonable basis by the Borrowerapplicable Test Period.
(c) [Reserved]Whenever pro forma effect is to be given to an Investment, acquisition, disposition, merger, amalgamation, consolidation or discontinued operation, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Borrower (and may include, for the avoidance of doubt, cost savings and synergies resulting from such Investment, acquisition, merger, amalgamation or consolidation which is being given pro forma effect that have been or are expected to be realized; provided that any pro forma adjustments in respect of cost savings and synergies shall not exceed, for any Test Period (other than charges, accruals, reserves, costs, expenses, cost savings, synergies or other amounts related to the Borrower's Midlothian, Texas facility, which such charges, accruals, reserves, costs, expenses, cost savings, synergies or other amounts shall not be subject to such 20.0% cap), an amount, when taken together with the aggregate amounts added pursuant to clauses (d)(x), (j) and (m) of the definition of the term "Consolidated EBITDA" for such Test Period, together with the aggregate amounts excluded pursuant to clause (1) and clause (9) of Consolidated Net Income (to the extent any such charges set forth in clause (1) and clause (9) of Consolidated Net Income are reductions of the type that could be added back pursuant to clause (d)(x) of "Consolidated EBITDA") equal to 20.0% of Consolidated EBITDA for such Test Period prior to giving effect to any adjustments pursuant to this paragraph, clauses (d)(x), (j) and (m) of the definition of the term "Consolidated EBITDA" and with the aggregate amounts excluded pursuant to clause (1) and clause (9) of Consolidated Net Income (to the extent any such charges set forth in clause (1) and clause (9) of Consolidated Net Income are reductions of the type that could be added back pursuant to clause (d)(x) of "Consolidated EBITDA").
(d) In the event that (w) the Borrower or any of its Restricted Subsidiary incurs Subsidiaries Incurs (including by assumption or guaranteesguarantee) or repays refinances (including by redemption, repurchase, repayment, retirement, discharge, defeasance retirement or extinguishment) any Indebtedness (other than Indebtedness incurred Indebtedness, in each case included in the calculations of any financial ratio or repaid under any revolving credit facility unless such Indebtedness has been permanently repaid and not replaced), (x) the Borrower or any Restricted Subsidiary issues, repurchases or redeems Disqualified Stock or (y) any Restricted Subsidiary issues, repurchases or redeems Preferred Stocktest, (i) during the applicable Test Period or (ii) subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then such financial ratio or test shall be calculated giving pro forma effect to such incurrence Incurrence or repayment refinancing of Indebtedness or such issuanceIndebtedness, refinancing or redemption of Disqualified Stock or Preferred Stock in each case to the extent required, as if the same had occurred on the last day of the applicable Test Period (except in the case of the Consolidated Fixed Charge Coverage Ratio, in which case such Incurrence or refinancing of Indebtedness will be given effect, as if the same had occurred on the first day of the applicable Test Period); provided that the foregoing shall not apply (i) to any calculation of the Consolidated Fixed Charge Coverage Ratio pursuant to Section 9.12 or (ii) when calculating the Consolidated Total Net Leverage Ratio for purposes of (i) the definition of "Applicable Margin".
(e) If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date of the event for which the calculation of the Consolidated Fixed Charge Coverage Ratio is made had been the applicable rate for the entire period (taking into account any Hedging Obligations applicable to such Indebtedness) provided that, for purposes of any calculation of the Consolidated Fixed Charge Coverage Ratio prior to December 31, 2024, it is understood that only the aggregate amount of Consolidated Cash Interest Expense of the Borrower and its Restricted Subsidiaries actually payable during any such period shall be included in the calculation under clause (a) above without imposing any annualization or similar mechanism to such calculation. Interest on a Financing Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a Responsible Officer of the Borrower to be the rate of interest implicit in such Financing Lease Obligation in accordance with GAAP. For purposes of making the computation referred to above, interest on any Indebtedness under a revolving credit facility shall be computed based upon the average daily balance of such Indebtedness during the applicable period. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower may designate.
(f) Any such pro forma calculations may include, without limitation, (1) all adjustments of the type described in the definition of "Consolidated EBITDA" to the extent such adjustments, without duplication, continue to be applicable to such Test Period, and (2) adjustments calculated in accordance with Regulation S-X under the Securities Act.
(g) For purposes of determining the permissibility of any action, change, transaction or event that requires a calculation of any Fixed Amount, Incurrence-Based Amount or, except as described in Section 1.12(a), any other financial ratio, test, covenant, calculation or measurement, such Fixed Amount, Incurrence-Based Amount or other financial ratio, test, covenant, calculation or measurement shall be calculated at the time such action is taken (subject to Section 1.14), such change is made, such transaction is consummated or such event occurs, as the case may be, and no Default or Event of Default shall be deemed to have occurred solely as a result of a change in such Fixed Amount, Incurrence-Based Amount or other financial ratio, test, covenant, calculation or measurement occurring after the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be.
(h) Notwithstanding anything to the contrary in this Section 1.12 or in any classification under GAAP of any Person, business, assets or operations in respect of which a definitive agreement for the disposition thereof has been entered into, at the election of the Borrower, no pro forma effect shall be given to any discontinued operations (and the Consolidated EBITDAX or Consolidated Total Assets attributable to any such Person, business, assets or operations shall not be excluded for any purposes hereunder) until such disposition shall have been consummated.
(f) Notwithstanding anything in this Agreement or any Credit Document to the contraryherein, in the event any Lien, Indebtedness, Disposition, Investment, Restricted Payment, transaction, action, judgment or amount under any provision in this Agreement or any other Credit Document an item of Indebtedness (or any portion thereof) meets the criteria of one is Incurred, any Lien is Incurred or more than one of the categories of permitted Baskets under this Agreement (including within any defined terms)other transaction is undertaken in reliance on an Incurrence-Based Amount, including any Fixed Basket or Nonsuch Incurrence-Fixed Basket, as applicable, the Borrower Based Amount shall be permitted, in its sole discretion, at calculated without regard to the time of incurrence to divide and classify and to later, at any time and from time to time, re-divide and re-classify (including to re-classify utilization Incurrence of any Fixed Basket as being incurred under any Non-Fixed Basket letter of credit facility immediately prior to, simultaneously or other Fixed Basket or utilization of any Non-Fixed Basket as being incurred under any Fixed Basket or other Non-Fixed Basket) on one or more occasions (based on circumstances existing on the date of any such re-division and re-classification) any such Lien, Indebtedness, Disposition, Investment, Restricted Payment, transaction, action, judgmentcontemporaneously with, or amount in whole or in part, among one or more than one applicable Baskets under this Agreement (in the case of re-classification or re-division, so long as the amount so re-classified or re-divided is permitted at the time of such re-classification or re-division to be incurred pursuant to the applicable Basket into which such amount is re-classified or re-divided at such time). For the avoidance of doubt, the amount of any Lien, Indebtedness, Disposition, Investment, Restricted Payment, transaction, action, judgment, or amount that shall be allocated to each such Basket shall be determined by the Borrower at the time of such division, classification, re-division or re-classification, as applicable. For all purposes hereunder, (x) “Fixed Basket” shall mean any Basket that is subject to a fixed-Dollar limit (including Baskets based on a percentage of Consolidated EBITDAX or Consolidated Total Assets) and (y) “Non-Fixed Basket” shall mean any Basket that is subject to compliance with a financial ratio or test (including any Basket requiring compliance with the Leverage Ratio Covenant on a Pro Forma Basis) (any such ratio or test, a “Financial Incurrence Test”)connection therewith.
Appears in 1 contract
Sources: Credit Agreement (SunOpta Inc.)
Pro Forma and Other Calculations. (a) Notwithstanding anything to the contrary herein, financial ratios and tests, tests (including the measurements of Consolidated Total Debt to EBITDAX Ratio Assets, Consolidated Cash EBITDA, Liquidity or Consolidated EBITDA and the Consolidated Current Total Net Leverage Ratio, the Total Net Cash Leverage Ratio, the Contract Asset Balance Coverage Ratio or the LTV Ratio), shall be calculated in the manner prescribed by this Section 1.121.11; providedprovided that, that notwithstanding anything to the contrary in clause clauses (b), (c) or (d) of this Section 1.121.11, (I) when calculating the Consolidated Total Debt to EBITDAX Net Leverage Ratio or the Consolidated Current Ratiofor purposes of, as applicable, (i) [reserved], (ii) [reserved] and (iii) Section 6.13 and (II) when calculating the Total Net Cash Leverage Ratio for purposes of Section 10.11 (other than for the purpose of determining pro forma compliance with Section 10.112.11(d), in each case, the events described in this Section 1.12 1.11 that occurred subsequent to the end of the applicable Test Period shall not be given pro forma effect; provided, however, that for purposes of calculating the ECF Percentage, Consolidated Total Net Debt shall be determined after giving pro forma effect to the Permitted ECF Recalculation Considerations assuming such prepayments had been made on the last day of such fiscal year. In addition, whenever a financial ratio or test is to be calculated on a Pro Forma Basispro forma basis or requires pro forma compliance, the reference to the “Test Period” for purposes of calculating such financial ratio or test shall be deemed to be a reference to, and shall be based on, the Test Period most recently ended Test Period for which internal financial statements of the Borrower have been (or applicable Parent Entity, as applicablewere required to have been) are available delivered pursuant to Section 5.01(a) or (as determined in good faith by the Borrowerb).
