Common use of ACCOUNTING AND OTHER TERMS Clause in Contracts

ACCOUNTING AND OTHER TERMS. Except as otherwise expressly provided herein, all accounting terms not otherwise defined in this Agreement shall have the meanings assigned to them in conformity with Applicable Accounting Standards. Calculations and determinations must be made following Applicable Accounting Standards. If at any time any change in Applicable Accounting Standards would affect the computation of any financial requirement set forth in any Loan Document (including for purposes of measuring compliance with any provision of Section 6), and either Borrower or the Collateral Agent shall so request, the Collateral Agent and Borrower shall negotiate in good faith to amend such requirement to preserve the original intent thereof in light of such change in Applicable Accounting Standards; provided, that, until so amended, (x) such requirement shall continue to be computed in accordance with Applicable Accounting Standards prior to such change therein and (y) all financial statements, Compliance Certificates and similar documents provided, delivered or submitted hereunder shall be provided, delivered or submitted together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in Applicable Accounting Standards. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts referred to herein, including in Section 5 and Section 6 shall be made, without giving effect to any (a) election under ASC 825-10 (or any other Financial Accounting Standards Board Accounting Standards Codification (“ASC”) or Financial Accounting Standard or Applicable Accounting Standard (including IFRS 9) having a similar result or effect) to value any Indebtedness or other liabilities of any Credit Party or any Subsidiary of any Credit Party at “fair value” and (b) any treatment of Indebtedness in respect of convertible debt instruments under ASC 470-20 (or any other ASC or Financial Accounting Standard or Applicable Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. Notwithstanding anything to the contrary above or in the definition of “Capital Lease Obligations”, all obligations of any Person that are or would have been treated as operating leases for purposes of Applicable Accounting Standards prior to the effectiveness of ASC 842 shall continue to be accounted for as operating leases for all purposes hereunder or under any other Loan Documents (whether or not such operating lease obligations were in effect on such date) notwithstanding the fact that such obligations are required in accordance with ASC 842 (on a prospective or retroactive basis or otherwise) to be treated as Capital Leases. Capitalized terms not otherwise defined in this Agreement shall have the meanings set forth in Section 13. All other terms contained in this Agreement, unless otherwise indicated, shall have the meaning provided by the Code to the extent such terms are defined therein. All references to “Dollars” or “$” are United States Dollars, unless otherwise noted. For purposes of Sections 4, 5 and 6 and solely with respect to any amount of anything in a currency other than Dollars, no Default or Event of Default shall be deemed to have occurred and no action shall be required to be taken solely as a result of changes in rates of currency exchange occurring over time (so long as, at the time incurred, made, acquired or otherwise coming into existence, such thing is otherwise permitted hereunder). Notwithstanding any other term of the Loan Documents, the parties hereto agree that (i) any amendment to the Issuer’s articles of association (including the adoption of new articles of association of Issuer), (ii) any amendment to the terms, conditions or other provisions of the Existing Convertible Indebtedness other than in any manner which would contravene in any respect any of the provisions of Section 6.10(a)(iv)), or (iii) any merger, business combination, formation of a New Subsidiary or any other step, action or transaction, in each case of clause (i), (ii) or (iii) above, specifically taken, entered into or completed by any Credit Party or any of its Subsidiaries, which is required in order to implement the IPO Transaction and which does not materially adversely affect ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender under any of the Loan Documents (provided, that so long as each material portion of Collateral owned by a Credit Party remains owned by a Credit Party after completion of the IPO Transaction there shall not be deemed to have been a material adverse effect on the ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender under any of the Loan Documents), shall not constitute a Default or Event of Default hereunder or require a consent or waiver from the Collateral Agent or any Lender under the terms of the Loan Documents, and each such step, action or transaction shall be expressly permitted under the terms of the Loan Documents. The Collateral Agent does not warrant or accept responsibility for, and shall not have any liability with respect to (a) the continuation of, administration of, submission of, calculation of or any other matter related to the Term SOFR Reference Rate or Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, the Term SOFR Reference Rate, Term SOFR or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes. The Collateral Agent and its affiliates or other related entities may engage in transactions that affect the calculation of the Term SOFR Reference Rate, Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Collateral Agent may select information sources or services in its reasonable discretion to ascertain the Term SOFR Reference Rate, Term SOFR or any other Benchmark, in each case pursuant to the terms of this Agreement, and shall have no liability to Borrower, any Lender or any other Person for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.

Appears in 4 contracts

Samples: Fifteenth Amendment (LumiraDx LTD), Loan Agreement (LumiraDx LTD), Loan Agreement (LumiraDx LTD)

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ACCOUNTING AND OTHER TERMS. Except as otherwise expressly provided herein, all accounting Accounting terms not otherwise defined in this Agreement shall have the meanings assigned to them in conformity with Applicable Accounting Standardsbe construed following GAAP. Calculations and determinations must be made following Applicable Accounting Standards. If GAAP, provided, however, that if at any time any change in Applicable Accounting Standards GAAP would affect the computation of any financial covenant or requirement set forth in any Loan Document (including for purposes of measuring compliance with any provision of Section 6)Document, and either Borrower or the Collateral Agent any Lender shall so request, the Collateral Agent Borrower and Borrower Lenders shall negotiate in good faith to amend such covenant or requirement to preserve the original intent thereof in light of such change in Applicable Accounting StandardsGAAP; provided, further, that, until so amended, (xi) such covenant or requirement shall continue to be computed in accordance with Applicable Accounting Standards GAAP prior to such change therein and (yii) all Borrower shall provide Lenders financial statements, Compliance Certificates statements and similar other documents provided, delivered required under this Agreement or submitted as reasonably requested hereunder shall be provided, delivered or submitted together with setting forth a reconciliation between the calculations and amounts set forth therein of such ratio or requirement made before and after giving effect to such change in Applicable Accounting Standards. Notwithstanding any other provision contained hereinGAAP; provided, all terms of an accounting or financial nature used herein shall be construedfurther, and all computations of amounts referred to herein, including in Section 5 and Section 6 shall be made, without giving effect to any that (ax) election under ASC 825-10 (or any other Financial Accounting Standards Board Accounting Standards Codification (“ASC”) or Financial Accounting Standard or Applicable Accounting Standard (including IFRS 9) having a similar result or effect) to value any Indebtedness or other liabilities of any Credit Party or any Subsidiary of any Credit Party at “fair value” and (b) any treatment of Indebtedness in respect of convertible debt instruments under ASC 470-20 (or any other ASC or Financial Accounting Standard or Applicable Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. Notwithstanding anything to the contrary above or in the definition of “Capital Lease Obligations”, all obligations of any Person that are or would have been treated as operating leases for purposes of Applicable Accounting Standards GAAP prior to the effectiveness issuance by the Financial Accounting Standards Board on February 25, 2016 of ASC 842 an Accounting Standards Update (the “ASU”) shall continue to be accounted for as operating leases for purposes of all purposes hereunder or under any other Loan Documents financial definitions, calculations and covenants for purpose of this Agreement (whether or not such operating lease obligations were in effect on such date) notwithstanding the fact that such obligations are required in accordance with ASC 842 the ASU (on a prospective or retroactive basis or otherwise) to be treated as Capital Leasescapitalized lease obligations in accordance with GAAP. Notwithstanding the foregoing, all financial covenant (if any) and other financial calculations shall be computed with respect to Borrower only, and not on a consolidated basis. Capitalized terms not otherwise defined in this Agreement shall have the meanings set forth in Section 1314. All other terms contained in this Agreement, unless otherwise indicated, shall have the meaning provided by the Code to the extent such terms are defined therein. All references to “Dollars” or “$” are United States Dollars, unless otherwise noted. For purposes of Sections 4, 5 and 6 and solely with respect to any amount of anything in a currency other than Dollars, no Default or Event of Default shall be deemed to have occurred and no action shall be required to be taken solely as a result of changes in rates of currency exchange occurring over time (so long as, at the time incurred, made, acquired or otherwise coming into existence, such thing is otherwise permitted hereunder). Notwithstanding any other term of the Loan Documents, the parties hereto agree that (i) any amendment to the Issuer’s articles of association (including the adoption of new articles of association of Issuer), (ii) any amendment to the terms, conditions or other provisions of the Existing Convertible Indebtedness other than in any manner which would contravene in any respect any of the provisions of Section 6.10(a)(iv)), or (iii) any merger, business combination, formation of a New Subsidiary or any other step, action or transaction, in each case of clause (i), (ii) or (iii) above, specifically taken, entered into or completed by any Credit Party or any of its Subsidiaries, which is required in order to implement the IPO Transaction and which does not materially adversely affect ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender under any of the Loan Documents (provided, that so long as each material portion of Collateral owned by a Credit Party remains owned by a Credit Party after completion of the IPO Transaction there shall not be deemed to have been a material adverse effect on the ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender under any of the Loan Documents), shall not constitute a Default or Event of Default hereunder or require a consent or waiver from the Collateral Agent or any Lender under the terms of the Loan Documents, and each such step, action or transaction shall be expressly permitted under the terms of the Loan Documents. The Collateral Agent does not warrant or accept responsibility for, and shall not have any liability with respect to (a) the continuation of, administration of, submission of, calculation of or any other matter related to the Term SOFR Reference Rate or Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, the Term SOFR Reference Rate, Term SOFR or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes. The Collateral Agent and its affiliates or other related entities may engage in transactions that affect the calculation of the Term SOFR Reference Rate, Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Collateral Agent may select information sources or services in its reasonable discretion to ascertain the Term SOFR Reference Rate, Term SOFR or any other Benchmark, in each case pursuant to the terms of this Agreement, and shall have no liability to Borrower, any Lender or any other Person for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.

Appears in 3 contracts

Samples: Loan Agreement (Fluidigm Corp), Loan Agreement (Fluidigm Corp), Loan Agreement (Fluidigm Corp)

ACCOUNTING AND OTHER TERMS. Except as otherwise expressly provided herein, all accounting Accounting terms not otherwise defined in this Agreement shall have the meanings assigned to them in conformity with Applicable Accounting Standardsbe construed following GAAP. Calculations and determinations must be made following Applicable Accounting Standards. If GAAP, (except for (i) non-compliance with FAS 123R in monthly reporting and (ii) with respect to unaudited financial statements for the absence of footnotes and subject to year-end audit adjustments, provided, however, that if at any time any change in Applicable Accounting Standards GAAP would affect the computation of any financial covenant or requirement set forth in any Loan Document (including for purposes of measuring compliance with any provision of Section 6)Document, and either Borrower or the Collateral Agent Bank shall so request, the Collateral Agent Borrower and Borrower Bank shall negotiate in good faith to amend such covenant or requirement to preserve the original intent thereof in light of such change in Applicable Accounting StandardsGAAP; provided, further, that, until so amended, (xi) such covenant or requirement shall continue to be computed in accordance with Applicable Accounting Standards GAAP prior to such change therein and (yii) all Borrower shall provide Bank financial statements, Compliance Certificates statements and similar other documents provided, delivered required under this Agreement or submitted as reasonably requested hereunder shall be provided, delivered or submitted together with setting forth a reconciliation between the calculations and amounts set forth therein of such ratio or requirement made before and after giving effect to such change in Applicable Accounting Standards. Notwithstanding any other provision contained hereinGAAP; provided, all terms of an accounting or financial nature used herein shall be construedfurther, and all computations of amounts referred to herein, including in Section 5 and Section 6 shall be made, without giving effect to any that (ax) election under ASC 825-10 (or any other Financial Accounting Standards Board Accounting Standards Codification (“ASC”) or Financial Accounting Standard or Applicable Accounting Standard (including IFRS 9) having a similar result or effect) to value any Indebtedness or other liabilities of any Credit Party or any Subsidiary of any Credit Party at “fair value” and (b) any treatment of Indebtedness in respect of convertible debt instruments under ASC 470-20 (or any other ASC or Financial Accounting Standard or Applicable Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. Notwithstanding anything to the contrary above or in the definition of “Capital Lease Obligations”, all obligations of any Person that are or would have been treated as operating leases for purposes of Applicable Accounting Standards GAAP prior to the effectiveness issuance by the Financial Accounting Standards Board on February 25, 2016 of ASC 842 an Accounting Standards Update (the “ASU”) shall continue to be accounted for as operating leases for purposes of all purposes hereunder or under any other Loan Documents financial definitions, calculations and covenants for purpose of this Agreement (whether or not such operating lease obligations were in effect on such date) notwithstanding the fact that such obligations are required in accordance with ASC 842 the ASU (on a prospective or retroactive basis or otherwise) to be treated as Capital Leasescapitalized lease obligations in accordance with GAAP. Notwithstanding the foregoing, all financial covenant (if any) and other financial calculations shall be computed with respect to Borrower only, and not on a consolidated basis. Capitalized terms not otherwise defined in this Agreement shall have the meanings set forth in Section 13. All other terms contained in this Agreement, unless otherwise indicated, shall have the meaning provided by the Code to the extent such terms are defined therein. All references to “Dollars” or “$” are United States Dollars, unless otherwise noted. For purposes of Sections 4, 5 and 6 and solely with respect to any amount of anything in a currency other than Dollars, no Default or Event of Default shall be deemed to have occurred and no action shall be required to be taken solely as a result of changes in rates of currency exchange occurring over time (so long as, at the time incurred, made, acquired or otherwise coming into existence, such thing is otherwise permitted hereunder). Notwithstanding any other term of the Loan Documents, the parties hereto agree that (i) any amendment to the Issuer’s articles of association (including the adoption of new articles of association of Issuer), (ii) any amendment to the terms, conditions or other provisions of the Existing Convertible Indebtedness other than in any manner which would contravene in any respect any of the provisions of Section 6.10(a)(iv)), or (iii) any merger, business combination, formation of a New Subsidiary or any other step, action or transaction, in each case of clause (i), (ii) or (iii) above, specifically taken, entered into or completed by any Credit Party or any of its Subsidiaries, which is required in order to implement the IPO Transaction and which does not materially adversely affect ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender under any of the Loan Documents (provided, that so long as each material portion of Collateral owned by a Credit Party remains owned by a Credit Party after completion of the IPO Transaction there shall not be deemed to have been a material adverse effect on the ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender under any of the Loan Documents), shall not constitute a Default or Event of Default hereunder or require a consent or waiver from the Collateral Agent or any Lender under the terms of the Loan Documents, and each such step, action or transaction shall be expressly permitted under the terms of the Loan Documents. The Collateral Agent does not warrant or accept responsibility for, and shall not have any liability with respect to (a) the continuation of, administration of, submission of, calculation of or any other matter related to the Term SOFR Reference Rate or Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, the Term SOFR Reference Rate, Term SOFR or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes. The Collateral Agent and its affiliates or other related entities may engage in transactions that affect the calculation of the Term SOFR Reference Rate, Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Collateral Agent may select information sources or services in its reasonable discretion to ascertain the Term SOFR Reference Rate, Term SOFR or any other Benchmark, in each case pursuant to the terms of this Agreement, and shall have no liability to Borrower, any Lender or any other Person for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.

Appears in 3 contracts

Samples: Loan and Security Agreement (Outset Medical, Inc.), Loan and Security Agreement (Livongo Health, Inc.), Loan and Security Agreement (Livongo Health, Inc.)

