Common use of Accounting Principles, Terms and Determinations Clause in Contracts

Accounting Principles, Terms and Determinations. Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided that, if the Company notifies the holders of Notes that the Company wishes to amend any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision (or if the Required Holders notifies the Company that the Required Holders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then the Company’s compliance with such provision shall be determined 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as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in a manner satisfactory to the Company and the Required Holders. Notwithstanding any other provision contained herein, 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 (i) without giving effect to any election under Accounting Standards Codification 000-00-00 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of the Company or any Subsidiary at “fair value”, as defined therein and (ii) without giving effect to any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial 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. Any reference herein to any specific citation, section or form of law, statute, rule or regulation shall refer to such new, replacement or analogous citation, section or form should such citation, section or form be modified, amended or replaced.

Accounting Principles, Terms and Determinations. Except as References in this Agreement to “GAAP” shall be deemed to refer to generally accepted accounting principles in effect in the United States. Unless otherwise expressly provided specified herein, all accounting terms of an accounting or financial nature used herein shall be construed interpreted, all determinations with respect to accounting matters hereunder shall be made, and all financial data, statements and certificates and reports as to financial matters required to be furnished hereunder (including financial ratios and other financial calculations) shall be prepared, in accordance with GAAP, GAAP applied on a basis consistent with the most recent audited financial statements referred to in clause (i) of paragraph 8B. If at any time any Accounting Change (as in effect from time to time; provided that, if defined below) would affect the Company notifies the holders of Notes that the Company wishes to amend any provision hereof to eliminate the effect computation of any change occurring after the date hereof financial ratio or other financial calculation set forth in GAAP this Agreement, (i) such ratio or calculation shall continue to be made in the application thereof on the operation of such provision (or if the Required Holders notifies the Company that the Required Holders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then the Company’s compliance accordance with such provision shall be determined 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 a manner satisfactory to the Company and the Required Holders. Notwithstanding any other provision contained hereinon January 1, 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 (i) without giving effect to any election under Accounting Standards Codification 000-00-00 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of the Company or any Subsidiary at “fair value”, as defined therein 2008 and (ii) without the Company shall provide to the holders of the Notes a reconciliation between such ratio or calculation made before and after giving effect to such Accounting Change. For purposes of this paragraph 10C, an “Accounting Change” means (A) any treatment change in accounting principles required by GAAP and implemented by the Company, (B) any change in accounting principles recommended by the Company’s independent accountants; and (C) any change in carrying value of the Company’s or any of its Subsidiaries’ assets, liabilities or equity accounts resulting from any adjustments that, in each case, were applicable to, but not included in, the audited financial statements referred to in paragraph 8B. Without limiting the foregoing, any changes to lease accounting that requires the assets and liabilities arising under operating leases to be recognized in any statement of financial position shall be excluded from such method of calculation for purposes hereof. For purposes of determining compliance with the financial covenants contained in this Agreement, including without limitation those set forth in paragraph 6A, any election by the Company to measure an item of Indebtedness in respect of convertible debt instruments under using fair value (as permitted by Accounting Standards Codification 470825-20 (10 or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effectaccounting standard) to value any such Indebtedness in a reduced or bifurcated manner as described therein, shall be disregarded and such Indebtedness determination shall at all times be valued at the full stated principal amount thereof. Any reference herein to any specific citation, section or form of law, statute, rule or regulation shall refer to made as if such new, replacement or analogous citation, section or form should such citation, section or form be modified, amended or replacedelection had not been made.

Accounting Principles, Terms and Determinations. Except as Unless otherwise expressly provided specified herein, all accounting terms of an accounting or financial nature used herein shall be construed interpreted, all determinations with respect to accounting matters hereunder shall be made, and all financial data, statements and certificates and reports as to financial matters required to be furnished hereunder (including financial ratios and other financial calculations) shall be prepared, in accordance with GAAP, GAAP applied on a basis consistent with the most recent audited financial statements of the Borrower referred to in Section 4.2. If at any time any Accounting Change (as in effect from time to time; provided that, if defined below) would affect the Company notifies the holders of Notes that the Company wishes to amend any provision hereof to eliminate the effect computation of any change occurring after the date hereof financial ratio or other financial calculation set forth in GAAP this Agreement, (i) such ratio or calculation shall continue to be made in the application thereof on the operation of such provision (or if the Required Holders notifies the Company that the Required Holders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then the Company’s compliance accordance with such provision shall be determined 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 a manner satisfactory to the Company and the Required Holders. Notwithstanding any other provision contained hereinon January 1, all terms of an accounting or financial nature used herein shall be construed2008, and all computations of amounts and ratios referred to herein shall be made (i) without giving effect to any election under Accounting Standards Codification 000-00-00 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of the Company or any Subsidiary at “fair value”, as defined therein and (ii) without the Borrower shall provide to the Administrative Agent and the Banks a reconciliation between such ratio or calculation made before and after giving effect to such Accounting Change. For purposes of this Section 1.2, an “Accounting Change” means (A) any treatment change in accounting principles required by GAAP and implemented by the Borrower, (B) any change in accounting principles recommended by the Borrower’s independent accountants; and (C) any change in carrying value of the Borrower’s or any of its Subsidiaries’ assets, liabilities or equity accounts resulting from any adjustments that, in each case, were applicable to, but not included in, the audited financial statements referred to in Section 4.2. Without limiting the foregoing, any changes to lease accounting that requires the assets and liabilities arising under operating leases to be recognized in any statement of financial position shall be excluded from such method of calculation for purposes hereof. For purposes of determining compliance with the financial covenants contained in this Agreement, including those set forth in Sections 6.1, 6.2 and 6.3, any election by the Borrower to measure an item of Indebtedness in respect of convertible debt instruments under using fair value (as permitted by Accounting Standards Codification 470825-20 (10 or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effectaccounting standard) to value any such Indebtedness in a reduced or bifurcated manner as described therein, shall be disregarded and such Indebtedness determination shall at all times be valued at the full stated principal amount thereof. Any reference herein to any specific citation, section or form of law, statute, rule or regulation shall refer to made as if such new, replacement or analogous citation, section or form should such citation, section or form be modified, amended or replacedelection had not been made.