(b) For purposes of calculating any financial ratio or test or compliance with any covenant determined by reference to Consolidated EBITDAX (or including Consolidated Total Assets, Consolidated Cash EBITDA or Consolidated EBITDA), Specified Transactions (with any incurrence or repayment Refinancing of any Indebtedness in connection therewith to be subject to clause (d) of this Section 1.121.11) that have been made (i) during the applicable Test Period or (ii) if applicable as described in clause (a) above, subsequent to such Test Period 87 US-DOCS\115047431.4127573765.6
(c) Whenever pro forma effect or a determination of pro forma compliance is to be given to a Specified Transaction or a Specified Restructuring, the pro forma calculations shall be made in good faith by a Responsible Officer of Holdings and prior may include, for the avoidance of doubt, the amount of “run rate” cost savings, operating expense reductions and cost synergies and other synergies projected by Holdings in good faith to result from or simultaneously with relating to any Specified Transaction (including the event Transactions) or Specified Restructuring that is being given pro forma effect or for which a determination of pro forma compliance is being made that have been realized or are expected to be realized and for which the calculation actions necessary to realize such cost savings, operating expense reductions, cost synergies or other synergies have been taken or initiated, have been committed to be taken or initiated, with respect to which substantial steps have been taken or initiated or which are expected to be taken or initiated (in the good faith determination of any such ratio is made, shall be the Borrower) (calculated on a Pro Forma Basis assuming that all pro forma basis as though such Specified Transactions (cost savings, operating expense reductions, cost synergies and any increase or decrease in Consolidated EBITDAX and the component financial definitions used therein attributable to any Specified Transaction) other synergies had occurred been realized on the first day of such period and as if such cost savings, operating expense reductions, cost synergies and other synergies were realized during the applicable entirety of such period and “run rate” means the full recurring benefit for a period that is associated with any action taken, any action committed to be taken, any action with respect to which substantial steps have been taken or initiated or any action that is expected to be taken (including any savings expected to result from the elimination of Public Company Costs) net of the amount of actual benefits realized during such period from such actions, and any such adjustments shall be included in the initial pro forma calculations of such financial ratios or tests and during any subsequent Test Period in which the effects thereof are expected to be realized) relating to such Specified Transaction or Specified Restructuring, and any such adjustments included in the initial pro forma calculations shall continue to apply to subsequent calculations of such financial ratios or tests, including during any subsequent Test Periods in which the effects thereof are expected to be realizable; provided that (A) such amounts are reasonably identifiable and factually supportable in the good faith judgment of Holdings, (B) such actions are taken, such actions are committed to be taken, substantial steps with respect to such action have been taken or initiated or such actions are expected to be taken no later than six fiscal quarters after the date of consummation of such Specified Transaction or the date of initiation of such Specified Restructuring, (C) no amounts shall be added to the extent duplicative of any amounts that are otherwise added back in computing Consolidated EBITDA or Consolidated Cash EBITDA (or any other components thereof), whether through a pro forma adjustment or otherwise, with respect to such period and (D) the aggregate amount of any such pro forma increase added to Consolidated EBITDA pursuant to this clause (D), when combined, without duplication, with amounts added to Consolidated EBITDA pursuant to clauses (a)(xv), (a)(xvi) and (b)(1) of the definition of “Consolidated EBITDA” and amounts excluded pursuant to clause (a) of the definition of “Consolidated Net Income” shall not exceed (x) for purpose of any calculation of Consolidated EBITDA under this Agreement, an amount equal to 20.0% of Consolidated EBITDA for such Test Period (or, in the case calculated prior to giving effect to such add-backs) and (y) for purposes of any calculation of Consolidated Total AssetsCash EBITDA under this Agreement, on the last day an amount equal to 25.0% of the applicable Test Period). If since the beginning of any applicable Test Period any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Borrower or any of its Restricted Subsidiaries since the beginning of Consolidated Cash EBITDA for such Test Period shall have made any Specified Transaction that would have required adjustment pursuant (calculated prior to this Section 1.12, then giving effect to such financial ratio or test (or Consolidated Total Assets) shall be calculated to give pro forma effect thereto in accordance with this Section 1.12; provided that with respect to any pro forma calculations to be made in connection with any acquisition or investment in respect of which financial statements for the relevant target are not available for the same Test Period for which internal financial statements of the Borrower are available, the Borrower shall determine such pro forma calculations on the basis of the available financial statements (even if for differing periods) or such other basis as determined on a commercially reasonable basis by the Borrower.
(c) [Reserved].add-backs). 88 US-DOCS\115047431.4127573765.6
(d) In the event that (w) Holdings, the Borrower or any Restricted Subsidiary incurs (including by assumption or guaranteesguarantee) or repays Refinances (including by redemption, repurchase, repayment, retirement, discharge, defeasance retirement or extinguishment) any Indebtedness (other than Indebtedness incurred Indebtedness, in each case included in the calculations of any financial ratio or repaid under any revolving credit facility unless such Indebtedness has been permanently repaid and not replaced), (x) the Borrower or any Restricted Subsidiary issues, repurchases or redeems Disqualified Stock or (y) any Restricted Subsidiary issues, repurchases or redeems Preferred Stocktest, (i) during the applicable Test Period or (ii) subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then such financial ratio or test shall be calculated giving pro forma effect to such incurrence or repayment Refinancing of Indebtedness or such issuance(including pro forma effect to the application of the net proceeds therefrom), refinancing or redemption of Disqualified Stock or Preferred Stock in each case to the extent required, as if the same had occurred on the last day of the applicable Test Period; provided that, with respect to any Incurrence of Indebtedness pursuant to Section 6.01(a) in reliance on the pro forma calculation of the Total Net Cash Leverage Ratio (a “Ratio Incurrence”) such calculation shall not give pro forma effect to any Indebtedness being incurred (or expected to be incurred) substantially simultaneously or contemporaneously with such Ratio Incurrence in reliance on any “basket” set forth in Section 6.01(a) (including clause (a) of the definition of “Incremental Cap” and any “baskets” measured as a percentage of Consolidated Total Assets, Consolidated Cash EBITDA or Consolidated EBITDA and including any Borrowing of up to $15,000,000 under the Revolving Credit Facility or issuance of any Letter of Credit, except to the extent expressly required to be calculated otherwise in Section 2.20, Section 6.01(a)(xxiii) or any Replacement Revolving Facility).
(e) Notwithstanding anything to the contrary in this Section 1.12 or in any classification under GAAP of any Person, business, assets or operations in respect of which a definitive agreement for the disposition thereof has been entered into, at the election of the Borrower, no Any such pro forma effect shall be given to any discontinued operations (and include, without limitation, all adjustments calculated in accordance with Regulation S-X under the Consolidated EBITDAX or Consolidated Total Assets attributable to any such Person, business, assets or operations shall not be excluded for any purposes hereunder) until such disposition shall have been consummatedSecurities Act.
(f) Notwithstanding anything in this Agreement or any Credit Document to the contrary, in the event any Lien, Indebtedness, Disposition, Investment, Restricted Payment, transaction, action, judgment or amount under any provision in this Agreement or any other Credit Document (or any portion thereof) meets the criteria of one or more than one of the categories of permitted Baskets under this Agreement (including within any defined terms), including any Fixed Basket or Non-Fixed Basket, as applicable, the Borrower shall be permitted, in its sole discretion, at the time of incurrence to divide and classify and to later, at any time and from time to time, re-divide and re-classify (including to re-classify utilization of any Fixed Basket as being incurred under any Non-Fixed Basket or other Fixed Basket or utilization of any Non-Fixed Basket as being incurred under any Fixed Basket or other Non-Fixed Basket) on one or more occasions (based on circumstances existing on the date of any such re-division and re-classification) any such Lien, Indebtedness, Disposition, Investment, Restricted Payment, transaction, action, judgment, or amount in whole or in part, among one or more than one applicable Baskets under this Agreement (in the case of re-classification or re-division, so long as the amount so re-classified or re-divided is permitted at the time of such re-classification or re-division to be incurred pursuant to the applicable Basket into which such amount is re-classified or re-divided at such time). For the avoidance of doubt, the amount of any Lien, Indebtedness, Disposition, Investment, Restricted Payment, transaction, action, judgment, or amount that shall be allocated to each such Basket shall be determined by the Borrower at the time of such division, classification, re-division or re-classification, as applicable. For all purposes hereunder, (x) “Fixed Basket” shall mean any Basket that is subject to a fixed-Dollar limit (including Baskets based on a percentage of Consolidated EBITDAX or Consolidated Total Assets) and (y) “Non-Fixed Basket” shall mean any Basket that is subject to compliance with a financial ratio or test (including any Basket requiring compliance with the Leverage Ratio Covenant on a Pro Forma Basis) (any such ratio or test, a “Financial Incurrence Test”).
Appears in 1 contract
Sources: Credit Agreement and Incremental Facility Agreement (GoHealth, Inc.)
Pro Forma and Other Calculations. (a) Notwithstanding anything to the contrary herein, financial ratios and tests, tests (including the measurements of Consolidated Total Debt to EBITDAX Assets, Consolidated EBITDA, Consolidated Cash EBITDA, Liquidity, the Total Cash Leverage Ratio and or the Consolidated Current Ratio Contract Asset Balance Coverage Ratio), shall be calculated in the manner prescribed by this Section 1.121.11; providedprovided that, that notwithstanding anything to the contrary in clause clauses (b), (c) or (d) of this Section 1.121.11, when calculating the Consolidated Total Debt to EBITDAX Cash Leverage Ratio or the Consolidated Current Ratio, as applicable, for purposes of (i) [Reserved], (ii) Section 10.11 2.11(d) and (other than for the purpose of determining pro forma compliance with iii) Section 10.11)6.13, in each case, the events described in this Section 1.12 1.11 that occurred subsequent to the end of the applicable Test Period shall not be given pro forma effect. In addition, whenever a financial ratio or test is to be calculated on a Pro Forma Basispro forma basis or requires pro forma compliance, the reference to the “Test Period” for purposes of calculating such financial ratio or test shall be deemed to be a reference to, and shall be based on, the Test Period most recently ended Test Period for which internal financial statements of the Borrower have been (or applicable Parent Entity, as applicablewere required to have been) are available delivered pursuant to Section 5.01(a) or (as determined in good faith by the Borrowerb).
(b) For purposes of calculating any financial ratio or test or compliance with any covenant determined by reference to Consolidated EBITDAX (or including Consolidated Total Assets, Consolidated EBITDA and Consolidated Cash EBITDA), Specified Transactions (with any incurrence or repayment Refinancing of any Indebtedness in connection therewith to be subject to clause (d) of this Section 1.121.11) that have been made (i) during the applicable Test Period or (ii) if applicable as described in clause (a) above, subsequent to such Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, made shall be calculated on a Pro Forma Basis pro forma basis assuming that all such Specified Transactions (and any increase or decrease in Consolidated EBITDAX EBITDA, Consolidated Cash EBITDA and the component financial definitions used therein attributable to any Specified Transaction) had occurred on the first day of the applicable Test Period (or, in the case of Consolidated Total AssetsAssets or “unrestricted” cash and Cash Equivalents, on the last day of the applicable Test Period). If If, since the beginning of any applicable Test Period Period, any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into Holdings, the Borrower or any of its Restricted Subsidiaries Subsidiary since the beginning of such Test Period shall have made any Specified Transaction that would have required adjustment pursuant to this Section 1.121.11, then such financial ratio or test (or including Consolidated Total AssetsAssets and Consolidated EBITDA) shall be calculated to give pro forma effect thereto in accordance with this Section 1.12; provided that with respect to any pro forma calculations to be made in connection with any acquisition or investment in respect of which financial statements for the relevant target are not available for the same Test Period for which internal financial statements of the Borrower are available, the Borrower shall determine such pro forma calculations on the basis of the available financial statements (even if for differing periods) or such other basis as determined on a commercially reasonable basis by the Borrower1.11.
(c) [Reserved].Whenever pro forma effect or a determination of pro forma compliance is to be given to a Specified Transaction, the pro forma calculations shall be made in good faith by a Responsible Officer of Holdings and, to the extent provided in the definition of Consolidated EBITDA may include the amount of “run rate” cost savings, operating expense reductions and cost synergies projected by Holdings in good faith to result from or relating to any Specified Transaction (including the Transactions) that is being given pro forma effect or for which a determination of pro forma compliance is being made that have been realized or are expected to be realized and for which the actions necessary to realize such cost savings, operating expense reductions, or cost synergies have been taken or initiated, have been committed to be taken or initiated, with respect to which substantial steps have been taken or initiated or which are expected to be taken or initiated (in the good faith determination of the Borrower) (calculated on a pro forma basis as though such cost savings, operating expense reductions, and cost synergies had been realized on the first day of such period and as if such cost savings, operating expense reductions, and cost synergies were realized during the entirety of such period and “run rate” means the full recurring benefit for a period that is associated with any action taken, any action committed to be taken, any action with respect to which substantial steps have been taken or initiated or any action that is expected to be taken net of the amount of actual benefits realized during such period from such actions, and any such adjustments shall be included in the initial pro forma calculations of such financial ratios or tests and during any subsequent Test Period in which the effects thereof are expected to be realized) relating to such Specified Transaction, and any such adjustments included in the initial pro forma calculations shall continue to apply to subsequent calculations of such financial ratios or tests, including during any subsequent Test Periods in which the effects thereof are expected to be realizable; provided that (A) such amounts are reasonably identifiable and factually supportable in the good faith judgment of Holdings, (B) such actions are taken, such actions are committed to be taken, substantial steps with respect to such action have been taken or initiated or such
(d) In the event that (w) Holdings, the Borrower or any Restricted Subsidiary incurs (including by assumption or guaranteesguarantee) or repays Refinances (including by redemption, repurchase, repayment, retirement, discharge, defeasance retirement or extinguishment) any Indebtedness (other than Indebtedness incurred Indebtedness, in each case included in the calculations of any financial ratio or repaid under any revolving credit facility unless such Indebtedness has been permanently repaid and not replaced), (x) the Borrower or any Restricted Subsidiary issues, repurchases or redeems Disqualified Stock or (y) any Restricted Subsidiary issues, repurchases or redeems Preferred Stocktest, (i) during the applicable Test Period or (ii) subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then such financial ratio or test shall be calculated giving pro forma effect to such incurrence or repayment Refinancing of Indebtedness or such issuance(including pro forma effect to the application of the net proceeds therefrom), refinancing or redemption of Disqualified Stock or Preferred Stock in each case to the extent required, as if the same had occurred on the last day of the applicable Test Period.