ACCOUNTING AND OTHER TERMS. Except as otherwise expressly provided herein, all accounting terms not otherwise defined in this Agreement shall have the meanings assigned to them in conformity with Applicable Accounting Standards. Calculations and determinations must be made following Applicable Accounting Standards. If at any time any change in Applicable Accounting Standards would affect the computation of any financial requirement set forth in any Loan Document (including for purposes of measuring compliance with any provision of Section 6)Document, and either Borrower or the Collateral Agent shall so request, the Collateral Agent and Borrower shall negotiate in good faith to amend such requirement to preserve the original intent thereof in light of such change in Applicable Accounting Standards; provided, that, until so amended, (x) such requirement shall continue to be computed in accordance with Applicable Accounting Standards prior to such change therein and (y) therein. Without limiting the foregoing, leases shall continue to be classified on a basis consistent with that reflected in the audited consolidated financial statements of Borrower for the fiscal year ended December 31, 2018 for all financial statementspurposes of this Agreement, Compliance Certificates and similar documents provided, delivered or submitted hereunder shall be provided, delivered or submitted together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such notwithstanding any change in Applicable Accounting Standards. Notwithstanding any other provision contained hereinStandards relating thereto or the application thereof, all terms of an accounting or financial nature used herein unless Borrower and the Collateral Agent shall be construedenter into a mutually acceptable amendment addressing such changes, and all computations of amounts referred to herein, including in Section 5 and Section 6 shall be made, without giving effect to any (a) election under ASC 825-10 (or any other Financial Accounting Standards Board Accounting Standards Codification (“ASC”) or Financial Accounting Standard or Applicable Accounting Standard (including IFRS 9) having a similar result or effect) to value any Indebtedness or other liabilities of any Credit Party or any Subsidiary of any Credit Party at “fair value” and (b) any treatment of Indebtedness in respect of convertible debt instruments under ASC 470-20 (or any other ASC or Financial Accounting Standard or Applicable Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. Notwithstanding anything to the contrary above or in the definition of “Capital Lease Obligations”, all obligations of any Person that are or would have been treated as operating leases provided for purposes of Applicable Accounting Standards prior to the effectiveness of ASC 842 shall continue to be accounted for as operating leases for all purposes hereunder or under any other Loan Documents (whether or not such operating lease obligations were in effect on such date) notwithstanding the fact that such obligations are required in accordance with ASC 842 (on a prospective or retroactive basis or otherwise) to be treated as Capital Leasesabove. Capitalized terms not otherwise defined in this Agreement shall have the meanings set forth in Section 13. All other terms contained in this Agreement, unless otherwise indicated, shall have the meaning provided by the Code to the extent such terms are defined therein. All references to “Dollars” or “$” are United States Dollars, unless otherwise noted. For purposes of Sections 4, 5 and determining compliance with Section 6 and solely with respect to any the amount of anything any Indebtedness in a currency other than Dollars, no Default or Event of Default shall be deemed to have occurred and no action shall be required to be taken solely as a result of changes in rates of currency exchange occurring over after the time such Indebtedness is incurred, made or acquired (so long asas such Indebtedness, at the time incurred, mademade or acquired, acquired or otherwise coming into existence, such thing is otherwise was permitted hereunder). Notwithstanding any other term of the Loan Documents, the parties hereto agree that (i) any amendment to the Issuer’s articles of association (including the adoption of new articles of association of Issuer), (ii) any amendment to the terms, conditions or other provisions of the Existing Convertible Indebtedness other than in any manner which would contravene in any respect any of the provisions of Section 6.10(a)(iv)), or (iii) any merger, business combination, formation of a New Subsidiary or any other step, action or transaction, in each case of clause (i), (ii) or (iii) above, specifically taken, entered into or completed by any Credit Party or any of its Subsidiaries, which is required in order to implement the IPO Transaction and which does not materially adversely affect ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender under any of the Loan Documents (provided, that so long as each material portion of Collateral owned by a Credit Party remains owned by a Credit Party after completion of the IPO Transaction there shall not be deemed to have been a material adverse effect on the ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender under any of the Loan Documents), shall not constitute a Default or Event of Default hereunder or require a consent or waiver from the Collateral Agent or any Lender under the terms of the Loan Documents, and each such step, action or transaction shall be expressly permitted under the terms of the Loan Documents. The Collateral Agent does not warrant or accept responsibility for, and shall not have any liability with respect to (a) the continuation of, administration of, submission of, calculation of or any other matter related to the Term SOFR Reference Rate or Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, the Term SOFR Reference Rate, Term SOFR or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes. The Collateral Agent and its affiliates or other related entities may engage in transactions that affect the calculation of the Term SOFR Reference Rate, Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Collateral Agent may select information sources or services in its reasonable discretion to ascertain the Term SOFR Reference Rate, Term SOFR or any other Benchmark, in each case pursuant to the terms of this Agreement, and shall have no liability to Borrower, any Lender or any other Person for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.

Appears in 2 contracts

Samples: Guaranty and Security Agreement (Global Blood Therapeutics, Inc.), Guaranty and Security Agreement (Global Blood Therapeutics, Inc.)

ACCOUNTING AND OTHER TERMS. Except as otherwise expressly provided herein, all accounting terms not otherwise defined in this Agreement shall have the meanings assigned to them in conformity with Applicable Accounting Standards. Calculations and determinations must be made following Applicable Accounting Standards. If at any time any change in Applicable Accounting Standards would affect the computation of any financial requirement set forth in any Loan Document (including for purposes of measuring compliance with any provision of Section 6)Document, and either Borrower or the Collateral Agent shall so request, the Collateral Agent and Borrower shall negotiate in good faith to amend such requirement to preserve the original intent thereof in light of such change in Applicable Accounting Standards; provided, that, until so amended, (x) such requirement shall continue to be computed in accordance with Applicable Accounting Standards prior to such change therein and (y) all financial statements, Compliance Certificates and similar documents provided, delivered or submitted hereunder shall be provided, delivered or submitted together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in Applicable Accounting Standardstherein. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts referred to herein, including in Section 5 Article V and Section 6 Article VI shall be made, without giving effect to any (a) election under ASC 825-10 (or any other Financial Accounting Standards Board Accounting Standards Codification (“ASC”) or Financial Accounting Standard or Applicable Accounting Standard (including IFRS 9) having a similar result or effect) to value any Indebtedness or other liabilities of any Credit Party or any Subsidiary of any Credit Party at “fair value” and (b) any treatment of Indebtedness in respect of convertible debt instruments under ASC 470-20 (or any other ASC or Financial Accounting Standard or Applicable Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. Notwithstanding anything to the contrary above or in the definition of “Capital Lease Obligations”, all obligations of any Person that are or would have been treated as operating leases for purposes of Applicable Accounting Standards prior to the effectiveness of ASC 842 shall continue to be accounted for as operating leases for all purposes hereunder or under any other Loan Documents (whether or not such operating lease obligations were in effect on such date) notwithstanding the fact that such obligations are required in accordance with ASC 842 (on a prospective or retroactive basis or otherwise) to be treated as Capital Leases. Capitalized terms not otherwise defined in this Agreement shall have the meanings set forth in Section 13. All other terms contained in this Agreement, unless otherwise indicated, shall have the meaning provided by the Code to the extent such terms are defined therein. All references to “Dollars” or “$” are United States Dollars, unless otherwise noted. For purposes of Sections 4, 5 and 6 and solely with respect to any amount of anything in a currency other than Dollars, no Default or Event of Default shall be deemed to have occurred and no action shall be required to be taken solely as a result of changes in rates of currency exchange occurring over time (so long as, at the time incurred, made, acquired or otherwise coming into existence, such thing is otherwise permitted hereunder). Notwithstanding any other term of the Loan Documents, the parties hereto agree that (i) any amendment to the Issuer’s articles of association (including the adoption of new articles of association of Issuer), (ii) any amendment to the terms, conditions or other provisions of the Existing Convertible Indebtedness other than in any manner which would contravene in any respect any of the provisions of Section 6.10(a)(iv)), or (iii) any merger, business combination, formation of a New Subsidiary or any other step, action or transaction, in each case of clause (i), (ii) or (iii) above, specifically taken, entered into or completed by any Credit Party or any of its Subsidiaries, which is required in order to implement the IPO Transaction and which does not materially adversely affect ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender under any of the Loan Documents (provided, that so long as each material portion of Collateral owned by a Credit Party remains owned by a Credit Party after completion of the IPO Transaction there shall not be deemed to have been a material adverse effect on the ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender under any of the Loan Documents), shall not constitute a Default or Event of Default hereunder or require a consent or waiver from the Collateral Agent or any Lender under the terms of the Loan Documents, and each such step, action or transaction shall be expressly permitted under the terms of the Loan Documents. The Collateral Agent does not warrant or accept responsibility for, and shall not have any liability with respect to (a) the continuation of, administration of, submission of, calculation of or any other matter related to the Term SOFR Reference Rate or Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, the Term SOFR Reference Rate, Term SOFR or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes. The Collateral Agent and its affiliates or other related entities may engage in transactions that affect the calculation of the Term SOFR Reference Rate, Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Collateral Agent may select information sources or services in its reasonable discretion to ascertain the Term SOFR Reference Rate, Term SOFR or any other Benchmark, in each case pursuant to the terms of this Agreement, and shall have no liability to Borrower, any Lender or any other Person for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.

Appears in 2 contracts

Samples: Loan Agreement (Collegium Pharmaceutical, Inc), Loan Agreement (Collegium Pharmaceutical, Inc)

ACCOUNTING AND OTHER TERMS. Except as otherwise expressly provided hereinAs used in this Agreement, all the Revolving Note, any other Loan Document, or any certificate, report or other document made or delivered pursuant to this Agreement, accounting terms not otherwise defined in Section 1.1 or elsewhere in this Agreement and accounting terms partly defined in Section 1.1 to the extent not defined, shall have the respective meanings assigned given to them in conformity with Applicable Accounting Standards. Calculations and determinations must be made following Applicable Accounting Standards. If at any time any change in Applicable Accounting Standards would affect under GAAP; provided, however, whenever such accounting terms are used for the computation of any financial requirement set forth in any Loan Document (including for purposes of measuring determining compliance with any provision of Section 6)financial covenants in this Agreement, and either Borrower or the Collateral Agent such accounting terms shall so request, the Collateral Agent and Borrower shall negotiate in good faith to amend such requirement to preserve the original intent thereof in light of such change in Applicable Accounting Standards; provided, that, until so amended, (x) such requirement shall continue to be computed defined in accordance with Applicable Accounting Standards prior to such change therein and (y) all GAAP as applied in preparation of the audited financial statementsstatements of Borrower for the fiscal year ended December 31, Compliance Certificates and similar documents provided, delivered or submitted hereunder shall be provided, delivered or submitted together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in Applicable Accounting Standards. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts referred to herein, including in Section 5 and Section 6 shall be made, without giving effect to any (a) election under ASC 825-10 (or any other Financial Accounting Standards Board Accounting Standards Codification (“ASC”) or Financial Accounting Standard or Applicable Accounting Standard (including IFRS 9) having a similar result or effect) to value any Indebtedness or other liabilities of any Credit Party or any Subsidiary of any Credit Party at “fair value” and (b) any treatment of Indebtedness in respect of convertible debt instruments under ASC 470-20 (or any other ASC or Financial Accounting Standard or Applicable Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. Notwithstanding anything to the contrary above or in the definition of “Capital Lease Obligations”, all obligations of any Person that are or would have been treated as operating leases for purposes of Applicable Accounting Standards prior to the effectiveness of ASC 842 shall continue to be accounted for as operating leases for all purposes hereunder or under any other Loan Documents (whether or not such operating lease obligations were in effect on such date) notwithstanding the fact that such obligations are required in accordance with ASC 842 (on a prospective or retroactive basis or otherwise) to be treated as Capital Leases2011. Capitalized terms not otherwise defined in this Agreement shall have the meanings set forth in Section 131.1. All other terms contained in this Agreement, unless otherwise indicated, shall have the meaning provided by the Code to the extent such terms are defined therein. The terms “herein”, “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Each reference to a Section, an Exhibit or a Schedule shall be deemed to refer to a Section, an Exhibit or a Schedule, as applicable, of this Agreement, as modified or supplemented pursuant to the terms hereof. Any pronoun used shall be deemed to cover all genders. Wherever appropriate in the context, terms used herein in the singular also include the plural and vice versa. All references to “Dollars” or “$” are United States Dollarsstatutes (including the Code) and related regulations shall include any amendments of same and any successor statutes and regulations. Unless otherwise provided, unless otherwise noted. For purposes of Sections 4, 5 and 6 and solely with respect all references to any amount instruments or agreements to which HSBC is a party, including, without limitation, references to any of anything the other Loan Documents, shall include any and all modifications or amendments thereto and any and all extensions or renewals thereof. All references herein to the time of day shall mean the time in a currency other than Dollars, no California. A Default or Event of Default shall be deemed to have occurred and no action shall be required to be taken solely as a result of changes in rates of currency exchange occurring over time (so long as, exist at all times during the time incurred, made, acquired or otherwise coming into existence, such thing is otherwise permitted hereunder). Notwithstanding any other term of the Loan Documents, the parties hereto agree that (i) any amendment to the Issuer’s articles of association (including the adoption of new articles of association of Issuer), (ii) any amendment to the terms, conditions or other provisions of the Existing Convertible Indebtedness other than in any manner which would contravene in any respect any of the provisions of Section 6.10(a)(iv)), or (iii) any merger, business combination, formation of a New Subsidiary or any other step, action or transaction, in each case of clause (i), (ii) or (iii) above, specifically taken, entered into or completed by any Credit Party or any of its Subsidiaries, which is required in order to implement the IPO Transaction and which does not materially adversely affect ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender under any of the Loan Documents (provided, that so long as each material portion of Collateral owned by a Credit Party remains owned by a Credit Party after completion of the IPO Transaction there shall not be deemed to have been a material adverse effect period commencing on the ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender under any of the Loan Documents), shall not constitute a date that such Default or Event of Default hereunder occurs to the date on which such Default or require Event of Default is waived in writing pursuant to this Agreement or, in the case of a consent Default that is capable of being cured, is cured within any period of cure expressly provided for in this Agreement; and an Event of Default shall “continue” or waiver from be “continuing” until such Event of Default has been waived in writing by HSBC. Wherever the Collateral Agent phrase “to the best of Borrower’s knowledge” or any Lender under words of similar import relating to the terms knowledge or the awareness of the Borrower are used in this Agreement or other Loan Documents, such phrase shall mean and each refer to (i) the actual knowledge of a senior officer of Borrower or (ii) the knowledge that a senior officer would have obtained if he had engaged in good faith and diligent performance of his duties, including the making of such step, action or transaction shall reasonably specific inquiries as may be expressly permitted under the terms necessary of the Loan Documents. The Collateral Agent does not warrant employees or accept responsibility for, agents of Borrower and shall not have any liability with respect to (a) the continuation of, administration of, submission of, calculation of or any other matter related to the Term SOFR Reference Rate or Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, the Term SOFR Reference Rate, Term SOFR or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes. The Collateral Agent and its affiliates or other related entities may engage in transactions that affect the calculation of the Term SOFR Reference Rate, Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Collateral Agent may select information sources or services in its reasonable discretion good faith attempt to ascertain the Term SOFR Reference Rate, Term SOFR existence or any other Benchmark, in each case pursuant accuracy of the matter to the terms of this Agreement, and shall have no liability to Borrower, any Lender or any other Person for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any which such rate (or component thereof) provided by any such information source or servicephrase relates.

Appears in 1 contract

Samples: Loan Agreement (Energy Recovery, Inc.)

ACCOUNTING AND OTHER TERMS. Except as otherwise expressly provided herein, all accounting Accounting terms not otherwise defined in this Agreement shall have the meanings assigned to them in conformity with Applicable Accounting Standardsbe construed following GAAP. Calculations and determinations must be made following Applicable Accounting Standards. If GAAP, except with respect to unaudited financial statements for the absence of footnotes and subject to year-end audit adjustments, provided that if at any time any change in Applicable Accounting Standards GAAP would affect the computation of any financial covenant requirement set forth in any of the Loan Document (including for purposes of measuring compliance with any provision of Section 6)Documents, and either Borrower or the Collateral Agent Bank shall so request, the Collateral Agent Borrower and Borrower Bank shall negotiate in good faith to amend such ratio or covenant requirement to preserve the original intent thereof in light of such change in Applicable Accounting StandardsGAAP; provided, further, that, until so amended, (x) such covenant requirement shall continue to be computed in accordance with Applicable Accounting Standards GAAP prior to such change therein and (y) all financial statements, Compliance Certificates and similar documents therein; provided, delivered or submitted hereunder shall be providedfurther, delivered or submitted together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in Applicable Accounting Standards. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts referred to herein, including in Section 5 and Section 6 shall be made, without giving effect to any (a) election under ASC 825-10 (or any other Financial Accounting Standards Board Accounting Standards Codification (“ASC”) or Financial Accounting Standard or Applicable Accounting Standard (including IFRS 9) having a similar result or effect) to value any Indebtedness or other liabilities of any Credit Party or any Subsidiary of any Credit Party at “fair value” and (b) any treatment of Indebtedness in respect of convertible debt instruments under ASC 470-20 (or any other ASC or Financial Accounting Standard or Applicable Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. Notwithstanding anything to the contrary above or in the definition of “Capital Lease Obligations”, that all obligations of any Person that are or would have been treated as operating leases for purposes of Applicable Accounting Standards GAAP prior to the effectiveness of ASC 842 issuance by the ASU shall continue to be accounted for as operating leases for purposes of all purposes hereunder or under any other Loan Documents financial definitions, calculations and covenants for purpose of this Agreement (whether or not such operating lease obligations were in effect on such date) notwithstanding the fact that such obligations are required in accordance with ASC 842 the ASU (on a prospective or retroactive basis or otherwise) to be treated as Capital Leasescapitalized lease obligations in accordance with GAAP. Notwithstanding the foregoing, all financial covenant and other financial calculations shall be computed with respect to Borrower only, and not on a consolidated basis. Notwithstanding any terms in this Agreement to the contrary, for purposes of any financial covenant and other financial calculations in this Agreement (other than for purposes of updating the Borrowing Base) which are made in whole or in part based upon the Availability Amount as of the last day of a particular month, calculations relying on information from a Borrowing Base Statement shall be derived from the Borrowing Base Statement delivered either (i) within seven (7) days of month end or (ii) weekly if the Streamline Period is not in effect, pursuant to Section 6.2(a) (and not, for clarity, any more recent Borrowing Base Statement delivered after such period), and the actual delivery date of such Borrowing Base Statement shall be deemed to be the last day of the applicable month. Capitalized terms not otherwise defined in this Agreement shall have the meanings set forth in Section 1313.1. All other terms contained in this Agreement, unless otherwise indicated, shall have the meaning provided by the Code to the extent such terms are defined therein. All references to “Dollars” or “$” are United States Dollars, unless otherwise noted. For purposes of Sections 4, 5 and 6 and solely with respect to any amount of anything in a currency other than Dollars, no Default or Event of Default shall be deemed to have occurred and no action shall be required to be taken solely as a result of changes in rates of currency exchange occurring over time (so long as, at the time incurred, made, acquired or otherwise coming into existence, such thing is otherwise permitted hereunder). Notwithstanding any other term of the Loan Documents, the parties hereto agree that (i) any amendment to the Issuer’s articles of association (including the adoption of new articles of association of Issuer), (ii) any amendment to the terms, conditions or other provisions of the Existing Convertible Indebtedness other than in any manner which would contravene in any respect any of the provisions of Section 6.10(a)(iv)), or (iii) any merger, business combination, formation of a New Subsidiary or any other step, action or transaction, in each case of clause (i), (ii) or (iii) above, specifically taken, entered into or completed by any Credit Party or any of its Subsidiaries, which is required in order to implement the IPO Transaction and which does not materially adversely affect ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender under any of the Loan Documents (provided, that so long as each material portion of Collateral owned by a Credit Party remains owned by a Credit Party after completion of the IPO Transaction there shall not be deemed to have been a material adverse effect on the ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender under any of the Loan Documents), shall not constitute a Default or Event of Default hereunder or require a consent or waiver from the Collateral Agent or any Lender under the terms of the Loan Documents, and each such step, action or transaction shall be expressly permitted under the terms of the Loan Documents. The Collateral Agent does not warrant or accept responsibility for, and shall not have any liability with respect to (a) the continuation of, administration of, submission of, calculation of or any other matter related to the Term SOFR Reference Rate or Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, the Term SOFR Reference Rate, Term SOFR or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes. The Collateral Agent and its affiliates or other related entities may engage in transactions that affect the calculation of the Term SOFR Reference Rate, Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Collateral Agent may select information sources or services in its reasonable discretion to ascertain the Term SOFR Reference Rate, Term SOFR or any other Benchmark, in each case pursuant to the terms of this Agreement, and shall have no liability to Borrower, any Lender or any other Person for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.

Appears in 1 contract

Samples: Loan and Security Agreement (Sandbridge Acquisition Corp)

ACCOUNTING AND OTHER TERMS. Except as otherwise expressly provided herein, all accounting (a) Accounting terms not otherwise defined in this Agreement shall have the meanings assigned to them in conformity with Applicable Accounting Standardsbe construed following GAAP. Calculations and determinations must be made following Applicable Accounting Standards. If GAAP (except for with respect to unaudited financial statements for the absence of footnotes and subject to year-end audit adjustments), provided that if at any time any change in Applicable Accounting Standards GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document (including for purposes of measuring compliance with any provision of Section 6)Document, and either Borrower or the Collateral Agent any Lender shall so request, the Collateral Agent Borrower and Borrower Lenders shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in Applicable Accounting StandardsGAAP; provided, further, that, until so amended, (xi) such ratio or requirement shall continue to be computed in accordance with Applicable Accounting Standards GAAP prior to such change therein and (yii) all Borrower shall provide Agent and Lenders financial statements, Compliance Certificates statements and similar other documents provided, delivered required under this Agreement or submitted as reasonably requested hereunder shall be provided, delivered or submitted together with setting forth a reconciliation between the calculations and amounts set forth therein of such ratio or requirement made before and after giving effect to such change in Applicable Accounting StandardsGAAP. Notwithstanding the foregoing, for purposes of determining compliance with any other provision covenant contained herein, Indebtedness of the Borrower and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded. In addition, notwithstanding the foregoing, all terms of an accounting or financial nature used covenants contained herein shall be construedcalculated, and compliance with all computations of amounts referred to herein, including in Section 5 and Section 6 other covenants shall be made, determined without giving effect to any (a) election under ASC 825-10 (or any other change in accounting for leases pursuant to GAAP resulting from the adoption of Financial Accounting Standards Board Accounting Standards Codification Update No. 2016-02, Leases (Topic 842) (“ASCFAS 842) or Financial Accounting Standard or Applicable Accounting Standard (including IFRS 9) having a similar result or effect) to value any Indebtedness or other liabilities of any Credit Party or any Subsidiary of any Credit Party at “fair value” and (b) any treatment of Indebtedness in respect of convertible debt instruments under ASC 470-20 (or any other ASC or Financial Accounting Standard or Applicable Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein), and such Indebtedness shall at all times be valued at the full stated principal amount thereof. Notwithstanding anything to the contrary above or in the definition of “Capital Lease Obligations”, all obligations of any Person that are or would have been treated as operating leases for purposes of Applicable Accounting Standards prior to the effectiveness of ASC 842 shall continue to be accounted for as operating leases for all purposes hereunder or under any other Loan Documents (whether or not such operating lease obligations were in effect on such date) notwithstanding the fact that such obligations are required in accordance with ASC 842 (on a prospective or retroactive basis or otherwise) to be treated as Capital Leases. Capitalized terms not otherwise defined in this Agreement shall have the meanings set forth in Section 13. All other terms contained in this Agreement, unless otherwise indicated, shall have the meaning provided by the Code to the extent such terms are defined therein. All references adoption would require (x) treating any lease (or similar arrangement conveying the right to “Dollars” use) as a capital lease where such lease (or “$” are United States Dollarssimilar arrangement) would not have been required to be so treated under GAAP as in effect on December 31, unless otherwise noted. For purposes of Sections 4, 5 and 6 and solely 2015 or (y) recognizing liabilities on the balance sheet with respect to any amount of anything in a currency other than Dollars, no Default or Event of Default shall be deemed to have occurred and no action shall be required to be taken solely as a result of changes in rates of currency exchange occurring over time (so long as, at the time incurred, made, acquired or otherwise coming into existence, such thing is otherwise permitted hereunder). Notwithstanding any other term of the Loan Documents, the parties hereto agree that (i) any amendment to the Issuer’s articles of association (including the adoption of new articles of association of Issuer), (ii) any amendment to the terms, conditions or other provisions of the Existing Convertible Indebtedness other than in any manner which would contravene in any respect any of the provisions of Section 6.10(a)(iv)), or (iii) any merger, business combination, formation of a New Subsidiary or any other step, action or transaction, in each case of clause (i), (ii) or (iii) above, specifically taken, entered into or completed by any Credit Party or any of its Subsidiaries, which is required in order to implement the IPO Transaction and which does not materially adversely affect ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender operating leases under any of the Loan Documents (provided, that so long as each material portion of Collateral owned by a Credit Party remains owned by a Credit Party after completion of the IPO Transaction there shall not be deemed to have been a material adverse effect on the ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender under any of the Loan Documents), shall not constitute a Default or Event of Default hereunder or require a consent or waiver from the Collateral Agent or any Lender under the terms of the Loan Documents, and each such step, action or transaction shall be expressly permitted under the terms of the Loan Documents. The Collateral Agent does not warrant or accept responsibility for, and shall not have any liability with respect to (a) the continuation of, administration of, submission of, calculation of or any other matter related to the Term SOFR Reference Rate or Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, the Term SOFR Reference Rate, Term SOFR or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes. The Collateral Agent and its affiliates or other related entities may engage in transactions that affect the calculation of the Term SOFR Reference Rate, Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Collateral Agent may select information sources or services in its reasonable discretion to ascertain the Term SOFR Reference Rate, Term SOFR or any other Benchmark, in each case pursuant to the terms of this Agreement, and shall have no liability to Borrower, any Lender or any other Person for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or serviceFAS 842.

Appears in 1 contract

Samples: Contingent Convertible Debt Agreement (Achieve Life Sciences, Inc.)

ACCOUNTING AND OTHER TERMS. Except as otherwise expressly provided herein, all accounting terms not otherwise defined in this Agreement shall have the meanings assigned to them in conformity with Applicable Accounting Standards. Calculations and determinations must be made following Applicable Accounting Standards. If at any time any change in Applicable Accounting Standards would affect the computation of any financial requirement set forth in any Loan Document (including for purposes of measuring compliance with any provision of Section 6)Document, and either Borrower or the Collateral Agent Lender shall so request, the Collateral Agent Lender and Borrower shall negotiate in good faith to amend such requirement to preserve the original intent thereof in light of such change in Applicable Accounting Standards; provided, that, until so amended, (x) such requirement shall continue to be computed in accordance with Applicable Accounting Standards prior to such change therein and (y) therein. Without limiting the foregoing, leases shall continue to be classified on a basis consistent with that reflected in the audited consolidated financial statements of Borrower for the fiscal year ended December 31, 2017 for all financial statementspurposes of this Agreement, Compliance Certificates and similar documents provided, delivered or submitted hereunder shall be provided, delivered or submitted together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such notwithstanding any change in Applicable Accounting Standards. Notwithstanding any other provision contained hereinStandards relating thereto or the application thereof, all terms of an accounting or financial nature used herein unless the parties hereto shall be construedenter into a mutually acceptable amendment addressing such changes, and all computations of amounts referred to herein, including in Section 5 and Section 6 shall be made, without giving effect to any (a) election under ASC 825-10 (or any other Financial Accounting Standards Board Accounting Standards Codification (“ASC”) or Financial Accounting Standard or Applicable Accounting Standard (including IFRS 9) having a similar result or effect) to value any Indebtedness or other liabilities of any Credit Party or any Subsidiary of any Credit Party at “fair value” and (b) any treatment of Indebtedness in respect of convertible debt instruments under ASC 470-20 (or any other ASC or Financial Accounting Standard or Applicable Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. Notwithstanding anything to the contrary above or in the definition of “Capital Lease Obligations”, all obligations of any Person that are or would have been treated as operating leases provided for purposes of Applicable Accounting Standards prior to the effectiveness of ASC 842 shall continue to be accounted for as operating leases for all purposes hereunder or under any other Loan Documents (whether or not such operating lease obligations were in effect on such date) notwithstanding the fact that such obligations are required in accordance with ASC 842 (on a prospective or retroactive basis or otherwise) to be treated as Capital Leasesabove. Capitalized terms not otherwise defined in this Agreement shall have the meanings set forth in Section 1312. All other terms contained in this Agreement, unless otherwise indicated, shall have the meaning provided by the Code to the extent such terms are defined therein. All references to “Dollars” or “$” are United States Dollars, unless otherwise noted. For purposes of Sections 4, 5 and determining compliance with Section 6 and solely with respect to any the amount of anything any Indebtedness in a currency other than Dollars, no Default or Event of Default shall be deemed to have occurred and no action shall be required to be taken solely as a result of changes in rates of currency exchange occurring over after the time such Indebtedness is incurred, made or acquired (so long asas such Indebtedness, at the time incurred, mademade or acquired, acquired or otherwise coming into existence, such thing is otherwise was permitted hereunder). Notwithstanding any other term of the Loan Documents, the parties hereto agree that (i) any amendment to the Issuer’s articles of association (including the adoption of new articles of association of Issuer), (ii) any amendment to the terms, conditions or other provisions of the Existing Convertible Indebtedness other than in any manner which would contravene in any respect any of the provisions of Section 6.10(a)(iv)), or (iii) any merger, business combination, formation of a New Subsidiary or any other step, action or transaction, in each case of clause (i), (ii) or (iii) above, specifically taken, entered into or completed by any Credit Party or any of its Subsidiaries, which is required in order to implement the IPO Transaction and which does not materially adversely affect ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender under any of the Loan Documents (provided, that so long as each material portion of Collateral owned by a Credit Party remains owned by a Credit Party after completion of the IPO Transaction there shall not be deemed to have been a material adverse effect on the ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender under any of the Loan Documents), shall not constitute a Default or Event of Default hereunder or require a consent or waiver from the Collateral Agent or any Lender under the terms of the Loan Documents, and each such step, action or transaction shall be expressly permitted under the terms of the Loan Documents. The Collateral Agent does not warrant or accept responsibility for, and shall not have any liability with respect to (a) the continuation of, administration of, submission of, calculation of or any other matter related to the Term SOFR Reference Rate or Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, the Term SOFR Reference Rate, Term SOFR or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes. The Collateral Agent and its affiliates or other related entities may engage in transactions that affect the calculation of the Term SOFR Reference Rate, Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Collateral Agent may select information sources or services in its reasonable discretion to ascertain the Term SOFR Reference Rate, Term SOFR or any other Benchmark, in each case pursuant to the terms of this Agreement, and shall have no liability to Borrower, any Lender or any other Person for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.

Appears in 1 contract

Samples: Guaranty and Security Agreement (Amicus Therapeutics Inc)

ACCOUNTING AND OTHER TERMS. Except as otherwise expressly provided herein, all accounting terms not otherwise defined in this Agreement shall have the meanings assigned to them in conformity with Applicable Accounting Standards. Calculations and determinations must be made following Applicable Accounting Standards. If at any time any change in Applicable Accounting Standards would affect the computation of any financial requirement set forth in any Loan Document (including for purposes of measuring compliance with any provision of Section 6), and either Borrower or the Collateral Agent shall so request, the Collateral Agent and Borrower shall negotiate in good faith enter into a mutually acceptable amendment to amend such requirement to preserve the original intent thereof in light of such change in Applicable Accounting Standards; provided, that, until so amended, (x) such requirement shall continue to be computed in accordance with Applicable Accounting Standards prior to such change therein and (y) all financial statements, Compliance Certificates and similar documents provided, delivered or submitted hereunder shall be provided, delivered or submitted together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in Applicable Accounting Standards. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts referred to herein, including in Section 5 and Section 6 shall be made, without giving effect to any (a) election under ASC 825-10 (or any other Financial Accounting Standards Board Accounting Standards Codification (“ASC”) or Financial Accounting Standard or Applicable Accounting Standard (including IFRS 9) having a similar result or effect) to value any Indebtedness or other liabilities of any Credit Party or any Subsidiary of any Credit Party at “fair value” and (b) any treatment of Indebtedness in respect of convertible debt instruments under ASC 470-20 (or any other ASC or Financial Accounting Standard or Applicable Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. Notwithstanding anything to the contrary above or in the definition of “Capital Lease Obligations”, all obligations of any Person that are or would have been treated as operating leases for purposes of Applicable Accounting Standards prior to the effectiveness of ASC 842 shall continue to be accounted for as operating leases for all purposes hereunder or under any other Loan Documents (whether or not such operating lease obligations were in effect on such date) notwithstanding the fact that such obligations are required in accordance with ASC 842 (on a prospective or retroactive basis or otherwise) to be treated as Capital Leases. Capitalized terms not otherwise defined in this Agreement shall have the meanings set forth in Section 13. All other terms contained in this Agreement, unless otherwise indicated, shall have the meaning provided by the Code to the extent such terms are defined therein. All references to “Dollars” or “$” are United States Dollars, unless otherwise noted. For purposes of Sections 4, 5 and determining compliance with Section 6 and solely with respect to any the amount of anything any Indebtedness in a currency other than Dollars, no Default or Event of Default shall be deemed to have occurred and no action shall be required to be taken solely as a result of changes in rates of currency exchange occurring over after the time such Indebtedness is incurred, made or acquired (so long asas such Indebtedness, at the time incurred, mademade or acquired, acquired or otherwise coming into existence, such thing is otherwise was permitted hereunder). Notwithstanding any other term of the Loan Documents, the parties hereto agree that (i) any amendment to the Issuer’s articles of association (including the adoption of new articles of association of Issuer), (ii) any amendment to the terms, conditions or other provisions of the Existing Convertible Indebtedness other than in any manner which would contravene in any respect any of the provisions of Section 6.10(a)(iv)), or (iii) any merger, business combination, formation of a New Subsidiary or any other step, action or transaction, in each case of clause (i), (ii) or (iii) above, specifically taken, entered into or completed by any Credit Party or any of its Subsidiaries, which is required in order to implement the IPO Transaction and which does not materially adversely affect ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender under any of the Loan Documents (provided, that so long as each material portion of Collateral owned by a Credit Party remains owned by a Credit Party after completion of the IPO Transaction there shall not be deemed to have been a material adverse effect on the ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender under any of the Loan Documents), shall not constitute a Default or Event of Default hereunder or require a consent or waiver from the Collateral Agent or any Lender under the terms of the Loan Documents, and each such step, action or transaction shall be expressly permitted under the terms of the Loan Documents. The Collateral Agent does not warrant or accept responsibility for, and shall not have any liability with respect to (a) the continuation of, administration of, submission of, calculation of or any other matter related to the Term SOFR Reference Rate or Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, the Term SOFR Reference Rate, Term SOFR or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes. The Collateral Agent and its affiliates or other related entities may engage in transactions that affect the calculation of the Term SOFR Reference Rate, Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Collateral Agent may select information sources or services in its reasonable discretion to ascertain the Term SOFR Reference Rate, Term SOFR or any other Benchmark, in each case pursuant to the terms of this Agreement, and shall have no liability to Borrower, any Lender or any other Person for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.