(e; provided that, with respect to any incurrence of Indebtedness pursuant to Section 6.01(a) Notwithstanding anything to in reliance on the contrary in this Section 1.12 or in any classification under GAAP of any Person, business, assets or operations in respect of which a definitive agreement for the disposition thereof has been entered into, at the election pro forma calculation of the Borrower, no Total Cash Leverage Ratio (a “Ratio Incurrence”) such calculation shall not give pro forma effect shall be given to any discontinued operations (and the Consolidated EBITDAX or Consolidated Total Assets attributable to any such Person, business, assets or operations shall not be excluded for any purposes hereunder) until such disposition shall have been consummated.
(f) Notwithstanding anything in this Agreement or any Credit Document to the contrary, in the event any Lien, Indebtedness, Disposition, Investment, Restricted Payment, transaction, action, judgment or amount under any provision in this Agreement or any other Credit Document Indebtedness being incurred (or expected to be incurred) substantially simultaneously or contemporaneously with such Ratio Incurrence in reliance on any portion thereof“basket” set forth in Section 6.01(a) meets the criteria of one or more than one (including clause (a) of the categories definition of permitted Baskets under this Agreement (including within “Incremental Cap” and any defined terms), including any Fixed Basket or Non-Fixed Basket, “baskets” measured as applicable, the Borrower shall be permitted, in its sole discretion, at the time of incurrence to divide and classify and to later, at any time and from time to time, re-divide and re-classify (including to re-classify utilization of any Fixed Basket as being incurred under any Non-Fixed Basket or other Fixed Basket or utilization of any Non-Fixed Basket as being incurred under any Fixed Basket or other Non-Fixed Basket) on one or more occasions (based on circumstances existing on the date of any such re-division and re-classification) any such Lien, Indebtedness, Disposition, Investment, Restricted Payment, transaction, action, judgment, or amount in whole or in part, among one or more than one applicable Baskets under this Agreement (in the case of re-classification or re-division, so long as the amount so re-classified or re-divided is permitted at the time of such re-classification or re-division to be incurred pursuant to the applicable Basket into which such amount is re-classified or re-divided at such time). For the avoidance of doubt, the amount of any Lien, Indebtedness, Disposition, Investment, Restricted Payment, transaction, action, judgment, or amount that shall be allocated to each such Basket shall be determined by the Borrower at the time of such division, classification, re-division or re-classification, as applicable. For all purposes hereunder, (x) “Fixed Basket” shall mean any Basket that is subject to a fixed-Dollar limit (including Baskets based on a percentage of Consolidated EBITDAX Total Assets, Consolidated EBITDA or Consolidated Total Assets) Cash EBITDA and (y) “Non-Fixed Basket” shall mean any Basket that is subject to compliance with a financial ratio or test (including any Basket requiring compliance with issuance of any Letter of Credit, except to the Leverage Ratio Covenant on a Pro Forma Basisextent expressly required to be calculated otherwise in Section 2.20, Section 6.01(a)(xxiii) (or any such ratio or test, a “Financial Incurrence Test”Replacement Revolving Facility).
Appears in 1 contract
Sources: Credit Agreement (GoHealth, Inc.)
Pro Forma and Other Calculations. (a) Notwithstanding anything to the contrary herein, financial ratios and tests, including the Consolidated Total Debt to EBITDAX Ratio and the Consolidated Current Ratio shall be calculated in the manner prescribed by this Section 1.12; provided, that notwithstanding anything to the contrary in clause (b), (c) or (d) of this Section 1.12, when calculating the Consolidated Total Debt to EBITDAX Ratio or the Consolidated Current Ratio, as applicable, for purposes of Section 10.11 (other than for the purpose of determining pro forma compliance with Section 10.11), the events described in this Section 1.12 that occurred subsequent to the end of the applicable Test Period shall not be given pro forma effect. In addition, whenever a financial ratio or test is to be calculated on a Pro Forma Basis, the reference to the “Test Period” for purposes of calculating such financial ratio or test shall be deemed to be a reference to, and shall be based on, the most recently ended Test Period for which internal financial statements of the Borrower (or applicable Parent Entity, as applicable) are available (as determined in good faith by the Borrower).
(b) For purposes of calculating any financial ratio or test or compliance with any covenant determined by reference to Consolidated EBITDAX (or Consolidated Total Assets), Specified Transactions (with any incurrence or repayment of any Indebtedness in connection therewith to be subject to clause (d) of this Section 1.12) that have been made (i) during the applicable Test Period or (ii) if applicable as described in clause (a) above, subsequent to such Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, shall be calculated on a Pro Forma Basis assuming that all such Specified Transactions (and any increase or decrease in Consolidated EBITDAX and the component financial definitions used therein attributable to any Specified Transaction) had occurred on the first day of the applicable Test Period (or, in the case of Consolidated Total Assets, on the last day of the applicable Test Period). If since the beginning of any applicable Test Period any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Borrower or any of its Restricted Subsidiaries since the beginning of such Test Period shall have made any Specified Transaction that would have required adjustment pursuant to this Section 1.12, then such financial ratio or test (or Consolidated Total Assets) shall be calculated to give pro forma effect thereto in accordance with this Section 1.12; provided that with respect to any pro forma calculations to be made in connection with any acquisition or investment in respect of which financial statements for the relevant target are not available for the same Test Period for which internal financial statements of the Borrower are available, the Borrower shall determine such pro forma calculations on the basis of the available financial statements (even if for differing periods) or such other basis as determined on a commercially reasonable basis by the Borrower.
(c) [Reserved]Whenever pro forma effect is to be given to a Specified Transaction, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Borrower and may include, for the avoidance of doubt, the amount of “run-rate” cost savings, operating expense reductions and synergies projected by the Borrower in good faith to result from, or relating to, any Specified Transaction (including the Transactions and, for the avoidance of doubt, acquisitions and investments occurring prior to the Effective Date) which is being given pro forma effect that have been realized or are expected to be realized and for which the actions necessary to realize such cost savings, operating expense reductions and synergies are taken, committed to be taken or with respect to which substantial steps have been taken or are expected to be taken (in the good faith determination of the Borrower) (calculated on a Pro Forma Basis as though such cost savings, operating expense reductions and synergies had been realized on the first day of such period and as if such cost savings, operating expense reductions and synergies were realized during the entirety of such period) and “run-rate” means the full recurring benefit for a period that is associated with any action taken, committed to be taken or with respect to which substantial steps have been taken or are expected to be taken (including any savings expected to result from the elimination of a public target’s Public Company Costs) net of the amount of actual benefits realized during such period from such actions; provided that (A) such amounts are reasonably identifiable (in the good faith determination of the Borrower), (B) such actions are taken, committed to be taken or with respect to which substantial steps have been taken or are expected to be taken no later than eighteen (18) months after the date of such Specified Transaction (or actions undertaken or implemented prior to the consummation of the Specified Transaction), (C) no amounts shall be added pursuant to this clause (c) to the extent duplicative of any amounts that are otherwise added back in computing Consolidated EBITDAX (or any other components thereof), whether through a pro forma adjustment or otherwise, with respect to such period and (D) it is understood and agreed that subject to compliance with the other provisions of Section 1.12(c), amounts to be included in pro forma calculations pursuant to this Section 1.12 may be included in Test Periods in which the Specified Transaction to which such amounts related is no longer being given pro forma effect pursuant to Section 1.12(b).
(d) In the event that (w) the Borrower or any Restricted Subsidiary incurs (including by assumption or guarantees) or repays (including by redemption, repayment, retirement, discharge, defeasance or extinguishment) any Indebtedness (other than Indebtedness incurred or repaid under any revolving credit facility unless such Indebtedness has been permanently repaid and not replaced), (x) the Borrower or any Restricted Subsidiary issues, repurchases or redeems Disqualified Stock or (y) any Restricted Subsidiary issues, repurchases or redeems Preferred Stock, (i) during the applicable Test Period or (ii) subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then such financial ratio or test shall be calculated giving pro forma effect to such incurrence or repayment of Indebtedness or such issuance, refinancing or redemption of Disqualified Stock or Preferred Stock to the extent required, as if the same had occurred on the last day of the applicable Test Period.
(e) Notwithstanding anything to the contrary in this Section 1.12 or in any classification under GAAP of any Person, business, assets or operations in respect of which a definitive agreement for the disposition thereof has been entered into, at the election of the Borrower, no pro forma effect shall be given to any discontinued operations (and the Consolidated EBITDAX or Consolidated Total Assets attributable to any such Person, business, assets or operations shall not be excluded for any purposes hereunder) until such disposition shall have been consummated.
(f) Notwithstanding anything in this Agreement or any Credit Document to the contrary, in the event any Lien, Indebtedness, Disposition, Investment, Restricted Payment, transaction, action, judgment or amount under any provision in this Agreement or any other Credit Document (or any portion thereof) meets the criteria of one or more than one of the categories of permitted Baskets under this Agreement (including within any defined terms), including any Fixed Basket or Non-Fixed Basket, as applicable, the Borrower shall be permitted, in its sole discretion, at the time of incurrence to divide and classify and to later, at any time and from time to time, re-divide and re-classify (including to re-classify utilization of any Fixed Basket as being incurred under any Non-Fixed Basket or other Fixed Basket or utilization of any Non-Fixed Basket as being incurred under any Fixed Basket or other Non-Fixed Basket) on one or more occasions (based on circumstances existing on the date of any such re-division and re-classification) any such Lien, Indebtedness, Disposition, Investment, Restricted Payment, transaction, action, judgmentjudgment or amount, or amount in whole or in part, among one or more than one applicable Baskets under this Agreement (in the case of re-classification or re-division, so long as the amount so re-classified or re-divided is permitted at the time of such re-classification or re-division to be incurred pursuant to the applicable Basket into which such amount is re-classified or re-divided at such time). For the avoidance of doubt, the amount of any Lien, Indebtedness, Disposition, Investment, Restricted Payment, transaction, action, judgment, judgment or other amount that shall be allocated to each such Basket shall be determined by the Borrower at the time of such division, classification, re-division or re-classification, as applicable. For all purposes hereunder, (x) “Fixed Basket” shall mean any Basket that is subject to a fixed-Dollar limit (including Baskets based on a percentage of Consolidated EBITDAX or Consolidated Total Assets) and (y) “Non-Fixed Basket” shall mean any Basket that is subject to compliance with a financial ratio or test (including any Basket requiring compliance with the Leverage Ratio Covenant on a Pro Forma Basis) (any such ratio or test, a “Financial Incurrence Test”).