Appears in 1 contract

Samples: Loan Agreement (Coherus BioSciences, Inc.)

ACCOUNTING AND OTHER TERMS. Except as otherwise expressly provided herein, all accounting terms not otherwise defined in this Agreement shall have the meanings assigned to them in conformity with Applicable Accounting Standards. Calculations and determinations must be made following Applicable Accounting Standards. If at any time any change in Applicable Accounting Standards would affect the computation of any financial requirement set forth in any Loan Document (including for purposes of measuring compliance with any provision of Section 6)Document, and either Borrower or the Collateral Agent Blackstone Representative shall so request, the Collateral Agent Blackstone Representative and Borrower shall negotiate in good faith to amend such requirement to preserve the original intent thereof in light of such change in Applicable Accounting Standards; provided, that, until so amended, (x) such requirement shall continue to be computed in accordance with Applicable Accounting Standards prior to such change therein and (y) all financial statements, Compliance Certificates and similar documents provided, delivered or submitted hereunder shall be provided, delivered or submitted together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in Applicable Accounting Standards. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts referred to herein, including in Section 5 and Section 6 shall be made, without giving effect to any (a) election under ASC 825-10 (or any other Financial Accounting Standards Board Accounting Standards Codification (“ASC”) or Financial Accounting Standard or Applicable Accounting Standard (including IFRS 9) having a similar result or effect) to value any Indebtedness or other liabilities of any Credit Party or any Subsidiary of any Credit Party at “fair value” and (b) any treatment of Indebtedness in respect of convertible debt instruments under ASC 470-20 (or any other ASC or Financial Accounting Standard or Applicable Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. Notwithstanding anything to the contrary above or in the definition of “Capital Lease Obligations”, all obligations of any Person that are or would have been treated as operating leases for purposes of Applicable Accounting Standards prior to the effectiveness of ASC 842 shall continue to be accounted for as operating leases for all purposes hereunder or under any other Loan Documents (whether or not such operating lease obligations were in effect on such date) notwithstanding the fact that such obligations are required in accordance with ASC 842 (on a prospective or retroactive basis or otherwise) to be treated as Capital Leases. Capitalized terms not otherwise defined in this Agreement shall have the meanings set forth in Section 1314. All other terms contained in this Agreement, unless otherwise indicated, shall have the meaning provided by the Code to the extent such terms are defined therein. All references to “Dollars” or “$” are United States Dollars, unless otherwise noted, and all payments made by the Credit Parties to the Agent or the Lenders with respect to the Obligations shall be in Dollars. For purposes of Sections 4, 5 and determining compliance with Section 6 and solely with respect to any the amount of anything any Indebtedness in a currency other than Dollars, no Default or Event of Default shall be deemed to have occurred and no action shall be required to be taken solely as a result of changes in rates of currency exchange occurring over after the time such Indebtedness is incurred, made or acquired (so long asas such Indebtedness, at the time incurred, mademade or acquired, acquired or otherwise coming into existence, such thing is otherwise was permitted hereunder). Notwithstanding any other term of the Loan Documents, the parties hereto agree that (i) any amendment to the Issuer’s articles of association (including the adoption of new articles of association of Issuer), (ii) any amendment to the terms, conditions or other provisions of the Existing Convertible Indebtedness other than in any manner which would contravene in any respect any of the provisions of Section 6.10(a)(iv)), or (iii) any merger, business combination, formation of a New Subsidiary or any other step, action or transaction, in each case of clause (i), (ii) or (iii) above, specifically taken, entered into or completed by any Credit Party or any of its Subsidiaries, which is required in order to implement the IPO Transaction and which does not materially adversely affect ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender under any of the Loan Documents (provided, that so long as each material portion of Collateral owned by a Credit Party remains owned by a Credit Party after completion of the IPO Transaction there shall not be deemed to have been a material adverse effect on the ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender under any of the Loan Documents), shall not constitute a Default or Event of Default hereunder or require a consent or waiver from the Collateral Agent or any Lender under the terms of the Loan Documents, and each such step, action or transaction shall be expressly permitted under the terms of the Loan Documents. The Collateral Agent does not warrant or accept responsibility for, and shall not have any liability with respect to (a) the continuation of, administration of, submission of, calculation of or any other matter related to the Base Rate, the Term SOFR Reference Rate Rate, Adjusted Term SOFR or Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, Base Txxx, the Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes. The Collateral Agent and its affiliates or other related entities may engage in transactions that affect the calculation of the Base Rate, the Term SOFR Reference Rate, Term SOFR, Adjusted Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Collateral Agent may select information sources or services in its reasonable discretion to ascertain the Base Rate, the Term SOFR Reference Rate, Term SOFR, Adjusted Term SOFR or any other Benchmark, in each case pursuant to the terms of this Agreement, and shall have no liability to Borrower, any Lender or any other Person person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service. For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws), including a statutory division pursuant to Section 18-217 of the Delaware Limited Liability Company Act: (a) if any asset or property of any Person becomes the asset or property of one or more different Persons, then such asset or property shall be deemed to have been disposed of from the original Person to the subsequent Person(s) on the date such division becomes effective, (b) if any obligation or liability of any Person becomes the obligation or liability of one or more different Person(s), then the original Person shall be deemed to have been automatically released from such obligation or liability and such obligation or liability shall be deemed to have been assumed by the subsequent Person(s), in each case, on the date such division becomes effective and (c) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its Equity Interests on the date such division becomes effective.

Appears in 1 contract

Samples: Loan Agreement (Amicus Therapeutics, Inc.)

ACCOUNTING AND OTHER TERMS. (a) Except as otherwise expressly provided herein, all accounting terms not otherwise defined in this Agreement herein shall have the meanings assigned to them in conformity with Applicable Accounting StandardsGAAP. Calculations Financial statements and determinations must other information required to be made following Applicable Accounting Standardsdelivered by Company to Investor pursuant to Section 5.1(a) and Section 5.1(b) shall be prepared in accordance with GAAP as in effect at the time of such preparation. If at Subject to the foregoing, calculations in connection with the definitions, covenants and other provisions hereof shall utilize accounting principles and policies in conformity with those used to prepare the Historical Financial Statements. Notwithstanding the foregoing, for purposes of determining compliance with any time any change in Applicable Accounting Standards would affect covenant (including the computation of any financial requirement set forth in any Loan Document (including for purposes covenant) contained herein, Indebtedness of measuring compliance with any provision Company and its Subsidiaries shall be deemed to be carried at 100% of Section 6)the outstanding principal amount thereof, and either Borrower or the Collateral Agent shall so request, the Collateral Agent effects of FASB ASC 825 and Borrower shall negotiate in good faith to amend such requirement to preserve the original intent thereof in light of such change in Applicable Accounting Standards; provided, that, until so amended, (x) such requirement shall continue to be computed in accordance with Applicable Accounting Standards prior to such change therein and (y) all FASB ASC 470 20 on financial statements, Compliance Certificates and similar documents provided, delivered or submitted hereunder liabilities shall be provided, delivered or submitted together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in Applicable Accounting Standardsdisregarded. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts referred to herein, including in Section 5 and Section 6 herein shall be made, without giving effect to any (a) election under ASC 825-10 (or any other change to GAAP occurring after the Closing Date as a result of the adoption of Financial Accounting Standards Board Accounting Standards Codification 842 (“ASC”) or Financial any other Accounting Standard or Applicable Accounting Standard (including IFRS 9) Standards Codification having a similar result or effect) to value any Indebtedness or other liabilities of any Credit Party effect and related interpretations), or any Subsidiary of other proposals issued by the Financial Accounting Standards Board in connection therewith, in each case if such change would require treating any Credit Party at “fair value” and lease (bor similar arrangement conveying the right to use) any treatment of Indebtedness as a Capital Lease where such lease (or similar arrangement) would not have been required to be so treated under GAAP as in effect on the Closing Date; it being further agreed that all liabilities under or in respect of convertible debt instruments any lease (whether now outstanding or at any time hereafter entered into or incurred) that, under ASC 470-20 (or any other ASC or Financial Accounting Standard or Applicable Accounting Standard having GAAP as in effect on the Closing Date, would be accrued as an operating lease expense and would not constitute a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. Notwithstanding anything to the contrary above or in the definition of “Capital Lease Obligations”, all obligations of any Person that are or would have been treated as operating leases for purposes of Applicable Accounting Standards prior to the effectiveness of ASC 842 shall continue to be accounted for treated as operating leases for all purposes hereunder or under any other Loan Documents (whether or not such operating lease obligations were expense in accordance with GAAP as in effect on such date) notwithstanding the fact that such obligations are required in accordance with ASC 842 (on a prospective or retroactive basis or otherwise) to be treated as Capital Leases. Capitalized terms not otherwise defined in this Agreement shall have the meanings set forth in Section 13. All other terms contained in this Agreement, unless otherwise indicated, shall have the meaning provided by the Code to the extent such terms are defined therein. All references to “Dollars” or “$” are United States Dollars, unless otherwise noted. For purposes of Sections 4, 5 Closing Date and 6 and solely with respect to any amount of anything in a currency other than Dollars, no Default or Event of Default shall be deemed to have occurred and no action shall be required to be taken solely as a result of changes in rates of currency exchange occurring over time (so long as, at the time incurred, made, acquired or otherwise coming into existence, such thing is otherwise permitted hereunder). Notwithstanding any other term of the Loan Documents, the parties hereto agree that (i) any amendment to the Issuer’s articles of association (including the adoption of new articles of association of Issuer), (ii) any amendment to the terms, conditions or other provisions of the Existing Convertible Indebtedness other than in any manner which would contravene in any respect any of the provisions of Section 6.10(a)(iv)), or (iii) any merger, business combination, formation of a New Subsidiary or any other step, action or transaction, in each case of clause (i), (ii) or (iii) above, specifically taken, entered into or completed by any Credit Party or any of its Subsidiaries, which is required in order to implement the IPO Transaction and which does not materially adversely affect ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender under any of the Loan Documents (provided, that so long as each material portion of Collateral owned by a Credit Party remains owned by a Credit Party after completion of the IPO Transaction there shall not be deemed to have been a material adverse effect on the ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender under any of the Loan Documents), shall not constitute a Default or Event of Default hereunder or require a consent or waiver from the Collateral Agent or any Lender under the terms of the Loan Documents, and each such step, action or transaction shall be expressly permitted under the terms of the Loan Documents. The Collateral Agent does not warrant or accept responsibility for, and shall not have any liability with respect to (a) the continuation of, administration of, submission of, calculation of or any other matter related to the Term SOFR Reference Rate or Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, the Term SOFR Reference Rate, Term SOFR or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes. The Collateral Agent and its affiliates or other related entities may engage in transactions that affect the calculation of the Term SOFR Reference Rate, Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Collateral Agent may select information sources or services in its reasonable discretion to ascertain the Term SOFR Reference Rate, Term SOFR or any other Benchmark, in each case pursuant to the terms of this Agreement, and shall have no liability to Borrower, any Lender or any other Person for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or serviceCapital Lease.

Appears in 1 contract

Samples: Senior Secured Note Purchase Agreement (Golden Arrow Merger Corp.)

ACCOUNTING AND OTHER TERMS. Except as otherwise expressly provided herein, all accounting terms not otherwise defined in this Agreement shall have the meanings assigned to them in conformity with Applicable Accounting Standards. Calculations and determinations must be made following Applicable Accounting Standards. If at any time any change in Applicable Accounting Standards would affect the computation of any financial requirement set forth in any Loan Document (including for purposes of measuring compliance with any provision of Section 6)Document, and either Borrower or the Collateral Agent shall so request, the Collateral Agent and Borrower shall negotiate in good faith to amend such requirement to preserve the original intent thereof in light of such change in Applicable Accounting Standards; provided, that, until so amended, (x) such requirement shall continue to be computed in accordance with Applicable Accounting Standards prior to such change therein and (y) all financial statementstherein. Without limiting the foregoing, Compliance Certificates and similar documents provided, delivered or submitted hereunder leases shall be provided, delivered or submitted together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in Applicable Accounting Standards. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts referred to herein, including in Section 5 and Section 6 shall be made, without giving effect to any (a) election under ASC 825-10 (or any other Financial Accounting Standards Board Accounting Standards Codification (“ASC”) or Financial Accounting Standard or Applicable Accounting Standard (including IFRS 9) having a similar result or effect) to value any Indebtedness or other liabilities of any Credit Party or any Subsidiary of any Credit Party at “fair value” and (b) any treatment of Indebtedness in respect of convertible debt instruments under ASC 470-20 (or any other ASC or Financial Accounting Standard or Applicable Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. Notwithstanding anything to the contrary above or in the definition of “Capital Lease Obligations”, all obligations of any Person that are or would have been treated as operating leases for purposes of Applicable Accounting Standards prior to the effectiveness of ASC 842 shall continue to be accounted for as operating leases for all purposes hereunder or under any other Loan Documents (whether or not such operating lease obligations were in effect on such date) notwithstanding the fact that such obligations are required in accordance with ASC 842 (classified on a prospective or retroactive basis or otherwise) to be treated consistent with [**], unless Borrower and the Collateral Agent shall enter into a mutually acceptable amendment addressing such changes, as Capital Leasesprovided for above. Capitalized terms not otherwise defined in this Agreement shall have the meanings set forth in Section 13. All other terms contained in this Agreement, unless otherwise indicated, shall have the meaning provided by the Code to the extent such terms are defined therein. All references to “Dollars” or “$” are United States Dollars, unless otherwise noted. Notwithstanding anything to the contrary in this Agreement or any other Loan Document, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made without giving effect to any treatment of [**] to value any such [**] in a reduced or bifurcated manner as described therein, and such [**] shall at all times be valued at [**]. For the avoidance of doubt, and without limitation of the foregoing, [**] shall at all times be valued at [**] and shall not include [**]. For purposes of Sections 4, 5 and determining compliance with Section 6 and solely with respect to any the amount of anything any Indebtedness in a currency other than Dollars, no Default or Event of Default shall be deemed to have occurred and no action shall be required to be taken solely as a result of changes in rates of currency exchange occurring over after the time such Indebtedness is incurred, made or acquired (so long asas such Indebtedness, at the time incurred, mademade or acquired, acquired or otherwise coming into existence, such thing is otherwise was permitted hereunder). Notwithstanding any other term of the Loan Documents, the parties hereto agree that (i) any amendment to the Issuer’s articles of association (including the adoption of new articles of association of Issuer), (ii) any amendment to the terms, conditions or other provisions of the Existing Convertible Indebtedness other than in any manner which would contravene in any respect any of the provisions of Section 6.10(a)(iv)), or (iii) any merger, business combination, formation of a New Subsidiary or any other step, action or transaction, in each case of clause (i), (ii) or (iii) above, specifically taken, entered into or completed by any Credit Party or any of its Subsidiaries, which is required in order to implement the IPO Transaction and which does not materially adversely affect ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender under any of the Loan Documents (provided, that so long as each material portion of Collateral owned by a Credit Party remains owned by a Credit Party after completion of the IPO Transaction there shall not be deemed to have been a material adverse effect on the ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender under any of the Loan Documents), shall not constitute a Default or Event of Default hereunder or require a consent or waiver from the Collateral Agent or any Lender under the terms of the Loan Documents, and each such step, action or transaction shall be expressly permitted under the terms of the Loan Documents. The Collateral Agent does not warrant or accept responsibility for, and shall not have any liability with respect to (a) the continuation of, administration of, submission of, calculation of or any other matter related to the Term SOFR Reference Rate or Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, the Term SOFR Reference Rate, Term SOFR or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes. The Collateral Agent and its affiliates or other related entities may engage in transactions that affect the calculation of the Term SOFR Reference Rate, Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Collateral Agent may select information sources or services in its reasonable discretion to ascertain the Term SOFR Reference Rate, Term SOFR or any other Benchmark, in each case pursuant to the terms of this Agreement, and shall have no liability to Borrower, any Lender or any other Person for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.

Appears in 1 contract

Samples: Loan Agreement (Akebia Therapeutics, Inc.)

ACCOUNTING AND OTHER TERMS. Except as otherwise expressly provided herein, all accounting terms not otherwise defined in this Agreement shall have the meanings assigned to them in conformity with Applicable Accounting StandardsGAAP. Calculations and determinations must be made following Applicable Accounting StandardsGAAP. If at any time any change in Applicable Accounting Standards GAAP would affect the computation of any financial requirement set forth in any Loan Document (including for purposes of measuring compliance with any provision of Section 6), and either Borrower or the Collateral Agent shall so request, the Collateral Agent and Borrower shall negotiate in good faith to amend such requirement to preserve the original intent thereof in light of such change in Applicable Accounting StandardsGAAP; provided, that, until so amended, (x) such requirement shall continue to be computed in accordance with Applicable Accounting Standards GAAP prior to such change therein and (y) all financial statements, Compliance Certificates and similar documents provided, delivered or submitted hereunder shall be provided, delivered or submitted together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in Applicable Accounting StandardsGAAP. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts referred to herein, including in Section 5 and Section 6 shall be made, without giving effect to any (a) election under ASC 825-10 (or any other Financial Accounting Standards Board Accounting Standards Codification (“ASC”) or Financial Accounting Standard or Applicable Accounting Standard (including IFRS 9) having a similar result or effect) to value any Indebtedness or other liabilities of any Credit Party or any Subsidiary of any Credit Party at “fair value” and (b) any treatment of Indebtedness in respect of convertible debt instruments under ASC 470-20 (or any other ASC or Financial Accounting Standard or Applicable Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. Notwithstanding anything to the contrary above or in the definition of “Capital Lease Obligations”, all obligations of any Person that are or would have been treated as operating leases for purposes of Applicable Accounting Standards GAAP prior to the effectiveness of ASC 842 shall continue to be accounted for as operating leases for all purposes hereunder or under any other Loan Documents (whether or not such operating lease obligations were in effect on such date) notwithstanding the fact that such obligations are required in accordance with ASC 842 (on a prospective or retroactive basis or otherwise) to be treated as Capital Leases. Capitalized terms not otherwise defined in this Agreement shall have the meanings set forth in Section 13. All other terms contained in this Agreement, unless otherwise indicated, shall have the meaning provided by the Code to the extent such terms are defined therein. All references to “Dollars” or “$” are United States Dollars, unless otherwise noted. For purposes of Sections 4, 5 and 6 and solely with respect to any amount of anything in a currency other than Dollars, no Default or Event of Default shall be deemed to have occurred and no action shall be required to be taken solely as a result of changes in rates of currency exchange occurring over time (so long as, at the time incurred, made, acquired or otherwise coming into existence, such thing is otherwise permitted hereunder). Notwithstanding any other term of the Loan Documents, the parties hereto agree that (i) any amendment to the Issuer’s articles of association (including the adoption of new articles of association of Issuer), (ii) any amendment to the terms, conditions or other provisions of the Existing Convertible Indebtedness other than in any manner which would contravene in any respect any of the provisions of Section 6.10(a)(iv)), or (iii) any merger, business combination, formation of a New Subsidiary or any other step, action or transaction, in each case of clause (i), (ii) or (iii) above, specifically taken, entered into or completed by any Credit Party or any of its Subsidiaries, which is required in order to implement the IPO Transaction and which does not materially adversely affect ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender under any of the Loan Documents (provided, that so long as each material portion of Collateral owned by a Credit Party remains owned by a Credit Party after completion of the IPO Transaction there shall not be deemed to have been a material adverse effect on the ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender under any of the Loan Documents), shall not constitute a Default or Event of Default hereunder or require a consent or waiver from the Collateral Agent or any Lender under the terms of the Loan Documents, and each such step, action or transaction shall be expressly permitted under the terms of the Loan Documents. The Collateral Agent does not warrant or accept responsibility for, and shall not have any liability with respect to (a) the continuation of, administration of, submission of, calculation of or any other matter related to the Term SOFR Reference Rate or Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, the Term SOFR Reference Rate, Term SOFR or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes. The Collateral Agent and its affiliates or other related entities may engage in transactions that affect the calculation of the Term SOFR Reference Rate, Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Collateral Agent may select information sources or services in its reasonable discretion to ascertain the Term SOFR Reference Rate, Term SOFR or any other Benchmark, in each case pursuant to the terms of this Agreement, and shall have no liability to Borrower, any Lender or any other Person for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.

Appears in 1 contract

Samples: Loan Agreement (Reata Pharmaceuticals Inc)

ACCOUNTING AND OTHER TERMS. 1.1 Except as specifically provided otherwise expressly provided hereinin this Agreement, all accounting terms used herein that are not otherwise specifically defined in this Agreement shall have the meanings assigned to given them in conformity accordance with Applicable Accounting Standards. Calculations and determinations must be made following Applicable Accounting Standards. If at any GAAP as in effect from time any change in Applicable Accounting Standards would affect the computation of any financial requirement set forth in any Loan Document (including for purposes of measuring compliance with any provision of Section 6)to time, and either Borrower or the Collateral Agent shall so request, the provided that if Issuer notifies Collateral Agent and Borrower shall negotiate the Purchasers that Issuer requests an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof in good faith to amend GAAP or in the application thereof on the operation of such requirement to preserve the original intent thereof in light provision, regardless of whether any such notice is given before or after such change in Applicable Accounting StandardsGAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith; provided, thatfurther, until so amended, (x) such requirement shall continue to be computed in accordance with Applicable Accounting Standards prior to such change therein and (y) all financial statements, Compliance Certificates and similar documents provided, delivered or submitted hereunder shall be provided, delivered or submitted together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in Applicable Accounting Standards. Notwithstanding any other provision contained herein, that all terms of an accounting or financial nature used herein (including the definitions of Capital Lease Obligations and Indebtedness) shall be construed, and all computations of amounts referred to herein, including in Section 5 and Section 6 shall be made, construed without giving effect to (i) any changes to the current GAAP accounting model for leases of the type described in the FASB and IASB joint exposure draft published on August 17, 2010 entitled “Leases (aTopic 840)” or otherwise arising out of the FASB project on lease accounting described in such exposure draft, (ii) any election under ASC 825Accounting Standards Codification 000-10 00-00 (previously referred to as Statement of Financial Accounting Standards 159) (or any other Financial Accounting Standards Board Accounting Standards Codification (“ASC”) or Financial Accounting Standard or Applicable Accounting Standard (including IFRS 9) having a similar result or effect) to value any Indebtedness or other liabilities of any Credit Party Issuer or any Subsidiary of any Credit Party at “fair value,as defined therein and (biii) any treatment of Indebtedness in respect of convertible debt instruments under ASC Accounting Standards Codification 470-20 (or any other ASC Accounting Standards Codification or Financial Accounting Standard or Applicable Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. Notwithstanding anything to the contrary above or in the definition of “Capital Lease Obligations”, all obligations of any Person that are or would have been treated as operating leases for purposes of Applicable Accounting Standards prior to the effectiveness of ASC 842 shall continue to be accounted for as operating leases for all purposes hereunder or under any other Loan Documents (whether or not such operating lease obligations were in effect on such date) notwithstanding the fact that such obligations are required in accordance with ASC 842 (on a prospective or retroactive basis or otherwise) to be treated as Capital Leases. Capitalized terms not otherwise defined in this Agreement shall have the meanings set forth in Section 13. All other terms contained in this Agreement, unless otherwise indicated, shall have the meaning provided by the Code to the extent such terms are defined therein. All references to “Dollars” or “$” are United States Dollars, unless otherwise noted. For purposes of Sections 4, 5 and 6 and solely with respect to any amount of anything in a currency other than Dollars, no Default or Event of Default shall be deemed to have occurred and no action shall be required to be taken solely as a result of changes in rates of currency exchange occurring over time (so long as, at the time incurred, made, acquired or otherwise coming into existence, such thing is otherwise permitted hereunder). Notwithstanding any other term of the Loan Documents, the parties hereto agree that (i) any amendment to the Issuer’s articles of association (including the adoption of new articles of association of Issuer), (ii) any amendment to the terms, conditions or other provisions of the Existing Convertible Indebtedness other than in any manner which would contravene in any respect any of the provisions of Section 6.10(a)(iv)), or (iii) any merger, business combination, formation of a New Subsidiary or any other step, action or transaction, in each case of clause (i), (ii) or (iii) above, specifically taken, entered into or completed by any Credit Party or any of its Subsidiaries, which is required in order to implement the IPO Transaction and which does not materially adversely affect ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender under any of the Loan Documents (provided, that so long as each material portion of Collateral owned by a Credit Party remains owned by a Credit Party after completion of the IPO Transaction there shall not be deemed to have been a material adverse effect on the ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender under any of the Loan Documents), shall not constitute a Default or Event of Default hereunder or require a consent or waiver from the Collateral Agent or any Lender under the terms of the Loan Documents, and each such step, action or transaction shall be expressly permitted under the terms of the Loan Documents. The Collateral Agent does not warrant or accept responsibility for, and shall not have any liability with respect to (a) the continuation of, administration of, submission of, calculation of or any other matter related to the Term SOFR Reference Rate or Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, the Term SOFR Reference Rate, Term SOFR or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes. The Collateral Agent and its affiliates or other related entities may engage in transactions that affect the calculation of the Term SOFR Reference Rate, Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Collateral Agent may select information sources or services in its reasonable discretion to ascertain the Term SOFR Reference Rate, Term SOFR or any other Benchmark, in each case pursuant to the terms of this Agreement, and shall have no liability to Borrower, any Lender or any other Person for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.

Appears in 1 contract

Samples: Note Purchase Agreement (Invitae Corp)

ACCOUNTING AND OTHER TERMS. (a) Except as otherwise expressly provided herein, all accounting terms not otherwise defined in this Agreement herein shall have the meanings assigned to them in conformity with Applicable Accounting StandardsGAAP. Calculations Financial statements and determinations must other information required to be made following Applicable Accounting Standardsdelivered by Company to Investors pursuant to Section 5.1(a) and Section 5.1(b) shall be prepared in accordance with GAAP as in effect at the time of such preparation. If at Subject to the foregoing, calculations in connection with the definitions, covenants and other provisions hereof shall utilize accounting principles and policies in conformity with those used to prepare the Historical Financial Statements. Notwithstanding the foregoing, for purposes of determining compliance with any time any change in Applicable Accounting Standards would affect covenant (including the computation of any financial requirement set forth in any Loan Document (including for purposes covenant) contained herein, Indebtedness of measuring compliance with any provision Company and its Subsidiaries shall be deemed to be carried at 100% of Section 6)the outstanding principal amount thereof, and either Borrower or the Collateral Agent shall so request, the Collateral Agent effects of FASB ASC 825 and Borrower shall negotiate in good faith to amend such requirement to preserve the original intent thereof in light of such change in Applicable Accounting Standards; provided, that, until so amended, (x) such requirement shall continue to be computed in accordance with Applicable Accounting Standards prior to such change therein and (y) all FASB ASC 470 20 on financial statements, Compliance Certificates and similar documents provided, delivered or submitted hereunder liabilities shall be provided, delivered or submitted together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in Applicable Accounting Standardsdisregarded. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts referred to herein, including in Section 5 and Section 6 herein shall be made, without giving effect to any (a) election under ASC 825-10 (or any other change to GAAP occurring after the Closing Date as a result of the adoption of Financial Accounting Standards Board Accounting Standards Codification 842 (“ASC”) or Financial any other Accounting Standard or Applicable Accounting Standard (including IFRS 9) Standards Codification having a similar result or effect) to value any Indebtedness or other liabilities of any Credit Party effect and related interpretations), or any Subsidiary of other proposals issued by the Financial Accounting Standards Board in connection therewith, in each case if such change would require treating any Credit Party at “fair value” and lease (bor similar arrangement conveying the right to use) any treatment of Indebtedness as a Capital Lease where such lease (or similar arrangement) would not have been required to be so treated under GAAP as in effect on the Closing Date; it being further agreed that all liabilities under or in respect of convertible debt instruments any lease (whether now outstanding or at any time hereafter entered into or incurred) that, under ASC 470-20 (or any other ASC or Financial Accounting Standard or Applicable Accounting Standard having GAAP as in effect on the Closing Date, would be accrued as an operating lease expense and would not constitute a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. Notwithstanding anything to the contrary above or in the definition of “Capital Lease Obligations”, all obligations of any Person that are or would have been treated as operating leases for purposes of Applicable Accounting Standards prior to the effectiveness of ASC 842 shall continue to be accounted for treated as operating leases for all purposes hereunder or under any other Loan Documents (whether or not such operating lease obligations were expense in accordance with GAAP as in effect on such date) notwithstanding the fact that such obligations are required in accordance with ASC 842 (on a prospective or retroactive basis or otherwise) to be treated as Capital Leases. Capitalized terms not otherwise defined in this Agreement shall have the meanings set forth in Section 13. All other terms contained in this Agreement, unless otherwise indicated, shall have the meaning provided by the Code to the extent such terms are defined therein. All references to “Dollars” or “$” are United States Dollars, unless otherwise noted. For purposes of Sections 4, 5 Closing Date and 6 and solely with respect to any amount of anything in a currency other than Dollars, no Default or Event of Default shall be deemed to have occurred and no action shall be required to be taken solely as a result of changes in rates of currency exchange occurring over time (so long as, at the time incurred, made, acquired or otherwise coming into existence, such thing is otherwise permitted hereunder). Notwithstanding any other term of the Loan Documents, the parties hereto agree that (i) any amendment to the Issuer’s articles of association (including the adoption of new articles of association of Issuer), (ii) any amendment to the terms, conditions or other provisions of the Existing Convertible Indebtedness other than in any manner which would contravene in any respect any of the provisions of Section 6.10(a)(iv)), or (iii) any merger, business combination, formation of a New Subsidiary or any other step, action or transaction, in each case of clause (i), (ii) or (iii) above, specifically taken, entered into or completed by any Credit Party or any of its Subsidiaries, which is required in order to implement the IPO Transaction and which does not materially adversely affect ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender under any of the Loan Documents (provided, that so long as each material portion of Collateral owned by a Credit Party remains owned by a Credit Party after completion of the IPO Transaction there shall not be deemed to have been a material adverse effect on the ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender under any of the Loan Documents), shall not constitute a Default or Event of Default hereunder or require a consent or waiver from the Collateral Agent or any Lender under the terms of the Loan Documents, and each such step, action or transaction shall be expressly permitted under the terms of the Loan Documents. The Collateral Agent does not warrant or accept responsibility for, and shall not have any liability with respect to (a) the continuation of, administration of, submission of, calculation of or any other matter related to the Term SOFR Reference Rate or Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, the Term SOFR Reference Rate, Term SOFR or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes. The Collateral Agent and its affiliates or other related entities may engage in transactions that affect the calculation of the Term SOFR Reference Rate, Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Collateral Agent may select information sources or services in its reasonable discretion to ascertain the Term SOFR Reference Rate, Term SOFR or any other Benchmark, in each case pursuant to the terms of this Agreement, and shall have no liability to Borrower, any Lender or any other Person for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or serviceCapital Lease.