Appears in 1 contract
Pro Forma and Other Calculations. (a) Notwithstanding anything to the contrary herein, financial ratios ratios, calculations and teststests (including measurements of baskets and other calculations calculated on the basis of Consolidated Total Assets or Consolidated EBITDA), including the Consolidated Total Debt to EBITDAX Interest Coverage Ratio and the Consolidated Current Total Net Leverage Ratio shall be calculated in the manner prescribed by this Section 1.121.11; providedprovided that, that notwithstanding anything to the contrary in clause clauses (b), (c), (d) or (de) of this Section 1.121.11, when calculating the Consolidated Total Debt to EBITDAX Net Leverage Ratio or the Consolidated Current Ratio, as applicable, for purposes of (i) the definition of “Applicable Rate” and (ii) calculating the covenants in Section 10.11 (other than for the purpose of determining pro forma compliance with Section 10.11)10.10, the events described in this Section 1.12 1.11 that occurred subsequent to the end of the applicable Test Period shall not be given pro forma effect. In addition, whenever a financial ratio ratio, calculation or test is to be calculated on a Pro Forma Basispro forma basis or requires pro forma compliance, the reference to the “Test Period” for purposes of calculating such financial ratio or test shall be deemed to be a reference to, and shall be based on, the most recently ended Test Period for which internal financial statements of Section 9.1 Financials have been delivered to the Borrower (or applicable Parent Entity, as applicable) are available (as determined in good faith by the Borrower)Administrative Agent.
(b) For purposes of calculating any financial ratio ratio, calculation (including any minimum equity calculation) or test or compliance with any covenant determined by reference to (including measurements of baskets and other calculations on the basis of Consolidated EBITDAX (Total Assets or Consolidated Total AssetsEBITDA), Specified Transactions (with any incurrence Incurrence or repayment Refinancing of any Indebtedness in connection therewith to be subject to clause (d) of this Section 1.121.11) that have been made (i) during the applicable Test Period or (ii) if applicable as described in clause (a) above, subsequent to such Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, made shall be calculated on a Pro Forma Basis pro forma basis assuming that all such Specified Transactions (and any increase or decrease in Consolidated EBITDAX EBITDA and the component financial definitions used therein attributable to any Specified Transaction) had occurred on the first day of the applicable Test Period (or, in the case of Consolidated Total AssetsAssets or “unrestricted” cash and cash equivalents, or any new cash equity contribution and/or rollover and/or valuation of existing equity in connection with such Specified Transaction, on the last day of the applicable Test Period). If If, since the beginning of any applicable Test Period Period, any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Borrower or any of its Restricted Subsidiaries Subsidiary since the beginning of such Test Period shall have made any Specified Transaction that would have required adjustment pursuant to this Section 1.121.11, then such financial ratio ratio, calculation or test (or including measurements of baskets and other calculations on the basis of Consolidated Total AssetsAssets and Consolidated EBITDA) shall be calculated to give pro forma effect thereto in accordance with this Section 1.12; provided that with respect to any pro forma calculations to be made in connection with any acquisition or investment in respect of which financial statements for the relevant target are not available for the same Test Period for which internal financial statements of the Borrower are available, the Borrower shall determine such pro forma calculations on the basis of the available financial statements (even if for differing periods) or such other basis as determined on a commercially reasonable basis by the Borrower1.11.
(c) [Reserved]Whenever pro forma effect or a determination of pro forma compliance is to be given to a Specified Transaction or a Specified Restructuring, the pro forma calculations shall be made in good faith by an Authorized Officer of the Borrower and may include, for the avoidance of doubt, the amount of “run rate” cost savings, operating expense reductions and cost synergies projected by the Borrower in good faith to result from or relating to any Specified Transaction (including the Transactions) or Specified Restructuring that is being given pro forma effect or for which a determination of pro forma compliance is being made that have been realized or are expected to be realized and for which the actions necessary to realize such cost savings, operating expense reductions and cost synergies have been taken, have been committed to be taken, with respect to which substantial steps have been taken or which are expected to be taken (in the good faith determination of the Borrower) (calculated on a pro forma basis as though such cost savings, operating expense reductions and cost synergies had been realized on the first day of such period and as if such cost savings, operating expense reductions and cost synergies were realized during the entirety of such period and “run rate” means the full recurring benefit for a period that is associated with any action taken, any action committed to be taken, any action with respect to which substantial steps have been taken or any action that is expected to be taken (including any savings expected to result from the elimination of Public Company Costs, if any) net of the amount of actual benefits realized during such period from such actions, and any such adjustments shall be included in the initial pro forma calculations of such financial ratios or tests and during any subsequent Test Period in which the effects thereof are expected to be realized) relating to such Specified Transaction or Specified Transaction, and any such adjustments included in the initial pro forma calculations shall continue to apply to subsequent calculations of such financial ratios or tests, including during any subsequent Test Periods in which the effects thereof are expected to be realizable; provided that (A) such amounts are reasonably identifiable in the good faith judgment of the Borrower, (B) such actions are taken, such actions are committed to be taken, substantial steps with respect to such action have been taken or such actions are expected to be taken no later than eight fiscal quarters after the date of consummation of such Specified Transaction or the date of initiation of such Specified Restructuring (or, with respect to the Transactions, twelve fiscal quarters), (C) no amounts shall be added to the extent duplicative of any amounts that are otherwise added back in computing Consolidated EBITDA (or any other components thereof), whether through a pro forma adjustment or otherwise, with respect to such period and (D) the aggregate amount of adjustments to Consolidated Net Income or Consolidated EBITDA pursuant to this Section 1.11(c), when combined with the aggregate amount of adjustments and/or add-backs taken with respect to (1) clause (a) of the definition of Consolidated Net Income, (2) clause (a)(xvi) of the definition of Consolidated EBITDA (except, in the case of the foregoing clauses (1) and (2), to the extent such adjustments and addbacks are extraordinary, exceptional, unusual or nonrecurring), (3) clause (a)(xxvi) of the definition of Consolidated EBITDA and (4) clause (III) of the proviso to the definition of Consolidated EBITDA in such Test Period, shall not exceed 15.00% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for such Test Period (calculated prior to giving effect to the adjustments and addbacks pursuant to such clauses).
(d) In the event that (w) the Borrower or any Restricted Subsidiary incurs Incurs (including by assumption or guaranteesguarantee) or repays Refinances (including by redemption, repurchase, repayment, retirement, discharge, defeasance retirement or extinguishment) any Indebtedness (other than Indebtedness incurred Indebtedness, in each case included in the calculations of any financial ratio or repaid under any revolving credit facility unless such Indebtedness has been permanently repaid and not replaced), (x) the Borrower or any Restricted Subsidiary issues, repurchases or redeems Disqualified Stock or (y) any Restricted Subsidiary issues, repurchases or redeems Preferred Stocktest, (i) during the applicable Test Period or (ii) subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then such financial ratio or test shall be calculated giving pro forma effect to such incurrence Incurrence or repayment Refinancing of Indebtedness or such issuance(including pro forma effect to the application of the net proceeds therefrom), refinancing or redemption of Disqualified Stock or Preferred Stock in each case to the extent required, as if the same had occurred on the last day of the applicable Test Period (except in the case of the Consolidated Interest Coverage Ratio (or similar ratio), in which case such Incurrence or Refinancing of Indebtedness will be given effect, as if the same had occurred on the first day of the applicable Test Period); provided that, with respect to any Incurrence of Indebtedness permitted by the provisions of this Agreement in reliance on the pro forma calculation of the Consolidated Interest Coverage Ratio and/or the Consolidated Total Net Leverage Ratio, as applicable, pro forma effect shall not be given to any Indebtedness being Incurred (or expected to be Incurred) substantially simultaneously or contemporaneously with the Incurrence of any such Indebtedness in reliance on any “basket” set forth in this Agreement, including the Incremental Base Amount, any “baskets” measured as a percentage of Consolidated Total Assets or Consolidated EBITDA or any Credit Event under the Revolving Credit Facility or, except to the extent expressly required to be calculated otherwise in Section 2.14 or Section 10.1(u), any Replacement Revolving Credit Facility.
(e) Whenever pro forma effect is to be given to a pro forma event, the pro forma calculations shall be made in good faith by an Authorized Officer of the Borrower. If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date of the event for which the calculation of the Consolidated Interest Coverage Ratio is made had been the applicable rate for the entire period (taking into account any interest Hedging Agreements applicable to such Indebtedness). To the extent interest expense generated by Hedging Obligations that have been terminated is included in Consolidated Interest Expense prior to the date of the event for which the calculation of the Consolidated Interest Coverage Ratio is being made, Consolidated Interest Expense shall be adjusted to exclude such expense. Interest on a Financing Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by an Authorized Officer of the Borrower to be the rate of interest implicit in such Financing Lease Obligation in accordance with GAAP. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, SOFR, or other rate, shall be determined to have been based upon the rate actually chosen, or if none, then based upon such optional rate chosen as the Borrower or applicable Restricted Subsidiary may designate. For purposes of making the computations referred to above, interest on any Indebtedness under a revolving credit facility computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period or, if lower, the maximum commitments under such revolving credit facility as of the date of the event for which the calculation of the Consolidated Interest Coverage Ratio is being made, except as set forth in Section 1.11(d).
(f) Any such pro forma calculation may include, without limitation, (1) all adjustments of the type described in clause (a)(viii) of the definition of “Consolidated EBITDA” to the extent such adjustments, without duplication, continue to be applicable to such Test Period, and (2) adjustments calculated in accordance with Regulation S-X under the Securities Act.
(g) For purposes of determining the permissibility of any action, change, transaction or event that requires a calculation of any Fixed Amount, Incurrence-Based Amount or, except as described in Section 1.11(a), any other financial ratio, test, covenant, calculation or measurement, such Fixed Amount, Incurrence-Based Amount or other financial ratio, test, covenant, calculation or measurement shall be calculated at the time such action is taken (subject to Section 1.10), such change is made, such transaction is consummated or such event occurs, as the case may be, and no Default or Event of Default shall be deemed to have occurred solely as a result of a change in such Fixed Amount, Incurrence-Based Amount or other financial ratio, test, covenant, calculation or measurement occurring after the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be.
(h) Notwithstanding anything to the contrary in this Section 1.12 or in any classification under GAAP of any Personherein, businessunless the Borrower otherwise notifies the Administrative Agent, assets or operations in (i) with respect of which a definitive agreement for the disposition thereof has been entered into, at the election of the Borrower, no pro forma effect shall be given to any discontinued operations amounts Incurred or transactions entered into (and the Consolidated EBITDAX or Consolidated Total Assets attributable to any such Person, business, assets or operations shall not be excluded for any purposes hereunderconsummated) until such disposition shall have been consummated.
(f) Notwithstanding anything in reliance on a provision of this Agreement or any Credit Document to the contrary, in the event any Lien, Indebtedness, Disposition, Investment, Restricted Payment, transaction, action, judgment or amount under any provision in this Agreement or any other Credit Document (or any portion thereof) meets the criteria of one or more than one of the categories of permitted Baskets under this Agreement (including within any defined terms), including any Fixed Basket or Non-Fixed Basket, as applicable, the Borrower shall be permitted, in its sole discretion, at the time of incurrence to divide and classify and to later, at any time and from time to time, re-divide and re-classify (including to re-classify utilization of any Fixed Basket as being incurred under any Non-Fixed Basket or other Fixed Basket or utilization of any Non-Fixed Basket as being incurred under any Fixed Basket or other Non-Fixed Basket) on one or more occasions (based on circumstances existing on the date of any such re-division and re-classification) any such Lien, Indebtedness, Disposition, Investment, Restricted Payment, transaction, action, judgment, or amount in whole or in part, among one or more than one applicable Baskets under this Agreement (in the case of re-classification or re-division, so long as the amount so re-classified or re-divided is permitted at the time of such re-classification or re-division to be incurred pursuant to the applicable Basket into which such amount is re-classified or re-divided at such time). For the avoidance of doubt, the amount of any Lien, Indebtedness, Disposition, Investment, Restricted Payment, transaction, action, judgment, or amount that shall be allocated to each such Basket shall be determined by the Borrower at the time of such division, classification, re-division or re-classification, as applicable. For all purposes hereunder, (x) “Fixed Basket” shall mean any Basket that is subject to a fixed-Dollar limit (including Baskets based on a percentage of Consolidated EBITDAX or Consolidated Total Assets) and (y) “Non-Fixed Basket” shall mean any Basket that is subject to does not require compliance with a financial ratio or test (including any Basket requiring compliance with the Consolidated Interest Coverage Ratio and Consolidated Total Net Leverage Ratio Covenant on a Pro Forma BasisRatio) (any such amounts, the “Fixed Amounts”) substantially concurrently, simultaneously or contemporaneously with any amounts Incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that requires compliance with a financial ratio or test any Consolidated Interest Coverage Ratio test and/or any Consolidated Total Net Leverage Ratio test) (any such amounts, a the “Financial Incurrence TestIncurrence-Based Amounts”), it is understood and agreed that the Fixed Amounts shall be disregarded in the calculation of the financial ratio or test applicable to the Incurrence-Based Amounts, (ii) the Incurrence of the Incurrence-Based Amount shall be calculated first without giving effect to any Fixed Amount but giving full pro forma effect to the use of proceeds of such Fixed Amount and the related transactions and (iii) the Incurrence of the Fixed Amount shall be calculated thereafter. Unless the Borrower elects otherwise, the Borrower shall be deemed to have used amounts under an Incurrence-Based Amount then available to the Borrower prior to utilization of any amount under a Fixed Amount then available to the Borrower.
Appears in 1 contract
Pro Forma and Other Calculations. (a) Notwithstanding anything to the contrary herein, financial ratios and teststests (including measurements of Consolidated Total Assets or Consolidated EBITDA), including the Consolidated Total Debt to EBITDAX Leverage Ratio and or the Consolidated Current Ratio Interest Coverage Ratio, shall be calculated in the manner prescribed by this Section 1.121.09; providedprovided that, that notwithstanding anything to the contrary in clause clauses (b), (c) or (d) of this Section 1.121.09, when calculating the Consolidated Total Debt to EBITDAX Leverage Ratio or the Consolidated Current Ratio, as applicable, for purposes of the definition of “Applicable Rate” and Section 10.11 (other than for the purpose of determining pro forma compliance with Section 10.11)7.11, the events described in this Section 1.12 1.09 that occurred subsequent to the end of the applicable Test Measurement Period shall not be given pro forma effect. In addition, subject to Section 1.08, whenever a financial ratio or test is to be calculated on a Pro Forma Basispro forma basis or requires pro forma compliance, the reference to the “Test Measurement Period” for purposes of calculating such financial ratio or test shall be deemed to be a reference to, and shall be based on, the most recently ended Test Measurement Period for which internal financial statements of the Borrower (have been delivered pursuant to Section 4.01 or applicable Parent Entity, as applicableSection 6.01(a) are available (as determined in good faith by the Borroweror 6.01(b).
(b) For purposes of calculating any financial ratio or test or compliance with any covenant determined by reference to (including Consolidated EBITDAX (Total Assets or Consolidated Total AssetsEBITDA), Specified Transactions (with any incurrence or repayment Refinancing of any Indebtedness in connection therewith to be subject to clause (d) of this Section 1.121.09) that have been made (i) during the applicable Test Measurement Period or (ii) if applicable as described in clause (a) above, subsequent to such Test Measurement Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, made shall be calculated on a Pro Forma Basis pro forma basis assuming that all such Specified Transactions (and any increase or decrease in Consolidated EBITDAX EBITDA and the component financial definitions used therein attributable to any Specified Transaction) had occurred on the first day of the applicable Test Measurement Period (or, in the case of Consolidated Total AssetsAssets or “unrestricted” cash and Cash Equivalents, on the last day of the applicable Test Measurement Period). If If, since the beginning of any applicable Test Period Measurement Period, any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Borrower or any of its Restricted Subsidiaries Subsidiary since the beginning of such Test Measurement Period shall have made any Specified Transaction that would have required adjustment pursuant to this Section 1.121.09, then such financial ratio or test (or including Consolidated Total AssetsAssets and Consolidated EBITDA) shall be calculated to give pro forma effect thereto in accordance with this Section 1.12; provided that with respect to any pro forma calculations to be made in connection with any acquisition or investment in respect of which financial statements for the relevant target are not available for the same Test Period for which internal financial statements of the Borrower are available, the Borrower shall determine such pro forma calculations on the basis of the available financial statements (even if for differing periods) or such other basis as determined on a commercially reasonable basis by the Borrower1.09.
(c) [Reserved].
(d) In the event that (w) the Borrower or any Restricted Subsidiary incurs (including by assumption or guaranteesguarantee) or repays Refinances (including by redemption, repurchase, repayment, retirement, discharge, defeasance retirement or extinguishment) any Indebtedness (other than Indebtedness incurred Indebtedness, in each case included in the calculations of any financial ratio or repaid under any revolving credit facility unless such Indebtedness has been permanently repaid and not replaced), (x) the Borrower or any Restricted Subsidiary issues, repurchases or redeems Disqualified Stock or (y) any Restricted Subsidiary issues, repurchases or redeems Preferred Stocktest, (i) during the applicable Test Measurement Period or (ii) subsequent to the end of the applicable Test Measurement Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then such financial ratio or test shall be calculated giving pro forma effect to such incurrence or repayment Refinancing of Indebtedness or such issuance(including pro forma effect to the application of the net proceeds therefrom), refinancing or redemption of Disqualified Stock or Preferred Stock in each case to the extent required, as if the same had occurred on the last day of the applicable Test Measurement Period (except in the case of the Consolidated Interest Coverage Ratio (or similar ratio), in which case such incurrence or Refinancing of Indebtedness will be given effect, as if the same had occurred on the first day of the applicable Measurement Period); provided that, with respect to any incurrence of Indebtedness, creation of Lien, Investment or Restricted Payment permitted by the provisions of this Agreement in reliance on the pro forma calculation of the Consolidated Leverage Ratio and/or the Consolidated Interest Coverage Ratio, as applicable, pro forma effect shall not be given to any Indebtedness being incurred, Lien created or Investment or Restricted Payment made (or expected to be incurred, created or made) substantially simultaneously or contemporaneously with the incurrence of any such Indebtedness, creation of such Lien or making of such Investment or Restricted Payment, as applicable, in reliance on any “basket” set forth in this Agreement (including any “baskets” measured as a percentage of Consolidated Total Assets or Consolidated EBITDA) including any Credit Extension under the Revolving Credit Facility or, except to the extent expressly required to be calculated otherwise in Section 2.14, in respect of any Incremental Commitment.
(d) Whenever pro forma effect is to be given to a pro forma event, the pro forma calculations shall be made in good faith by a Responsible Officer of the Borrower. If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date of the event for which the calculation of the Consolidated Interest Coverage Ratio is made had been the applicable rate for the entire period (taking into account any interest Swap Contracts applicable to such Indebtedness). To the extent interest expense generated by Swap Obligations that have been terminated is included in Consolidated Interest Charges prior to the date of the event for which the calculation of the Consolidated Interest Coverage Ratio is being made, Consolidated Interest Charges shall be adjusted to exclude such expense. Interest on a Capitalized Lease shall be deemed to accrue at an interest rate reasonably determined by a Responsible Officer of the Borrower to be the rate of interest implicit in such Capitalized Lease in accordance with GAAP. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be determined to have been based upon the rate actually chosen, or if none, then based upon such optional rate chosen as the Borrower or applicable Subsidiary may designate. For purposes of making the computations referred to above, interest on any Indebtedness under a revolving credit facility computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period or, if lower, the maximum commitments under such revolving credit facility as of the date of the event for which the calculation of the Consolidated Interest Coverage Ratio is being made, except as set forth in Section 1.09(c).
(e) Notwithstanding anything to the contrary in this Section 1.12 or in any classification under GAAP of any Person, business, assets or operations in respect of which a definitive agreement for the disposition thereof has been entered into, at the election of the Borrower, no Any such pro forma effect shall be given to any discontinued operations (and calculation may include, without limitation, adjustments calculated in accordance with Regulation S-X under the Consolidated EBITDAX or Consolidated Total Assets attributable to any such PersonSecurities Act of 1933, business, assets or operations shall not be excluded for any purposes hereunder) until such disposition shall have been consummatedas amended.
(f) Notwithstanding anything in this Agreement or For purposes of determining compliance at any Credit Document to the contrarytime with Sections 2.14(a), 7.01, 7.02, 7.03, 7.05 and 7.06, in the event that any Indebtedness, Lien, Indebtedness, Disposition, Investment, Restricted Payment, transactionprepayment, actionredemption, judgment purchase, defeasance or amount under any provision in this Agreement or any other Credit Document (or any portion thereof) satisfaction of Junior Financings and/or Investment, as applicable, meets the criteria of one or more than one of the categories of transactions or items permitted Baskets under this Agreement (including within pursuant to any defined termsclause of such Sections 2.14(a), including any Fixed Basket or Non-Fixed Basket7.01 (other than Section 7.01(a)), as applicable7.02 (other than Section 7.02(c)), 7.03, 7.05 and 7.06, the Borrower shall be permittedBorrower, in its sole discretion, at the time of incurrence to divide and classify and to latermay, at any time and from time to time, re-divide and re-divide, classify and/or reclassify such transaction or item (including to re-classify utilization or portion thereof) among any combination of any Fixed Basket as being incurred under any Non-Fixed Basket or other Fixed Basket or utilization of any Non-Fixed Basket as being incurred under any Fixed Basket or other Non-Fixed Basket) on one or more occasions (based on circumstances existing on the date of any such re-division categories and re-classification) any such Lien, Indebtedness, Disposition, Investment, Restricted Payment, transaction, action, judgment, or amount in whole or in part, among one or more than one applicable Baskets under this Agreement (in the case of re-classification or re-division, so long as will be required to include the amount so re-classified or re-divided is permitted at the time and type of such re-classification transaction (or re-division to be incurred pursuant to the applicable Basket into which such amount is re-classified or re-divided portion thereof) only in any one category at such any time). For the avoidance of doubt, the amount of it is understood and agreed that any Indebtedness, Lien, Indebtedness, Disposition, Investment, Restricted Payment, transactionprepayment, actionredemption, judgmentpurchase, defeasance or other satisfaction of Junior Financings and/or Investment need not be permitted solely by reference to one category of permitted Indebtedness, Lien, Disposition, Restricted Payment, prepayment, redemption, purchase, defeasance or other satisfaction of Junior Financings and/or Investment under Sections 2.14(a), 7.01, 7.02, 7.03, 7.05 and 7.06, respectively, but may instead be permitted in part under any combination thereof. In addition, with respect to any amount that shall be allocated to each such Basket shall be determined by the Borrower at the time of such division, classification, re-division incurred or re-classification, as applicable. For all purposes hereunder, transaction entered into (xor consummated) “Fixed Basket” shall mean any Basket that is subject to a fixed-Dollar limit (including Baskets based in reliance on a percentage provision of Consolidated EBITDAX or Consolidated Total Assets) and (y) “Non-Fixed Basket” shall mean any Basket this Agreement that is subject to does not require compliance with a financial ratio or test (including any Basket requiring compliance with the Leverage Ratio Covenant on a Pro Forma Basisincluding, without limitation, Section 2.14(a)(A)) (any such ratio or testamount, a “Financial Incurrence TestFixed Amount”) substantially concurrently with, or prior to, any amount incurred or transaction entered into (or consummated) in reliance on a provision of this Agreement that requires compliance with a financial ratio or test (including, without limitation, Section 2.14(a)(B), any Interest Coverage Ratio test and/or any Consolidated Leverage Ratio test) (any such amount, an “Incurrence-Based Amount”), it is understood and agreed that the Borrower may select that amounts incurred or transactions entered into (or consummated) be incurred or entered into (or consummated) in reliance on one or more of any Incurrence-Based Amount and/or Fixed Amount in its sole discretion; provided that, unless the Borrower elects otherwise, each such amount or transaction will be deemed incurred, entered into or consummated first under any Incurrence-Based Amount to the maximum extent permitted thereunder. In addition, any Indebtedness, Lien, Restricted Payment, prepayment, redemption, purchase, defeasance or other satisfaction of Junior Financings and/or Investment incurred or made in reliance on any Fixed Amount (including Section 2.14(a)(A)) will automatically be reclassified as having been incurred in reliance on any applicable Incurrence-Based Amount of the same negative covenant (including Section 2.14(a)(B)) if the Borrower satisfies the relevant ratio or test applicable to such Incurrence-Based Amount at any time on a pro forma basis for the most recently completed Measurement Period after the incurrence in reliance on the relevant Fixed Amount.