Appears in 1 contract

Samples: Loan and Security Agreement (Outbrain Inc.)

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ACCOUNTING AND OTHER TERMS. Except as otherwise expressly provided herein, all accounting terms not otherwise defined in this Agreement shall have the meanings assigned to them in conformity with Applicable Accounting Standards. Calculations and determinations must be made following Applicable Accounting Standards. If at any time any change in Applicable Accounting Standards would affect the computation of any financial requirement set forth in any Loan Document (including for purposes of measuring compliance with any provision of Section 6)Document, and either Borrower or the Collateral Agent shall so request, the Collateral Agent Agent, the Required Lenders and Borrower shall negotiate in good faith to amend such requirement to preserve the original intent thereof in light of such change in Applicable Accounting Standards; provided, that, until so amended, (x) such requirement shall continue to be computed in accordance with Applicable Accounting Standards prior to such change therein therein. Without limiting the foregoing, leases shall continue to be classified and (y) accounted for on a basis consistent with that reflected in the audited consolidated financial statements of Borrower for the fiscal year ended December 31, 2016 for all financial statementspurposes of this Agreement, Compliance Certificates and similar documents provided, delivered or submitted hereunder shall be provided, delivered or submitted together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such notwithstanding any change in Applicable Accounting Standards. Notwithstanding any other provision contained hereinStandards relating thereto or the application thereof, all terms of an accounting or financial nature used herein unless the parties hereto shall be construedenter into a mutually acceptable amendment addressing such changes, and all computations of amounts referred to herein, including in Section 5 and Section 6 shall be made, without giving effect to any (a) election under ASC 825-10 (or any other Financial Accounting Standards Board Accounting Standards Codification (“ASC”) or Financial Accounting Standard or Applicable Accounting Standard (including IFRS 9) having a similar result or effect) to value any Indebtedness or other liabilities of any Credit Party or any Subsidiary of any Credit Party at “fair value” and (b) any treatment of Indebtedness in respect of convertible debt instruments under ASC 470-20 (or any other ASC or Financial Accounting Standard or Applicable Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. Notwithstanding anything to the contrary above or in the definition of “Capital Lease Obligations”, all obligations of any Person that are or would have been treated as operating leases provided for purposes of Applicable Accounting Standards prior to the effectiveness of ASC 842 shall continue to be accounted for as operating leases for all purposes hereunder or under any other Loan Documents (whether or not such operating lease obligations were in effect on such date) notwithstanding the fact that such obligations are required in accordance with ASC 842 (on a prospective or retroactive basis or otherwise) to be treated as Capital Leasesabove. Capitalized terms not otherwise defined in this Agreement shall have the meanings set forth in Section 13. All other terms contained in this Agreement, unless otherwise indicated, shall have the meaning provided by the Code to the extent such terms are defined therein. All references to “Dollars” or “$” are United States Dollars, unless otherwise noted. For purposes of Sections 4, 5 and determining compliance with Section 6 and solely with respect to any the amount of anything any Indebtedness in a currency other than Dollars, no Default or Event of Default shall be deemed to have occurred and no action shall be required to be taken solely as a result of changes in rates of currency exchange occurring over after the time such Indebtedness is incurred, made or acquired (so long asas such Indebtedness, at the time incurred, mademade or acquired, acquired or otherwise coming into existence, such thing is otherwise was permitted hereunder). Notwithstanding any other term of the Loan Documents, the parties hereto agree that (i) any amendment to the Issuer’s articles of association (including the adoption of new articles of association of Issuer), (ii) any amendment to the terms, conditions or other provisions of the Existing Convertible Indebtedness other than in any manner which would contravene in any respect any of the provisions of Section 6.10(a)(iv)), or (iii) any merger, business combination, formation of a New Subsidiary or any other step, action or transaction, in each case of clause (i), (ii) or (iii) above, specifically taken, entered into or completed by any Credit Party or any of its Subsidiaries, which is required in order to implement the IPO Transaction and which does not materially adversely affect ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender under any of the Loan Documents (provided, that so long as each material portion of Collateral owned by a Credit Party remains owned by a Credit Party after completion of the IPO Transaction there shall not be deemed to have been a material adverse effect on the ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender under any of the Loan Documents), shall not constitute a Default or Event of Default hereunder or require a consent or waiver from the Collateral Agent or any Lender under the terms of the Loan Documents, and each such step, action or transaction shall be expressly permitted under the terms of the Loan Documents. The Collateral Agent does not warrant or accept responsibility for, and shall not have any liability with respect to (a) the continuation of, administration of, submission of, calculation of or any other matter related to the Term SOFR Reference Rate or Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, the Term SOFR Reference Rate, Term SOFR or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes. The Collateral Agent and its affiliates or other related entities may engage in transactions that affect the calculation of the Term SOFR Reference Rate, Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Collateral Agent may select information sources or services in its reasonable discretion to ascertain the Term SOFR Reference Rate, Term SOFR or any other Benchmark, in each case pursuant to the terms of this Agreement, and shall have no liability to Borrower, any Lender or any other Person for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.

Appears in 1 contract

Samples: Loan Agreement (TESARO, Inc.)

ACCOUNTING AND OTHER TERMS. Except as otherwise expressly provided herein, all accounting terms not otherwise defined in this Agreement shall have the meanings assigned to them in conformity with Applicable Accounting Standards. Calculations and determinations must be made following Applicable Accounting Standards. If at any time any change in Applicable Accounting Standards would affect the computation of any financial requirement set forth in any Loan Document (including for purposes of measuring compliance with any provision of Section 6), and either Borrower or the Collateral Agent shall so request, the Collateral Agent and Borrower shall negotiate in good faith to amend such requirement to preserve the original intent thereof in light of such change in Applicable Accounting Standards; provided, that, until so amended, (x) such requirement shall continue to be computed in accordance with Applicable Accounting Standards prior to such change therein and (y) all financial statements, Compliance Certificates and similar documents provided, delivered or submitted hereunder shall be provided, delivered or submitted together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in Applicable Accounting Standards. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts referred to herein, including in Section 5 and Section 6 shall be made, without giving effect to any (a) election under ASC 825-10 (or any other Financial Accounting Standards Board Accounting Standards Codification (“ASC”) or Financial Accounting Standard or Applicable Accounting Standard (including IFRS 9) having a similar result or effect) to value any Indebtedness or other liabilities of any Credit Party or any Subsidiary of any Credit Party at “fair value” and (b) any treatment of Indebtedness in respect of convertible debt instruments under ASC 470-20 (or any other ASC or Financial Accounting Standard or Applicable Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. Notwithstanding anything to the contrary above or in the definition of “Capital Lease Obligations”, all obligations of any Person that are or would have been treated as operating leases for purposes of Applicable Accounting Standards prior to the effectiveness of ASC 842 shall continue to be accounted for as operating leases for all purposes hereunder or under any other Loan Documents (whether or not such operating lease obligations were in effect on such date) notwithstanding the fact that such obligations are required in accordance with ASC 842 (on a prospective or retroactive basis or otherwise) to be treated as Capital Leases. Capitalized terms not otherwise defined in this Agreement shall have the meanings set forth in Section 13. All other terms contained in this Agreement, unless otherwise indicated, shall have the meaning provided by the Code to the extent such terms are defined therein. All references to “Dollars” or “$” are United States Dollars, unless otherwise noted. For purposes of Sections 4, determining compliance with Section 5 and Section 6 and solely with respect to any the amount of anything any Indebtedness, Investment or other transaction in a currency other than Dollars, no Default or Event of Default shall be deemed to have occurred and no action shall be required to be taken solely as a result of changes in rates of currency exchange occurring over after the time such Indebtedness, Investment or other transaction is incurred, made or acquired (so long asas such transaction, at the time incurred, mademade or acquired, acquired or otherwise coming into existence, such thing is otherwise was permitted hereunder). Notwithstanding any other term of the Loan Documents, the parties hereto agree that (i) any amendment to the Issuer’s articles of association (including the adoption of new articles of association of Issuer), (ii) any amendment to the terms, conditions or other provisions of the Existing Convertible Indebtedness other than in any manner which would contravene in any respect any of the provisions of Section 6.10(a)(iv)), or (iii) any merger, business combination, formation of a New Subsidiary or any other step, action or transaction, in each case of clause (i), (ii) or (iii) above, specifically taken, entered into or completed by any Credit Party or any of its Subsidiaries, which is required in order to implement the IPO Transaction and which does not materially adversely affect ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender under any of the Loan Documents (provided, that so long as each material portion of Collateral owned by a Credit Party remains owned by a Credit Party after completion of the IPO Transaction there shall not be deemed to have been a material adverse effect on the ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender under any of the Loan Documents), shall not constitute a Default or Event of Default hereunder or require a consent or waiver from the Collateral Agent or any Lender under the terms of the Loan Documents, and each such step, action or transaction shall be expressly permitted under the terms of the Loan Documents. The Collateral Agent does not warrant or accept responsibility for, and shall not have any liability with respect to (a) the continuation of, administration of, submission of, calculation of or any other matter related to the Term SOFR Reference Rate Rate, Adjusted Term SOFR or Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, the Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes. The Collateral Agent and its affiliates or other related entities may engage in transactions that affect the calculation of the Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Collateral Agent may select information sources or services in its reasonable discretion to ascertain the Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR or any other Benchmark, in each case pursuant to the terms of this Agreement, and shall have no liability to Borrower, any Lender or any other Person for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.

Appears in 1 contract

Samples: Guaranty and Security Agreement (UroGen Pharma Ltd.)

ACCOUNTING AND OTHER TERMS. Except as otherwise expressly provided herein, all accounting terms not otherwise defined in this Agreement shall have the meanings assigned to them in conformity with Applicable Accounting Standards. Calculations and determinations must be made following Applicable Accounting Standards. If at any time any change in Applicable Accounting Standards would affect the computation of any financial requirement set forth in any Loan Document (including for purposes of measuring compliance with any provision of Section 6)Document, and either Borrower or the Collateral Agent shall so request, the Collateral Agent and Borrower shall negotiate in good faith to amend such requirement to preserve the original intent thereof in light of such change in Applicable Accounting Standards; provided, that, until so amended, (x) such requirement shall continue to be computed in accordance with Applicable Accounting Standards prior to such change therein therein. Without limiting the foregoing, leases shall continue to be classified and (y) accounted for on a basis consistent with that reflected in the audited consolidated financial statements of Borrower for the fiscal year ended December 31, 2018 for all financial statementspurposes of this Agreement, Compliance Certificates and similar documents provided, delivered or submitted hereunder shall be provided, delivered or submitted together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such notwithstanding any change in Applicable Accounting Standards. Notwithstanding any other provision contained hereinStandards relating thereto or the application thereof, all terms of an accounting or financial nature used herein unless Borrower and the Collateral Agent shall be construedenter into a mutually acceptable amendment addressing such changes, and all computations of amounts referred to herein, including in Section 5 and Section 6 shall be made, without giving effect to any (a) election under ASC 825-10 (or any other Financial Accounting Standards Board Accounting Standards Codification (“ASC”) or Financial Accounting Standard or Applicable Accounting Standard (including IFRS 9) having a similar result or effect) to value any Indebtedness or other liabilities of any Credit Party or any Subsidiary of any Credit Party at “fair value” and (b) any treatment of Indebtedness in respect of convertible debt instruments under ASC 470-20 (or any other ASC or Financial Accounting Standard or Applicable Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. Notwithstanding anything to the contrary above or in the definition of “Capital Lease Obligations”, all obligations of any Person that are or would have been treated as operating leases provided for purposes of Applicable Accounting Standards prior to the effectiveness of ASC 842 shall continue to be accounted for as operating leases for all purposes hereunder or under any other Loan Documents (whether or not such operating lease obligations were in effect on such date) notwithstanding the fact that such obligations are required in accordance with ASC 842 (on a prospective or retroactive basis or otherwise) to be treated as Capital Leasesabove. Capitalized terms not otherwise defined in this Agreement shall have the meanings set forth in Section 13. All other terms contained in this Agreement, unless otherwise indicated, shall have the meaning provided by the Code to the extent such terms are defined therein. All references to “Dollars” or “$” are United States Dollars, unless otherwise noted. For purposes of Sections 4, 5 and determining compliance with Section 6 and solely with respect to any the amount of anything any Indebtedness in a currency other than Dollars, no Default or Event of Default shall be deemed to have occurred and no action shall be required to be taken solely as a result of changes in rates of currency exchange occurring over after the time such Indebtedness is incurred, made or acquired (so long asas such Indebtedness, at the time incurred, mademade or acquired, acquired or otherwise coming into existence, such thing is otherwise was permitted hereunder). Notwithstanding any other term of the Loan Documents, the parties hereto agree that (i) any amendment to the Issuer’s articles of association (including the adoption of new articles of association of Issuer), (ii) any amendment to the terms, conditions or other provisions of the Existing Convertible Indebtedness other than in any manner which would contravene in any respect any of the provisions of Section 6.10(a)(iv)), or (iii) any merger, business combination, formation of a New Subsidiary or any other step, action or transaction, in each case of clause (i), (ii) or (iii) above, specifically taken, entered into or completed by any Credit Party or any of its Subsidiaries, which is required in order to implement the IPO Transaction and which does not materially adversely affect ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender under any of the Loan Documents (provided, that so long as each material portion of Collateral owned by a Credit Party remains owned by a Credit Party after completion of the IPO Transaction there shall not be deemed to have been a material adverse effect on the ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender under any of the Loan Documents), shall not constitute a Default or Event of Default hereunder or require a consent or waiver from the Collateral Agent or any Lender under the terms of the Loan Documents, and each such step, action or transaction shall be expressly permitted under the terms of the Loan Documents. The Collateral Agent does not warrant or accept responsibility for, and shall not have any liability with respect to (a) the continuation of, administration of, submission of, calculation of or any other matter related to the Term SOFR Reference Rate or Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, the Term SOFR Reference Rate, Term SOFR or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes. The Collateral Agent and its affiliates or other related entities may engage in transactions that affect the calculation of the Term SOFR Reference Rate, Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Collateral Agent may select information sources or services in its reasonable discretion to ascertain the Term SOFR Reference Rate, Term SOFR or any other Benchmark, in each case pursuant to the terms of this Agreement, and shall have no liability to Borrower, any Lender or any other Person for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.

Appears in 1 contract

Samples: Guaranty and Security Agreement (Sarepta Therapeutics, Inc.)