Appears in 1 contract
Pro Forma and Other Calculations. 86 US-DOCS\115047431.4
(a) Notwithstanding anything to the contrary herein, financial ratios and tests, tests (including the measurements of Consolidated Total Debt to EBITDAX Ratio Assets, Consolidated Cash EBITDA, Liquidity or Consolidated EBITDA and the Consolidated Current Total Net Leverage Ratio, the Total Net Cash Leverage Ratio, the Contract Asset Balance Coverage Ratio or the LTV Ratio), shall be calculated in the manner prescribed by this Section 1.121.11; providedprovided that, that notwithstanding anything to the contrary in clause clauses (b), (c) or (d) of this Section 1.121.11, (I) when calculating the Consolidated Total Debt to EBITDAX Net Leverage Ratio or the Consolidated Current Ratiofor purposes of, as applicable, (i) [reserved], (ii) [reserved] and (iii) Section 6.13 and (II) when calculating the Total Net Cash Leverage Ratio for purposes of Section 10.11 (other than for the purpose of determining pro forma compliance with Section 10.112.11(d), in each case, the events described in this Section 1.12 1.11 that occurred subsequent to the end of the applicable Test Period shall not be given pro forma effect; provided, however, that for purposes of calculating the ECF Percentage, Consolidated Total Net Debt shall be determined after giving pro forma effect to the Permitted ECF Recalculation Considerations assuming such prepayments had been made on the last day of such fiscal year. In addition, whenever a financial ratio or test is to be calculated on a Pro Forma Basispro forma basis or requires pro forma compliance, the reference to the “Test Period” for purposes of calculating such financial ratio or test shall be deemed to be a reference to, and shall be based on, the Test Period most recently ended Test Period for which internal financial statements of the Borrower have been (or applicable Parent Entity, as applicablewere required to have been) are available delivered pursuant to Section 5.01(a) or (as determined in good faith by the Borrowerb).
(b) For purposes of calculating any financial ratio or test or compliance with any covenant determined by reference to Consolidated EBITDAX (or including Consolidated Total Assets, Consolidated Cash EBITDA or Consolidated EBITDA), Specified Transactions (with any incurrence or repayment Refinancing of any Indebtedness in connection therewith to be subject to clause (d) of this Section 1.121.11) that have been made (i) during the applicable Test Period or (ii) if applicable as described in clause (a) above, subsequent to such Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, made shall be calculated on a Pro Forma Basis pro forma basis assuming that all such Specified Transactions (and any increase or decrease in Consolidated EBITDAX EBITDA, Consolidated Cash EBITDA and the component financial definitions used therein attributable to any Specified Transaction) had occurred on the first day of the applicable Test Period (or, in the case of Consolidated Total AssetsAssets or “unrestricted” cash and Cash Equivalents, on the last day of the applicable Test Period). If If, since the beginning of any applicable Test Period Period, any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into Holdings, the Borrower or any of its Restricted Subsidiaries Subsidiary since the beginning of such Test Period shall have made any Specified Transaction that would have required adjustment pursuant to this Section 1.121.11, then such financial ratio or test (or including Consolidated Total AssetsAssets and Consolidated EBITDA) shall be calculated to give pro forma effect thereto in accordance with this Section 1.12; provided that with respect to any pro forma calculations to be made in connection with any acquisition or investment in respect of which financial statements for the relevant target are not available for the same Test Period for which internal financial statements of the Borrower are available, the Borrower shall determine such pro forma calculations on the basis of the available financial statements (even if for differing periods) or such other basis as determined on a commercially reasonable basis by the Borrower1.11.
(c) [Reserved].Whenever pro forma effect or a determination of pro forma compliance is to be given to a Specified Transaction or a Specified Restructuring, the pro forma calculations shall be made in good faith by a Responsible Officer of Holdings and may include, for the avoidance of doubt, the amount of “run rate” cost savings, operating expense reductions and cost synergies and other synergies projected by Holdings in good faith to result from or relating to any Specified Transaction (including the Transactions) or Specified Restructuring that is being given pro forma effect or for which a determination of pro forma compliance is being made that have been realized or are expected to be realized and for which the actions necessary to realize such cost savings, operating expense reductions, cost synergies or other synergies have been taken or initiated, have been committed to be taken or initiated, with respect to which substantial steps have been taken or initiated or which are expected to be taken or initiated (in the good faith determination of the Borrower) (calculated on a pro forma basis as though such cost savings, operating expense reductions, cost synergies and other synergies had been realized on the first day of such period and as if such cost savings, operating expense reductions, cost synergies and other synergies were realized during the entirety of such period and “run rate” means the full recurring benefit for a period that is associated with any action taken, any action committed to be taken, any action with respect to which substantial steps have been taken or initiated or any action that is expected to be taken (including any savings expected to result from the elimination of Public Company Costs) net of the amount of actual 87 US-DOCS\115047431.4
(d) In the event that (w) Holdings, the Borrower or any Restricted Subsidiary incurs (including by assumption or guaranteesguarantee) or repays Refinances (including by redemption, repurchase, repayment, retirement, discharge, defeasance retirement or extinguishment) any Indebtedness (other than Indebtedness incurred Indebtedness, in each case included in the calculations of any financial ratio or repaid under any revolving credit facility unless such Indebtedness has been permanently repaid and not replaced), (x) the Borrower or any Restricted Subsidiary issues, repurchases or redeems Disqualified Stock or (y) any Restricted Subsidiary issues, repurchases or redeems Preferred Stocktest, (i) during the applicable Test Period or (ii) subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then such financial ratio or test shall be calculated giving pro forma effect to such incurrence or repayment Refinancing of Indebtedness or such issuance(including pro forma effect to the application of the net proceeds therefrom), refinancing or redemption of Disqualified Stock or Preferred Stock in each case to the extent required, as if the same had occurred on the last day of the applicable Test Period; provided that, with respect to any Incurrence of Indebtedness pursuant to Section 6.01(a) in reliance on the pro forma calculation of the Total Net Cash Leverage Ratio (a “Ratio Incurrence”) such calculation shall not give pro forma effect to any Indebtedness being incurred (or expected to be incurred) substantially simultaneously or contemporaneously with such Ratio Incurrence in reliance on any “basket” set forth in Section 6.01(a) (including clause (a) of the definition of “Incremental Cap” and any “baskets” measured as a percentage of Consolidated Total Assets, Consolidated Cash EBITDA or Consolidated EBITDA and including any Borrowing of up to $15,000,000 under the Revolving Credit Facility or issuance of any Letter of Credit, except to the extent expressly required to be calculated otherwise in Section 2.20, Section 6.01(a)(xxiii) or any Replacement Revolving Facility).
(e) Notwithstanding anything Any such pro forma shall include, without limitation, all adjustments calculated in accordance with Regulation S-X under the Securities Act. ARTICLE II THE CREDITS SECTION 2.01 Commitments. 88 US-DOCS\115047431.4
(i) Subject to the contrary terms and conditions set forth herein, (i) each Term Lender (other than the 2020 Incremental Term Lenders and 2021 Incremental Term Lenders) severally agrees to make an Initial Term Loan to the Borrower denominated in this Section 1.12 Dollars on the Effective Date in an aggregate principal amount equal to its Initial Term Loan Commitment, (ii) each 2020 Incremental Term Lender severally agrees to make a 2020 Incremental Term Loan to the Borrower denominated in Dollars on the 2020 Incremental Closing Date (as defined in Amendment No. 1) in an aggregate principal amount equal to its 2020 Incremental Term Loan Commitment and, (iii) each 2021 Incremental Term Lender severally agrees to make a 2021 Incremental Term Loan to the Borrower denominated in Dollars on the Amendment No. 5 Effective Date in an aggregate principal amount equal to its 2021 Incremental Term Loan Commitment and (iv) each Revolving Lender agrees to make Revolving Loans to the Borrower denominated in Dollars during the Revolving Availability Period in an aggregate principal amount which will not result in such Lender’s Revolving Exposure exceeding such Lender’s Revolving Commitment; provided that any borrowing of Revolving Loans on the Effective Date shall not exceed the Initial Revolving Borrowing Amount. The Borrower may borrow, prepay and reborrow Revolving Loans. Amounts repaid or in any classification under GAAP of any Person, business, assets or operations prepaid in respect of which a definitive agreement for the disposition thereof has been entered intoInitial Term Loans and, at the election of the Borrower, no pro forma effect shall be given to any discontinued operations (2020 Incremental Term Loans and the Consolidated EBITDAX or Consolidated Total Assets attributable to any such Person, business, assets or operations shall 2021 Incremental Term Loans may not be excluded for any purposes hereunder) until such disposition shall have been consummatedreborrowed.
(fb) Notwithstanding anything in this Agreement or any Credit Document Subject to the contrary, terms and conditions set forth in the event any Lien, Indebtedness, Disposition, Investment, Restricted Payment, transaction, action, judgment or amount under any provision in this Agreement or any other Credit Document (or any portion thereof) meets the criteria of one or more than one of the categories of permitted Baskets under this Agreement (including within any defined terms), including any Fixed Basket or Non-Fixed BasketIncremental Facility Amendment providing for, as applicable, the Borrower shall be permittedmaking or Refinancing of Term Loans or Revolving Loans, in its sole discretioneach Term Lender or Revolving Lender party thereto severally agrees to, at the time of incurrence to divide and classify and to lateras applicable, at any time and from time to timemake or Refinance Term Loans or Revolving Loans, re-divide and re-classify (including to re-classify utilization of any Fixed Basket as being incurred under any Non-Fixed Basket or other Fixed Basket or utilization of any Non-Fixed Basket as being incurred under any Fixed Basket or other Non-Fixed Basket) on one or more occasions (based on circumstances existing applicable, on the date of any such re-division and re-classification) any such Lien, Indebtedness, Disposition, Investment, Restricted Payment, transaction, action, judgment, or specified therein in an aggregate amount in whole or in part, among one or more than one applicable Baskets under this Agreement (in the case of re-classification or re-division, so long as not to exceed the amount so re-classified or re-divided is permitted at the time of such reTerm Lender’s or Revolving Lender’s Commitment as set forth therein.