ACCOUNTING AND OTHER TERMS. Except as otherwise expressly provided herein, all accounting terms not otherwise defined in this Agreement shall have the meanings assigned to them in conformity with Applicable Accounting StandardsGAAP. Calculations and determinations must be made following Applicable Accounting StandardsGAAP. If at any time any change in Applicable Accounting Standards GAAP would affect the computation of any financial requirement set forth in any Loan Document (including for purposes of measuring compliance with any provision of Section 6), and either Borrower or the Collateral Agent shall so request, the Collateral Agent and Borrower shall negotiate in good faith to amend such requirement to preserve the original intent thereof in light of such change in Applicable Accounting StandardsGAAP; provided, that, until so amended, (x) such requirement shall continue to be computed in accordance with Applicable Accounting Standards GAAP prior to such change therein and (y) all financial statements, Compliance Certificates and similar documents provided, delivered or submitted hereunder shall be provided, delivered or submitted together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in Applicable Accounting StandardsGAAP. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts referred to herein, including in Section 5 and Section 6 shall be made, without giving effect to any (a) election under ASC 825-10 (or any other Financial Accounting Standards Board Accounting Standards Codification (“ASC”) or Financial Accounting Standard or Applicable Accounting Standard (including IFRS 9) having a similar result or effect) to value any Indebtedness or other liabilities of any Credit Party or any Subsidiary of any Credit Party at “fair value” and (b) any treatment of Indebtedness in respect of convertible debt instruments under ASC 470-20 (or any other ASC or Financial Accounting Standard or Applicable Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. Notwithstanding anything to the contrary above or in the definition of “Capital Lease Obligations”, all obligations of any Person that are or would have been treated as operating leases for purposes of Applicable Accounting Standards GAAP prior to the effectiveness of ASC 842 shall continue to be accounted for as operating leases for all purposes hereunder or under any other Loan Documents (whether or not such operating lease obligations were in effect on such date) notwithstanding the fact that such obligations are required in accordance with ASC 842 (on a prospective or retroactive basis or otherwise) to be treated as Capital Leases. Capitalized terms not otherwise defined in this Agreement shall have the meanings set forth in Section 13. All other terms contained in this Agreement, unless otherwise indicated, shall have the meaning provided by the Code to the extent such terms are defined therein. All references to “Dollars” or “$” are United States Dollars, unless otherwise noted. It being understood and agreed that Borrower or such other Credit Party may from time to time update certain information in the Perfection Certificate, the Disclosure Letter or such other disclosure schedules attached to Loan Documents after the Effective Date to the extent expressly permitted by one or more provisions in this Agreement and the other Loan Documents to reflect changes since the Effective Date, provided that in no event may the Perfection Certificate, the Disclosure Letter or such other disclosure schedules be updated in a manner that would reflect or evidence a Default or Event of Default (with or without such update). For purposes of Sections 4, 5 and 6 and solely with respect to any the amount of anything any Indebtedness, Investment or other transaction made or consummated in a currency other than Dollars, no Default or Event of Default shall be deemed to have occurred and no action shall be required to be taken after the time such Indebtedness, Investment or other transaction is incurred, made or consummated (so long as such Indebtedness, Investment or other transaction, at the time incurred, made or consummated, was permitted hereunder) solely as a result of changes in rates of currency exchange occurring over time (so long as, at the time incurred, made, acquired or otherwise coming into existence, such thing is otherwise permitted hereunder)time. Notwithstanding any other term of the Loan Documents, the parties hereto agree that (i) any amendment to the Issuer’s articles of association (including the adoption of new articles of association of Issuer), (ii) any amendment to the terms, conditions or other provisions of the Existing Convertible Indebtedness other than in any manner which would contravene in any respect any of the provisions of Section 6.10(a)(iv)), or (iii) any merger, business combination, formation of a New Subsidiary or any other step, action or transaction, in each case of clause (i), (ii) or (iii) above, specifically taken, entered into or completed by any Credit Party or any of its Subsidiaries, which is required in order to implement the IPO Transaction and which does not materially adversely affect ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender under any of the Loan Documents (provided, that so long as each material portion of Collateral owned by a Credit Party remains owned by a Credit Party after completion of the IPO Transaction there shall not be deemed to have been a material adverse effect on the ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender under any of the Loan Documents), shall not constitute a Default or Event of Default hereunder or require a consent or waiver from the Collateral Agent or any Lender under the terms of the Loan Documents, and each such step, action or transaction shall be expressly permitted under the terms of the Loan Documents. ​ ​ The Collateral Agent does not warrant or accept responsibility for, and shall not have any liability with respect to (a) the continuation of, administration of, submission of, calculation of or any other matter related to the Term SOFR Reference Rate or Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, the Term SOFR Reference Rate, Term SOFR or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes. The Collateral Agent and its affiliates or other related entities may engage in transactions that affect the calculation of the Term SOFR Reference Rate, Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Collateral Agent may select information sources or services in its reasonable discretion to ascertain the Term SOFR Reference Rate, Term SOFR or any other Benchmark, in each case pursuant to the terms of this Agreement, and shall have no liability to Borrower, any Lender or any other Person for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.

Appears in 1 contract

Samples: Loan Agreement (ImmunoGen, Inc.)

ACCOUNTING AND OTHER TERMS. Except as otherwise expressly provided herein, all accounting terms not otherwise defined in this Agreement shall have the meanings assigned to them in conformity with Applicable Accounting Standards. Calculations and determinations must be made following Applicable Accounting Standards. If at any time any change in Applicable Accounting Standards would affect the computation of any financial requirement set forth in any Loan Document (including for purposes of measuring compliance with any provision of Section 6), and either Borrower or the Collateral Agent shall so request, the Collateral Agent and Borrower shall negotiate in good faith to amend such requirement to preserve the original intent thereof in light of such change in Applicable Accounting Standards; provided, that, until so amended, (x) such requirement shall continue to be computed in accordance with Applicable Accounting Standards prior to such change therein and (y) all financial statements, Compliance Certificates and similar documents provided, delivered or submitted hereunder shall be provided, delivered or submitted together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in Applicable Accounting Standards. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts referred to herein, including in Section 5 and Section 6 shall be made, without giving effect to any (a) election under ASC 825-10 (or any other Financial Accounting Standards Board Accounting Standards Codification (“ASC”) or Financial Accounting Standard or Applicable Accounting Standard (including IFRS 9) having a similar result or effect) to value any Indebtedness or other liabilities of any Credit Party or any Subsidiary of any Credit Party at “fair value” and (b) any treatment of Indebtedness in respect of convertible debt instruments under ASC 470-20 (or any other ASC or Financial Accounting Standard or Applicable Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. Notwithstanding anything to the contrary above or in the definition of “Capital Lease Obligations”, all obligations of any Person that are or would have been treated as operating leases for purposes of Applicable Accounting Standards prior to the effectiveness of ASC 842 shall continue to be accounted for as operating leases for all purposes hereunder or under any other Loan Documents (whether or not such operating lease obligations were in effect on such date) notwithstanding the fact that such obligations are required in accordance with ASC 842 (on a prospective or retroactive basis or otherwise) to be treated as Capital Leases. Capitalized terms not otherwise defined in this Agreement shall have the meanings set forth in Section 13. All other terms contained in this Agreement, unless otherwise indicated, shall have the meaning provided by the Code to the extent such terms are defined therein. All references to “Dollars” or “$” are United States Dollars, unless otherwise noted. For purposes of Sections 4, 5 and determining compliance with Section 6 and solely with respect to any the amount of anything any Indebtedness in a currency other than Dollars, no Default or Event of Default shall be deemed to have occurred and no action shall be required to be taken solely as a result of changes in rates of currency exchange occurring over after the time such Indebtedness is incurred, made or acquired (so long asas such Indebtedness, at the time incurred, mademade or acquired, acquired or otherwise coming into existence, such thing is otherwise was permitted hereunder). Notwithstanding any other term For purposes of the Loan Documents, the parties hereto agree that (i) any amendment to the Issuer’s articles of association (including the adoption of new articles of association of Issuer), (ii) any amendment to the terms, conditions or other provisions of the Existing Convertible Indebtedness other than in any manner which would contravene in any respect any of the provisions of determining compliance with Section 6.10(a)(iv)), or (iii) any merger, business combination, formation of a New Subsidiary or any other step, action or transaction, in each case of clause (i), (ii) or (iii) above, specifically taken, entered into or completed by any Credit Party or any of its Subsidiaries, which is required in order to implement the IPO Transaction and which does not materially adversely affect ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender under any of the Loan Documents (provided, that so long as each material portion of Collateral owned by a Credit Party remains owned by a Credit Party after completion of the IPO Transaction there shall not be deemed to have been a material adverse effect on the ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender under any of the Loan Documents), shall not constitute a Default or Event of Default hereunder or require a consent or waiver from the Collateral Agent or any Lender under the terms of the Loan Documents, and each such step, action or transaction shall be expressly permitted under the terms of the Loan Documents. The Collateral Agent does not warrant or accept responsibility for, and shall not have any liability 6 with respect to (a) the continuation ofamount of any Investment, administration ofthe amount of any Investment shall be the original cost of such Investment plus the cost of all additions thereto, submission of, calculation of without any adjustment for increases or any other matter related to the Term SOFR Reference Rate or Term SOFRdecreases in value, or any component definition thereof or rates referred to in the definition thereofwrite-ups, write-downs, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any write-offs with respect to such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, the Term SOFR Reference Rate, Term SOFR or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes. The Collateral Agent and its affiliates or other related entities may engage in transactions that affect the calculation of the Term SOFR Reference Rate, Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Collateral Agent may select information sources or services in its reasonable discretion to ascertain the Term SOFR Reference Rate, Term SOFR or any other Benchmark, in each case pursuant to the terms of this Agreement, and shall have no liability to Borrower, any Lender or any other Person for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or serviceInvestment.

Appears in 1 contract

Samples: Loan Agreement (Evolus, Inc.)

ACCOUNTING AND OTHER TERMS. Except as otherwise expressly provided herein, all accounting terms not otherwise defined in this Agreement shall have the meanings assigned to them in conformity with Applicable Accounting StandardsGAAP. Calculations and determinations must be made following Applicable Accounting StandardsGAAP. If at any time any change in Applicable Accounting Standards GAAP would affect the computation of any financial requirement set forth in any Loan Document (including for purposes of measuring compliance with any provision of Section 6), and either Borrower or the Collateral Agent shall so request, the Collateral Agent and Borrower shall negotiate in good faith to amend such requirement to preserve the original intent thereof in light of such change in Applicable Accounting StandardsGAAP; provided, that, until so amended, (x) such requirement shall continue to be computed in accordance with Applicable Accounting Standards GAAP prior to such change therein and (y) all financial statements, Compliance Certificates and similar documents provided, delivered or submitted hereunder shall be provided, delivered or submitted together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in Applicable Accounting StandardsGAAP. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts referred to herein, including in Section 5 and Section 6 shall be made, without giving effect to any (a) election under ASC 825-10 (or any other Financial Accounting Standards Board Accounting Standards Codification (“ASC”) or Financial Accounting Standard or Applicable Accounting Standard (including IFRS 9) having a similar result or effect) to value any Indebtedness or other liabilities of any Credit Party or any Subsidiary of any Credit Party at “fair value” and (b) any treatment of Indebtedness in respect of convertible debt instruments under ASC 470-20 (or any other ASC or Financial Accounting Standard or Applicable Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. Notwithstanding anything to the contrary above or in the definition of “Capital Lease Obligations”, all obligations of any Person that are or would have been treated as operating leases for purposes of Applicable Accounting Standards GAAP prior to the effectiveness of ASC 842 shall continue to be accounted for as operating leases for all purposes hereunder or under any other Loan Documents (whether or not such operating lease obligations were in effect on such date) notwithstanding the fact that such obligations are required in accordance with ASC 842 (on a prospective or retroactive basis or otherwise) to be treated as Capital Leases. Capitalized terms not otherwise defined in this Agreement shall have the meanings set forth in Section 13. All other terms contained in this Agreement, unless otherwise indicated, shall have the meaning provided by the Code to the extent such terms are defined therein. All references to “Dollars” or “$” are United States Dollars, unless otherwise noted. For purposes of Sections 4, 5 and 6 and solely with respect to any the amount of anything any Indebtedness, Investment or other transaction made or consummated in a currency other than Dollars, no Default or Event of Default shall be deemed to have occurred and no action shall be required to be taken after the time such Indebtedness, Investment or other transaction is incurred, made or consummated (so long as such Indebtedness, Investment or other transaction, at the time incurred, made or consummated, was permitted hereunder) solely as a result of changes in rates of currency exchange occurring over time (so long as, at the time incurred, made, acquired or otherwise coming into existence, such thing is otherwise permitted hereunder). Notwithstanding any other term of the Loan Documents, the parties hereto agree that (i) any amendment to the Issuer’s articles of association (including the adoption of new articles of association of Issuer), (ii) any amendment to the terms, conditions or other provisions of the Existing Convertible Indebtedness other than in any manner which would contravene in any respect any of the provisions of Section 6.10(a)(iv)), or (iii) any merger, business combination, formation of a New Subsidiary or any other step, action or transaction, in each case of clause (i), (ii) or (iii) above, specifically taken, entered into or completed by any Credit Party or any of its Subsidiaries, which is required in order to implement the IPO Transaction and which does not materially adversely affect ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender under any of the Loan Documents (provided, that so long as each material portion of Collateral owned by a Credit Party remains owned by a Credit Party after completion of the IPO Transaction there shall not be deemed to have been a material adverse effect on the ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender under any of the Loan Documents), shall not constitute a Default or Event of Default hereunder or require a consent or waiver from the Collateral Agent or any Lender under the terms of the Loan Documents, and each such step, action or transaction shall be expressly permitted under the terms of the Loan Documentstime. The Collateral Agent does not warrant or accept responsibility for, and shall not have any liability with respect to (a) the continuation of, administration of, submission of, calculation of or any other matter related to the Term SOFR Reference Rate or Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, the Term SOFR Reference Rate, Term SOFR or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes. The Collateral Agent and its affiliates or other related entities may engage in transactions that affect the calculation of the Term SOFR Reference Rate, Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Collateral Agent may select information sources or services in its reasonable discretion to ascertain the Term SOFR Reference Rate, Term SOFR or any other Benchmark, in each case pursuant to the terms of this Agreement, and shall have no liability to Borrower, any Lender or any other Person for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.

Appears in 1 contract

Samples: Loan Agreement (INSMED Inc)

ACCOUNTING AND OTHER TERMS. Except as otherwise expressly provided herein, all accounting terms not otherwise defined in this Agreement shall have the meanings assigned to them in conformity with Applicable Accounting Standards. Calculations and determinations must be made following Applicable Accounting Standards. If at any time any change in Applicable Accounting Standards would affect the computation of any financial requirement set forth in any Loan Document (including for purposes of measuring compliance with any provision of Section 6), and either Borrower or the Collateral Agent shall so request, the Collateral Agent and Borrower shall negotiate in good faith to amend such requirement to preserve the original intent thereof in light of such change in Applicable Accounting Standards; provided, that, until so amended, (x) such requirement shall continue to be computed in accordance with Applicable Accounting Standards prior to such change therein and (y) all financial statements, Compliance Certificates and similar documents provided, delivered or submitted hereunder shall be provided, delivered or submitted together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in Applicable Accounting Standards. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts referred to herein, including in Section 5 and Section 6 shall be made, without giving effect to any (a) election under ASC 825-10 (or any other Financial Accounting Standards Board Accounting Standards Codification (“ASC”) or Financial Accounting Standard or Applicable Accounting Standard (including IFRS 9) having a similar result or effect) to value any Indebtedness or other liabilities of any Credit Party or any Subsidiary of any Credit Party at “fair value” and (b) any treatment of Indebtedness in respect of convertible debt instruments under ASC 470-20 (or any other ASC or Financial Accounting Standard or Applicable Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. Notwithstanding anything to the contrary above or in the definition of “Capital Lease Obligations”, all obligations of any Person that are or would have been treated as operating leases for purposes of Applicable Accounting Standards prior to the effectiveness of ASC 842 shall continue to be accounted for as operating leases for all purposes hereunder or under any other Loan Documents (whether or not such operating lease obligations were in effect on such date) notwithstanding the fact that such obligations are required in accordance with ASC 842 (on a prospective or retroactive basis or otherwise) to be treated as Capital Leases. Capitalized terms not otherwise defined in this Agreement shall have the meanings set forth in Section 13. All other terms contained in this Agreement, unless otherwise indicated, shall have the meaning provided by the Code to the extent such terms are defined therein. All references to “Dollars” or “$” are United States Dollars, unless otherwise noted. For purposes of Sections 4, 5 and 6 and solely with respect to any amount of anything in a currency other than Dollars, no Default or Event of Default shall be deemed to have occurred and no action shall be required to be taken solely as a result of changes in rates of currency exchange occurring over time (so long as, at the time incurred, made, acquired or otherwise coming into existence, such thing is otherwise permitted hereunder). Notwithstanding any other term of the Loan Documents, the parties hereto agree that (i) any amendment to the Issuer’s articles of association (including the adoption of new articles of association of Issuer), (ii) any amendment to the terms, conditions or other provisions of the Existing Convertible Indebtedness other than in any manner which would contravene in any respect any of the provisions of Section 6.10(a)(iv)), or (iii) any merger, business combination, formation of a New Subsidiary or any other step, action or transaction, in each case of clause (i), (ii) or (iii) above, specifically taken, entered into or completed by any Credit Party or any of its Subsidiaries, which is required in order to implement the IPO Transaction and which does not materially adversely affect ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender under any of the Loan Documents (provided, that so long as each material portion of Collateral owned by a Credit Party remains owned by a Credit Party after completion of the IPO Transaction there shall not be deemed to have been a material adverse effect on the ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender under any of the Loan Documents), shall not constitute a Default or Event of Default hereunder or require a consent or waiver from the Collateral Agent or any Lender under the terms of the Loan Documents, and each such step, action or transaction shall be expressly permitted under the terms of the Loan Documents. The Collateral Agent does not warrant or accept responsibility for, and shall not have any liability with respect to (a) the continuation of, administration of, submission of, calculation of or any other matter related to the Term SOFR Reference Rate or Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, the Term SOFR Reference Rate, Term SOFR or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes. The Collateral Agent and its affiliates or other related entities may engage in transactions that affect the calculation of the Term SOFR Reference Rate, Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Collateral Agent may select information sources or services in its reasonable discretion to ascertain the Term SOFR Reference Rate, Term SOFR or any other Benchmark, in each case pursuant to the terms of this Agreement, and shall have no liability to Borrower, any Lender or any other Person for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.