(c) As of the Amendment No. 5 Effective Date, in accordance with, and upon the terms and conditions set forth in, the Amendment No. 5, (A) the Original Revolving Commitment of each Class B Revolving Lender outstanding on such date shall become Class B Revolving Commitments on such date in an amount as set forth on Schedule I-classification or re-division B to be incurred the Amendment No. 5 and (B) the Original Revolving Commitment of each Class A Revolving Lender described in clause (b) of the definition of “Class A Revolving Lender” that do not become Class B Revolving Commitments pursuant to the applicable Basket into which such amount is re-classified or re-divided at such time). For the avoidance of doubt, the amount of any Lien, Indebtedness, Disposition, Investment, Restricted Payment, transaction, action, judgment, or amount that foregoing clause (A) shall be allocated continued hereunder on such date as Revolving Commitments and reclassified as Class A Revolving Commitments in an amount as set forth on Schedule I-B to each such Basket the Amendment No. 5. On and after the Amendment No. 5 Effective Date, all Borrowings of Revolving Loans under Section 2.1(a)(iv) shall be determined by made pro rata between the Borrower at Class A Revolving Facility and the time of such division, classification, re-division or re-classification, Class B Revolving Facility in proportion to the Total Class A Revolving Commitments and Total Class B Revolving Commitments. Any Original Revolving Loans outstanding immediately prior to giving effect to the Amendment No. 5 Effective Date shall be continued as applicableRevolving Loans hereunder on the Amendment No. For all purposes hereunder, 5 Effective Date; provided that (x) the Original Revolving Loans of each Class A Revolving Lender will be continued as “Fixed BasketClass A Revolving Loans” shall mean any Basket that is subject to a fixed-Dollar limit (including Baskets based on a percentage of Consolidated EBITDAX or Consolidated Total Assets) hereunder and (y) the Original Revolving Loans of each Class B Revolving Lender will become “Non-Fixed BasketClass B Revolving Loans” shall mean any Basket that is subject to compliance with a financial ratio or test (including any Basket requiring compliance with hereunder, in each case, on the Leverage Ratio Covenant on a Pro Forma Basis) (any terms set forth herein for such ratio or test, a “Financial Incurrence Test”)Class of Revolving Commitments.
Appears in 1 contract
Sources: Credit Agreement and Incremental Facility Agreement (GoHealth, Inc.)
Pro Forma and Other Calculations. (a) Notwithstanding anything to the contrary herein, financial ratios and tests, tests (including the measurements of Consolidated Total Debt to EBITDAX Ratio Assets, Consolidated Cash EBITDA, Liquidity or Consolidated EBITDA and the Consolidated Current Total Net Leverage Ratio, the Total Net Cash Leverage Ratio, the Contract Asset Balance Coverage Ratio or the LTV Ratio), shall be calculated in the manner prescribed by this Section 1.121.11; providedprovided that, that notwithstanding anything to the contrary in clause clauses (b), (c) or (d) of this Section 1.121.11, (I) when calculating the Consolidated Total Debt to EBITDAX Net Leverage Ratio or the Consolidated Current Ratiofor purposes of, as applicable, (i) [reserved], (ii) [reserved] and (iii) Section 6.13 and (II) when calculating the Total Net Cash Leverage Ratio for purposes of Section 10.11 (other than for the purpose of determining pro forma compliance with Section 10.112.11(d), in each case, the events described in this Section 1.12 1.11 that occurred subsequent to the end of the applicable Test Period shall not be given pro forma effect; provided, however, that for purposes of calculating the ECF Percentage, Consolidated Total Net Debt shall be determined after giving pro forma effect to the Permitted ECF Recalculation Considerations assuming such prepayments had been made on the last day of such fiscal year. In addition, whenever a financial ratio or test is to be calculated on a Pro Forma Basispro forma basis or requires pro forma compliance, the reference to the “Test Period” for purposes of calculating such financial ratio or test shall be deemed to be a reference to, and shall be based on, the Test Period most recently ended Test Period for which internal financial statements of the Borrower have been (or applicable Parent Entity, as applicablewere required to have been) are available delivered pursuant to Section 5.01(a) or (as determined in good faith by the Borrowerb).
(b) For purposes of calculating any financial ratio or test or compliance with any covenant determined by reference to Consolidated EBITDAX (or including Consolidated Total Assets, Consolidated Cash EBITDA or Consolidated EBITDA), Specified Transactions (with any incurrence or repayment Refinancing of any Indebtedness in connection therewith to be subject to clause (d) of this Section 1.121.11) that have been made (i) during the applicable Test Period or (ii) if applicable as described in clause (a) above, subsequent to such Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, made shall be calculated on a Pro Forma Basis pro forma basis assuming that all such Specified Transactions (and any increase or decrease in Consolidated EBITDAX EBITDA, Consolidated Cash EBITDA and the component financial definitions used therein attributable to any Specified Transaction) had occurred on the first day of the applicable Test Period (or, in the case of Consolidated Total AssetsAssets or “unrestricted” cash and Cash Equivalents, on the last day of the applicable Test Period). If If, since the beginning of any applicable Test Period Period, any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into Holdings, the Borrower or any of its Restricted Subsidiaries Subsidiary since the beginning of such Test Period shall have made any Specified Transaction that would have required adjustment pursuant to this Section 1.121.11, then such financial ratio or test (or including Consolidated Total AssetsAssets and Consolidated EBITDA) shall be calculated to give pro forma effect thereto in accordance with this Section 1.12; provided that with respect to any pro forma calculations to be made in connection with any acquisition or investment in respect of which financial statements for the relevant target are not available for the same Test Period for which internal financial statements of the Borrower are available, the Borrower shall determine such pro forma calculations on the basis of the available financial statements (even if for differing periods) or such other basis as determined on a commercially reasonable basis by the Borrower1.11.
(c) [Reserved]Whenever pro forma effect or a determination of pro forma compliance is to be given to a Specified Transaction or a Specified Restructuring, the pro forma calculations shall be made in good faith by a Responsible Officer of Holdings and may include, for the avoidance of doubt, the amount of “run rate” cost savings, operating expense reductions and cost synergies and other synergies projected by Holdings in good faith to result from or relating to any Specified Transaction (including the Transactions) or Specified Restructuring that is being given pro forma effect or for which a determination of pro forma compliance is being made that have been realized or are expected to be realized and for which the actions necessary to realize such cost savings, operating expense reductions, cost synergies or other synergies have been taken or initiated, have been committed to be taken or initiated, with respect to which substantial steps have been taken or initiated or which are expected to be taken or initiated (in the good faith determination of the Borrower) (calculated on a pro forma basis as though such cost savings, operating expense reductions, cost synergies and other synergies had been realized on the first day of such period and as if such cost savings, operating expense reductions, cost synergies and other synergies were realized during the entirety of such period and “run rate” means the full recurring benefit for a period that is associated with any action taken, any action committed to be taken, any action with respect to which substantial steps have been taken or initiated or any action that is expected to be taken (including any savings expected to result from the elimination of Public Company Costs) net of the amount of actual benefits realized during such period from such actions, and any such adjustments shall be included in the initial pro forma calculations of such financial ratios or tests and during any subsequent Test Period in which the effects thereof are expected to be realized) relating to such Specified Transaction or Specified Restructuring, and any such adjustments included in the initial pro forma calculations shall continue to apply to subsequent calculations of such financial ratios or tests, including during any subsequent Test Periods in which the effects thereof are expected to be realizable; provided that (A) such amounts are reasonably identifiable and factually supportable in the good faith judgment of Holdings, (B) such actions are taken, such actions are committed to be taken, substantial steps with respect to such action have been taken or initiated or such actions are expected to be taken no later than six fiscal quarters after the date of consummation of such Specified Transaction or the date of initiation of such Specified Restructuring, (C) no amounts shall be added to the extent duplicative of any amounts that are otherwise added back in computing Consolidated EBITDA or Consolidated Cash EBITDA (or any other components thereof), whether through a pro forma adjustment or otherwise, with respect to such period and (D) the aggregate amount of any such pro forma increase added to Consolidated EBITDA pursuant to this clause (D), when combined, without duplication, with amounts added to Consolidated EBITDA pursuant to clauses (a)(xv), (a)(xvi) and (b)(1) of the definition of “Consolidated EBITDA” and amounts excluded pursuant to clause (a) of the definition of “Consolidated Net Income” shall not exceed (x) for purpose of any calculation of Consolidated EBITDA under this Agreement, an amount equal to 20.0% of Consolidated EBITDA for such Test Period (calculated prior to giving effect to such add-backs) and (y) for purposes of any calculation of Consolidated Cash EBITDA under this Agreement, an amount equal to 25.0% of Consolidated Cash EBITDA for such Test Period (calculated prior to giving effect to such add-backs).
(d) In the event that (w) Holdings, the Borrower or any Restricted Subsidiary incurs (including by assumption or guaranteesguarantee) or repays Refinances (including by redemption, repurchase, repayment, retirement, discharge, defeasance retirement or extinguishment) any Indebtedness (other than Indebtedness incurred Indebtedness, in each case included in the calculations of any financial ratio or repaid under any revolving credit facility unless such Indebtedness has been permanently repaid and not replaced), (x) the Borrower or any Restricted Subsidiary issues, repurchases or redeems Disqualified Stock or (y) any Restricted Subsidiary issues, repurchases or redeems Preferred Stocktest, (i) during the applicable Test Period or (ii) subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then such financial ratio or test shall be calculated giving pro forma effect to such incurrence or repayment Refinancing of Indebtedness or such issuance(including pro forma effect to the application of the net proceeds therefrom), refinancing or redemption of Disqualified Stock or Preferred Stock in each case to the extent required, as if the same had occurred on the last day of the applicable Test Period; provided that, with respect to any Incurrence of Indebtedness pursuant to Section 6.01 (a) in reliance on the pro forma calculation of the Total Net Cash Leverage Ratio (a “Ratio Incurrence”) such calculation shall not give pro forma effect to any Indebtedness being incurred (or expected to be incurred) substantially simultaneously or contemporaneously with such Ratio Incurrence in reliance on any “basket” set forth in Section 6.01(a) (including clause (a) of the definition of “Incremental Cap” and any “baskets” measured as a percentage of Consolidated Total Assets, Consolidated Cash EBITDA or Consolidated EBITDA and including any Borrowing of up to $15,000,000 under the Revolving Credit Facility or issuance of any Letter of Credit, except to the extent expressly required to be calculated otherwise in Section 2.20, Section 6.01(a)(xxiii) or any Replacement Revolving Facility).
(e) Notwithstanding anything to the contrary in this Section 1.12 or in any classification under GAAP of any Person, business, assets or operations in respect of which a definitive agreement for the disposition thereof has been entered into, at the election of the Borrower, no Any such pro forma effect shall be given to any discontinued operations (and include, without limitation, all adjustments calculated in accordance with Regulation S-X under the Consolidated EBITDAX or Consolidated Total Assets attributable to any such Person, business, assets or operations shall not be excluded for any purposes hereunder) until such disposition shall have been consummatedSecurities Act.
(f) Notwithstanding anything in this Agreement or any Credit Document to the contrary, in the event any Lien, Indebtedness, Disposition, Investment, Restricted Payment, transaction, action, judgment or amount under any provision in this Agreement or any other Credit Document (or any portion thereof) meets the criteria of one or more than one of the categories of permitted Baskets under this Agreement (including within any defined terms), including any Fixed Basket or Non-Fixed Basket, as applicable, the Borrower shall be permitted, in its sole discretion, at the time of incurrence to divide and classify and to later, at any time and from time to time, re-divide and re-classify (including to re-classify utilization of any Fixed Basket as being incurred under any Non-Fixed Basket or other Fixed Basket or utilization of any Non-Fixed Basket as being incurred under any Fixed Basket or other Non-Fixed Basket) on one or more occasions (based on circumstances existing on the date of any such re-division and re-classification) any such Lien, Indebtedness, Disposition, Investment, Restricted Payment, transaction, action, judgment, or amount in whole or in part, among one or more than one applicable Baskets under this Agreement (in the case of re-classification or re-division, so long as the amount so re-classified or re-divided is permitted at the time of such re-classification or re-division to be incurred pursuant to the applicable Basket into which such amount is re-classified or re-divided at such time). For the avoidance of doubt, the amount of any Lien, Indebtedness, Disposition, Investment, Restricted Payment, transaction, action, judgment, or amount that shall be allocated to each such Basket shall be determined by the Borrower at the time of such division, classification, re-division or re-classification, as applicable. For all purposes hereunder, (x) “Fixed Basket” shall mean any Basket that is subject to a fixed-Dollar limit (including Baskets based on a percentage of Consolidated EBITDAX or Consolidated Total Assets) and (y) “Non-Fixed Basket” shall mean any Basket that is subject to compliance with a financial ratio or test (including any Basket requiring compliance with the Leverage Ratio Covenant on a Pro Forma Basis) (any such ratio or test, a “Financial Incurrence Test”).
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Pro Forma and Other Calculations. (a) Notwithstanding anything to the contrary herein, financial ratios and tests, tests (including the measurements of Consolidated Total Debt to EBITDAX Ratio and Assets, Consolidated EBITDA, Consolidated Cash EBITDA, Liquidity, the Consolidated Current Ratio Total Cash Leverage Ratio), shall be calculated in the manner prescribed by this Section 1.121.11, except in the case of testing actual compliance with Section 6.13, which will be tested based on actual Liquidity; providedprovided that, that notwithstanding anything to the contrary in clause clauses (b), (c) or (d) of this Section 1.121.11, when calculating the Consolidated Total Debt to EBITDAX Cash Leverage Ratio or the Consolidated Current Ratio, as applicable, for purposes of Section 10.11 (other than for the purpose of determining pro forma compliance with Section 10.112.11(d), in each case, the events described in this Section 1.12 1.11 that occurred subsequent to the end of the applicable Test Period shall not be given pro forma effect. In addition, whenever a financial ratio or test is to be calculated on a Pro Forma Basispro forma basis or requires pro forma compliance, the reference to the “Test Period” for purposes of calculating such financial ratio or test shall be deemed to be a reference to, and shall be based on, the Test Period most recently ended Test Period for which internal financial statements of the Borrower have been (or applicable Parent Entity, as applicablewere required to have been) are available delivered pursuant to Section 5.01(a) or (as determined in good faith by the Borrowerb).
(b) For purposes of calculating any financial ratio or test or compliance with any covenant determined by reference to Consolidated EBITDAX (or including Consolidated Total Assets, Consolidated EBITDA and Consolidated Cash EBITDA), Specified Transactions (with any incurrence or repayment Refinancing of any Indebtedness in connection therewith to be subject to clause (d) of this Section 1.121.11) that have been made (i) during the applicable Test Period or (ii) if applicable as described in clause (a) above, subsequent to such Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, made shall be calculated on a Pro Forma Basis pro forma basis assuming that all such Specified Transactions (and any increase or decrease in Consolidated EBITDAX EBITDA, Consolidated Cash EBITDA and the component financial definitions used therein attributable to any Specified Transaction) had occurred on the first day of the applicable Test Period (or, in the case of Consolidated Total AssetsAssets or “unrestricted” cash and Cash Equivalents, on the last day of the applicable Test Period). If If, since the beginning of any applicable Test Period Period, any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into Holdings, the Borrower or any of its Restricted Subsidiaries Subsidiary since the beginning of such Test Period shall have made any Specified Transaction that would have required adjustment pursuant to this Section 1.121.11, then such financial ratio or test (or including Consolidated Total AssetsAssets and Consolidated EBITDA) shall be calculated to give pro forma effect thereto in accordance with this Section 1.12; provided that with respect to any pro forma calculations to be made in connection with any acquisition or investment in respect of which financial statements for the relevant target are not available for the same Test Period for which internal financial statements of the Borrower are available, the Borrower shall determine such pro forma calculations on the basis of the available financial statements (even if for differing periods) or such other basis as determined on a commercially reasonable basis by the Borrower1.11.
(c) [Reserved]Whenever pro forma effect or a determination of pro forma compliance is to be given to a Specified Transaction, the pro forma calculations shall be made in good faith by a Responsible Officer of Holdings and, to the extent provided in the definition of Consolidated EBITDA may include the amount of “run rate” cost savings, operating expense reductions and cost synergies projected by Holdings in good faith to result from or relating to any Specified Transaction (including the Transactions) that is being given pro forma effect or for which a determination of pro forma compliance is being made that have been realized or are expected to be realized and for which the actions necessary to realize such cost savings, operating expense reductions, or cost synergies have been taken or initiated, have been committed to be taken or initiated, with respect to which substantial steps have been taken or initiated or which are expected to be taken or initiated (in the good faith determination of the Borrower) (calculated on a pro forma basis as though such cost savings, operating expense reductions, and cost synergies had been realized on the first day of such period and as if such cost savings, operating expense reductions, and cost synergies were realized during the entirety of such period and “run rate” means the full recurring benefit for a period that is associated with any action taken, any action committed to be taken, any action with respect to which substantial steps have been taken or initiated or any action that is expected to be taken net of the amount of actual benefits realized during such period from such actions, and any such adjustments shall be included in the initial pro forma calculations of such financial ratios or tests and during any subsequent Test Period in which the effects thereof are expected to be realized) relating to such Specified Transaction, and any such adjustments included in the initial pro forma calculations shall continue to apply to subsequent calculations of such financial ratios or tests, including during any subsequent Test Periods in which the effects thereof are expected to be realizable; provided that (A) such amounts are reasonably identifiable and factually supportable in the good faith judgment of Holdings, (B) such amounts are projected by the Borrower in good faith to be realized on or prior to the date that is four fiscal quarters after the date of consummation of such Specified Transaction and (C) no amounts shall be added to the extent duplicative of any amounts that are otherwise added back in computing Consolidated EBITDA or Consolidated Cash EBITDA (or any other components thereof), whether through a pro forma adjustment or otherwise, with respect to such period and (D) the aggregate amount of any such pro forma increase added to Consolidated EBITDA pursuant to this clause (D), when combined, without duplication, with amounts added to Consolidated EBITDA pursuant to clauses (a)(viii) and (b) of the definition of “Consolidated EBITDA” shall not exceed, for purpose of any calculation of Consolidated EBITDA under this Agreement, an amount equal to 15.0% of Consolidated EBITDA for such Test Period (calculated prior to giving effect to such add- backs).
(d) In the event that (w) Holdings, the Borrower or any Restricted Subsidiary incurs (including by assumption or guaranteesguarantee) or repays Refinances (including by redemption, repurchase, repayment, retirement, discharge, defeasance retirement or extinguishment) any Indebtedness (other than Indebtedness incurred Indebtedness, in each case included in the calculations of any financial ratio or repaid under any revolving credit facility unless such Indebtedness has been permanently repaid and not replaced), (x) the Borrower or any Restricted Subsidiary issues, repurchases or redeems Disqualified Stock or (y) any Restricted Subsidiary issues, repurchases or redeems Preferred Stocktest, (i) during the applicable Test Period or (ii) subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then such financial ratio or test shall be calculated giving pro forma effect to such incurrence or repayment Refinancing of Indebtedness or such issuance(including pro forma effect to the application of the net proceeds therefrom), refinancing or redemption of Disqualified Stock or Preferred Stock in each case to the extent required, as if the same had occurred on the last day of the applicable Test Period.
(e; provided that, with respect to any incurrence of Indebtedness pursuant to Section 6.01(a) Notwithstanding anything to in reliance on the contrary in this Section 1.12 or in any classification under GAAP of any Person, business, assets or operations in respect of which a definitive agreement for the disposition thereof has been entered into, at the election pro forma calculation of the Borrower, no Total Cash Leverage Ratio (a “Ratio Incurrence”) such calculation shall not give pro forma effect shall be given to any discontinued operations Indebtedness being incurred substantially simultaneously or contemporaneously with such Ratio Incurrence in reliance on any “basket” set forth in Section 6.01(a) (and the Consolidated EBITDAX or Consolidated Total Assets attributable but without giving pro forma effect to any such Personprepayment, businessrepayment, assets redemption, repurchase, discharge, defeasance or operations shall not be excluded for any purposes hereunder) until such disposition shall have been consummated.
(f) Notwithstanding anything in this Agreement or any Credit Document to the contrary, in the event any Lien, Indebtedness, Disposition, Investment, Restricted Payment, transaction, action, judgment or amount under any provision in this Agreement or any other Credit Document (or any portion thereof) meets the criteria of one or more than one of the categories of permitted Baskets under this Agreement (including within any defined terms), including any Fixed Basket or Non-Fixed Basket, as applicable, the Borrower shall be permitted, in its sole discretion, at the time of incurrence to divide and classify and to later, at any time and from time to time, re-divide and re-classify (including to re-classify utilization payment of any Fixed Basket as being incurred under any NonIndebtedness or Disqualified Equity Interests in connection with such non-Fixed Basket or other Fixed Basket or utilization of any Non-Fixed Basket as being incurred under any Fixed Basket or other Non-Fixed Basket) on one or more occasions (based on circumstances existing on the date of any such re-division and re-classification) any such Lien, Indebtedness, Disposition, Investment, Restricted Payment, transaction, action, judgment, or amount in whole or in part, among one or more than one applicable Baskets under this Agreement (in the case of re-classification or re-division, so long as the amount so re-classified or re-divided is permitted at the time of such re-classification or re-division to be incurred pursuant to the applicable Basket into which such amount is re-classified or re-divided at such time). For the avoidance of doubt, the amount of any Lien, Indebtedness, Disposition, Investment, Restricted Payment, transaction, action, judgment, or amount that shall be allocated to each such Basket shall be determined by the Borrower at the time of such division, classification, re-division or re-classification, as applicable. For all purposes hereunder, (x) Ratio Incurrence “Fixed Basket” shall mean any Basket that is subject to a fixed-Dollar limit (including Baskets based on a percentage of Consolidated EBITDAX or Consolidated Total Assets) and (y) “Non-Fixed Basket” shall mean any Basket that is subject to compliance with a financial ratio or test (including any Basket requiring compliance with the Leverage Ratio Covenant on a Pro Forma Basis) (any such ratio or test, a “Financial Incurrence Testbasket”).
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