Appears in 1 contract

Samples: Loan Agreement (LumiraDx LTD)

ACCOUNTING AND OTHER TERMS. Except as otherwise expressly provided herein, all accounting terms not otherwise defined in this Agreement shall have the meanings assigned to them in conformity with Applicable Accounting Standards. Calculations and determinations must be made following Applicable Accounting Standards. If at any time any change in Applicable Accounting Standards would affect the computation of any financial requirement set forth in any Loan Document (including for purposes of measuring compliance with any provision of Section 6)Document, and either Borrower or the Collateral Agent Lender shall so request, the Collateral Agent Lender and Borrower shall negotiate in good faith to amend such requirement to preserve the original intent thereof in light of such change in Applicable Accounting Standards; provided, that, until so amended, (x) such requirement shall continue to be computed in accordance with Applicable Accounting Standards prior to such change therein and (y) therein. Without limiting the foregoing, leases shall continue to be classified on a basis consistent with that reflected in the audited consolidated financial statements of Borrower for the fiscal year ended December 31, 2018 for all financial statementspurposes of this Agreement, Compliance Certificates and similar documents provided, delivered or submitted hereunder shall be provided, delivered or submitted together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such notwithstanding any change in Applicable Accounting Standards. Notwithstanding any other provision contained hereinStandards relating thereto or the application thereof, all terms of an accounting or financial nature used herein unless the parties hereto shall be construedenter into a mutually acceptable amendment addressing such changes, and all computations of amounts referred to herein, including in Section 5 and Section 6 shall be made, without giving effect to any (a) election under ASC 825-10 (or any other Financial Accounting Standards Board Accounting Standards Codification (“ASC”) or Financial Accounting Standard or Applicable Accounting Standard (including IFRS 9) having a similar result or effect) to value any Indebtedness or other liabilities of any Credit Party or any Subsidiary of any Credit Party at “fair value” and (b) any treatment of Indebtedness in respect of convertible debt instruments under ASC 470-20 (or any other ASC or Financial Accounting Standard or Applicable Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. Notwithstanding anything to the contrary above or in the definition of “Capital Lease Obligations”, all obligations of any Person that are or would have been treated as operating leases provided for purposes of Applicable Accounting Standards prior to the effectiveness of ASC 842 shall continue to be accounted for as operating leases for all purposes hereunder or under any other Loan Documents (whether or not such operating lease obligations were in effect on such date) notwithstanding the fact that such obligations are required in accordance with ASC 842 (on a prospective or retroactive basis or otherwise) to be treated as Capital Leasesabove. Capitalized terms not otherwise defined in this Agreement shall have the meanings set forth in Section 1312. All other terms contained in this Agreement, unless otherwise indicated, shall have the meaning provided by the Code to the extent such terms are defined therein. All references to “Dollars” or “$” are United States Dollars, unless otherwise noted. For purposes of Sections 4, 5 and determining compliance with Section 6 and solely with respect to any the amount of anything any Indebtedness in a currency other than Dollars, no Default or Event of Default shall be deemed to have occurred and no action shall be required to be taken solely as a result of changes in rates of currency exchange occurring over after the time such Indebtedness is incurred, made or acquired (so long asas such Indebtedness, at the time incurred, mademade or acquired, acquired or otherwise coming into existence, such thing is otherwise was permitted hereunder). Notwithstanding any other term of the Loan Documents, the parties hereto agree that (i) any amendment to the Issuer’s articles of association (including the adoption of new articles of association of Issuer), (ii) any amendment to the terms, conditions or other provisions of the Existing Convertible Indebtedness other than in any manner which would contravene in any respect any of the provisions of Section 6.10(a)(iv)), or (iii) any merger, business combination, formation of a New Subsidiary or any other step, action or transaction, in each case of clause (i), (ii) or (iii) above, specifically taken, entered into or completed by any Credit Party or any of its Subsidiaries, which is required in order to implement the IPO Transaction and which does not materially adversely affect ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender under any of the Loan Documents (provided, that so long as each material portion of Collateral owned by a Credit Party remains owned by a Credit Party after completion of the IPO Transaction there shall not be deemed to have been a material adverse effect on the ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender under any of the Loan Documents), shall not constitute a Default or Event of Default hereunder or require a consent or waiver from the Collateral Agent or any Lender under the terms of the Loan Documents, and each such step, action or transaction shall be expressly permitted under the terms of the Loan Documents. The Collateral Agent does not warrant or accept responsibility for, and shall not have any liability with respect to (a) the continuation of, administration of, submission of, calculation of or any other matter related to the Term SOFR Reference Rate or Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, the Term SOFR Reference Rate, Term SOFR or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes. The Collateral Agent and its affiliates or other related entities may engage in transactions that affect the calculation of the Term SOFR Reference Rate, Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Collateral Agent may select information sources or services in its reasonable discretion to ascertain the Term SOFR Reference Rate, Term SOFR or any other Benchmark, in each case pursuant to the terms of this Agreement, and shall have no liability to Borrower, any Lender or any other Person for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.

Appears in 1 contract

Samples: Loan Agreement (Biodelivery Sciences International Inc)

ACCOUNTING AND OTHER TERMS. Except as otherwise expressly provided herein, all accounting terms not otherwise defined in this Agreement shall have the meanings assigned to them in conformity with Applicable Accounting Standards. Calculations and determinations must be made following Applicable Accounting Standards. If at any time any change in Applicable Accounting Standards would affect the computation of any financial requirement set forth in any Loan Document (including for purposes of measuring compliance with any provision of Section 6), and either Borrower or the Collateral Agent shall so request, the Collateral Agent and Borrower shall negotiate in good faith to amend such requirement to preserve the original intent thereof in light of such change in Applicable Accounting Standards; provided, that, until so amended, (x) such requirement shall continue to be computed in accordance with Applicable Accounting Standards prior to such change therein and (y) all financial statements, Compliance Certificates and similar documents provided, delivered or submitted hereunder shall be provided, delivered or submitted together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in Applicable Accounting Standards. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts referred to herein, including in Section 5 and Section 6 shall be made, without giving effect to any (a) election under ASC 825-10 (or any other Financial Accounting Standards Board Accounting Standards Codification (“ASC”) or Financial Accounting Standard or Applicable Accounting Standard (including IFRS 9) having a similar result or effect) to value any Indebtedness or other liabilities of any Credit Party or any Subsidiary of any Credit Party at “fair value” and (b) any treatment of Indebtedness in respect of convertible debt instruments under ASC 470-20 (or any other ASC or Financial Accounting Standard or Applicable Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. Notwithstanding anything to the contrary above or in the definition of “Capital Lease Obligations”, all obligations of any Person that are or would have been treated as operating leases for purposes of Applicable Accounting Standards prior to the effectiveness of ASC 842 shall continue to be accounted for as operating leases for all purposes hereunder or under any other Loan Documents (whether or not such operating lease obligations were in effect on such date) notwithstanding the fact that such obligations are required in accordance with ASC 842 (on a prospective or retroactive basis or otherwise) to be treated as Capital Leases. Capitalized terms not otherwise defined in this Agreement shall have the meanings set forth in Section 13. All other terms contained in this Agreement, unless otherwise indicated, shall have the meaning provided by the Code to the extent such terms are defined therein. All references to “Dollars” or “$” are United States Dollars, unless otherwise noted. For purposes of Sections 4, determining compliance with Section 5 and Section 6 and solely with respect to any the amount of anything any Indebtedness, Investment or other transaction in a currency other than Dollars, no Default or Event of Default shall be deemed to have occurred and no action shall be required to be taken solely as a result of changes in rates of currency exchange occurring over after the time such Indebtedness, Investment or other transaction is incurred, made or acquired (so long asas such transaction, at the time incurred, mademade or acquired, acquired or otherwise coming into existence, such thing is otherwise was permitted hereunder). Notwithstanding any other term of the Loan Documents, the parties hereto agree that (i) any amendment to the Issuer’s articles of association (including the adoption of new articles of association of Issuer), (ii) any amendment to the terms, conditions or other provisions of the Existing Convertible Indebtedness other than in any manner which would contravene in any respect any of the provisions of Section 6.10(a)(iv)), or (iii) any merger, business combination, formation of a New Subsidiary or any other step, action or transaction, in each case of clause (i), (ii) or (iii) above, specifically taken, entered into or completed by any Credit Party or any of its Subsidiaries, which is required in order to implement the IPO Transaction and which does not materially adversely affect ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender under any of the Loan Documents (provided, that so long as each material portion of Collateral owned by a Credit Party remains owned by a Credit Party after completion of the IPO Transaction there shall not be deemed to have been a material adverse effect on the ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender under any of the Loan Documents), shall not constitute a Default or Event of Default hereunder or require a consent or waiver from the Collateral Agent or any Lender under the terms of the Loan Documents, and each such step, action or transaction shall be expressly permitted under the terms of the Loan Documents. The Collateral Agent does not warrant or accept responsibility for, and shall not have any liability with respect to (a) the continuation of, administration of, submission of, calculation of or any other matter related to the Term SOFR Reference Rate or Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, the Term SOFR Reference Rate, Term SOFR or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes. The Collateral Agent and its affiliates or other related entities may engage in transactions that affect the calculation of the Term SOFR Reference Rate, Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Collateral Agent may select information sources or services in its reasonable discretion to ascertain the Term SOFR Reference Rate, Term SOFR or any other Benchmark, in each case pursuant to the terms of this Agreement, and shall have no liability to Borrower, any Lender or any other Person for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.

Appears in 1 contract

Samples: Loan Agreement (UroGen Pharma Ltd.)

ACCOUNTING AND OTHER TERMS. Except as otherwise expressly provided herein, all accounting (a) Accounting terms not otherwise defined in this Agreement shall have the meanings assigned to them in conformity with Applicable Accounting Standardsbe construed following GAAP. Calculations and determinations must be made following Applicable Accounting Standards. If GAAP (except for with respect to unaudited financial statements for the absence of footnotes and subject to year-end audit adjustments), provided that if at any time any change in Applicable Accounting Standards GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document (including for purposes of measuring compliance with any provision of Section 6)Document, and either Borrower or the Collateral Agent Bank shall so request, the Collateral Agent Borrower and Borrower Bank shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in Applicable Accounting StandardsGAAP; provided, further, that, until so amended, (xi) such ratio or requirement shall continue to be computed in accordance with Applicable Accounting Standards GAAP prior to such change therein and (yii) all Borrower shall provide Bank financial statements, Compliance Certificates statements and similar other documents provided, delivered required under this Agreement or submitted as reasonably requested hereunder shall be provided, delivered or submitted together with setting forth a reconciliation between the calculations and amounts set forth therein of such ratio or requirement made before and after giving effect to such change in Applicable Accounting StandardsGAAP. Notwithstanding the foregoing, for purposes of determining compliance with any other provision covenant contained herein, Indebtedness of the Borrower and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded. In addition, notwithstanding the foregoing, all terms of an accounting or financial nature used covenants contained herein shall be construedcalculated, and compliance with all computations of amounts referred to herein, including in Section 5 and Section 6 other covenants shall be made, determined without giving effect to any (a) election under ASC 825-10 (or any other change in accounting for leases pursuant to GAAP resulting from the adoption of Financial Accounting Standards Board Accounting Standards Codification Update No. 2016-02, Leases (Topic 842) (“ASCFAS 842) or Financial Accounting Standard or Applicable Accounting Standard (including IFRS 9) having a similar result or effect) to value any Indebtedness or other liabilities of any Credit Party or any Subsidiary of any Credit Party at “fair value” and (b) any treatment of Indebtedness in respect of convertible debt instruments under ASC 470-20 (or any other ASC or Financial Accounting Standard or Applicable Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein), and such Indebtedness shall at all times be valued at the full stated principal amount thereof. Notwithstanding anything to the contrary above or in the definition of “Capital Lease Obligations”, all obligations of any Person that are or would have been treated as operating leases for purposes of Applicable Accounting Standards prior to the effectiveness of ASC 842 shall continue to be accounted for as operating leases for all purposes hereunder or under any other Loan Documents (whether or not such operating lease obligations were in effect on such date) notwithstanding the fact that such obligations are required in accordance with ASC 842 (on a prospective or retroactive basis or otherwise) to be treated as Capital Leases. Capitalized terms not otherwise defined in this Agreement shall have the meanings set forth in Section 13. All other terms contained in this Agreement, unless otherwise indicated, shall have the meaning provided by the Code to the extent such terms are defined therein. All references adoption would require (x) treating any lease (or similar arrangement conveying the right to “Dollars” use) as a capital lease where such lease (or “$” are United States Dollarssimilar arrangement) would not have been required to be so treated under GAAP as in effect on December 31, unless otherwise noted. For purposes of Sections 4, 5 and 6 and solely 2015 or (y) recognizing liabilities on the balance sheet with respect to any amount of anything in a currency other than Dollars, no Default or Event of Default shall be deemed to have occurred and no action shall be required to be taken solely as a result of changes in rates of currency exchange occurring over time (so long as, at the time incurred, made, acquired or otherwise coming into existence, such thing is otherwise permitted hereunder). Notwithstanding any other term of the Loan Documents, the parties hereto agree that (i) any amendment to the Issuer’s articles of association (including the adoption of new articles of association of Issuer), (ii) any amendment to the terms, conditions or other provisions of the Existing Convertible Indebtedness other than in any manner which would contravene in any respect any of the provisions of Section 6.10(a)(iv)), or (iii) any merger, business combination, formation of a New Subsidiary or any other step, action or transaction, in each case of clause (i), (ii) or (iii) above, specifically taken, entered into or completed by any Credit Party or any of its Subsidiaries, which is required in order to implement the IPO Transaction and which does not materially adversely affect ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender operating leases under any of the Loan Documents (provided, that so long as each material portion of Collateral owned by a Credit Party remains owned by a Credit Party after completion of the IPO Transaction there shall not be deemed to have been a material adverse effect on the ownership of any material portion of Collateral or the priority or perfection of the security interests therein or Liens thereon granted to the Collateral Agent pursuant to the Collateral Documents, or any of the material rights, benefits, interests or remedies of the Collateral Agent or any Lender under any of the Loan Documents), shall not constitute a Default or Event of Default hereunder or require a consent or waiver from the Collateral Agent or any Lender under the terms of the Loan Documents, and each such step, action or transaction shall be expressly permitted under the terms of the Loan Documents. The Collateral Agent does not warrant or accept responsibility for, and shall not have any liability with respect to (a) the continuation of, administration of, submission of, calculation of or any other matter related to the Term SOFR Reference Rate or Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, the Term SOFR Reference Rate, Term SOFR or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes. The Collateral Agent and its affiliates or other related entities may engage in transactions that affect the calculation of the Term SOFR Reference Rate, Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Collateral Agent may select information sources or services in its reasonable discretion to ascertain the Term SOFR Reference Rate, Term SOFR or any other Benchmark, in each case pursuant to the terms of this Agreement, and shall have no liability to Borrower, any Lender or any other Person for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or serviceFAS 842.

Appears in 1 contract

Samples: Loan and Security Agreement (Achieve Life Sciences, Inc.)

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