Accounting Principles, Terms and Determinations. Except as otherwise expressly provided herein, all All accounting terms of an accounting or financial nature not specifically defined herein shall be construed in accordance with GAAP, as in effect from time to time; provided that, if the Company notifies the holders of Notes that the Company wishes to amend any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or consistent with those applied in the application thereof on preparation of the operation of such provision (or if the Required Holders notifies the Company that the Required Holders request an amendment financial statements referred to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then the Company’s compliance with such provision shall be determined 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 a manner satisfactory to the Company and the Required Holders. paragraph 8C. Notwithstanding any other provision contained herein, 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 (i) without giving effect to any election under Accounting Standards Codification 000-00-00 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of the Company or any Subsidiary at “fair value”, as defined therein and therein, (ii) without giving effect to any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a 42 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 thereofthereof and (iii) by excluding from Consolidated Cash Flow all non-cash credits or charges resulting from commodity hedging transactions. Any reference herein If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth herein, and the Company so requests, the holders of the Notes and the Company will negotiate in good faith to any specific citationamend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP; provided that until so amended, section such ratio or form of law, statute, rule or regulation requirement shall refer continue to be computed in accordance with GAAP as in effect prior to such new, replacement or analogous citation, section or form should such citation, section or form be modified, amended or replacedchange therein.

Accounting Principles, Terms and Determinations. Except as Unless otherwise expressly provided specified herein, all accounting terms of an accounting or financial nature used herein shall be construed interpreted, all determinations with respect to accounting matters hereunder shall be made, and all financial data, statements and certificates and reports as to financial matters required to be furnished hereunder (including financial ratios and other financial calculations) shall be prepared, in accordance with GAAP, GAAP applied on a basis consistent with the most recent audited financial statements of the Borrower referred to in Section 4.2. If at any time any Accounting Change (as in effect from time to time; provided that, if defined below) would affect the Company notifies the holders of Notes that the Company wishes to amend any provision hereof to eliminate the effect computation of any change occurring after the date hereof financial ratio or other financial calculation set forth in GAAP this Agreement, (i) such ratio or calculation shall continue to be made in the application thereof on the operation of such provision (or if the Required Holders notifies the Company that the Required Holders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then the Company’s compliance accordance with such provision shall be determined 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 a manner satisfactory to the Company and the Required Holders. Notwithstanding any other provision contained hereinon January 1, all terms of an accounting or financial nature used herein shall be construed2008, and all computations of amounts and ratios referred to herein shall be made (i) without giving effect to any election under Accounting Standards Codification 000-00-00 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of the Company or any Subsidiary at “fair value”, as defined therein and (ii) without the Borrower shall provide to the Administrative Agent and the Banks a reconciliation between such ratio or calculation made before and after giving effect to such Accounting Change. For purposes of this Section 1.2, an “Accounting Change” means (A) any treatment change in accounting principles required by GAAP and implemented by the Borrower, (B) any change in accounting principles recommended by the Borrower’s independent accountants; and (C) any change in carrying value of the Borrower’s or any of its Subsidiaries’ assets, liabilities or equity accounts resulting from any adjustments that, in each case, were applicable to, but not included in, the audited financial statements referred to in Section 4.2. For purposes of determining compliance with the financial covenants contained in this Agreement, including those set forth in Sections 6.1, 6.2, 6.3, 6.4 and 6.5, any election by the Borrower to measure an item of Indebtedness in respect using fair value (as permitted by Statement of convertible debt instruments under Financial Accounting Standards Codification 470-20 (No. 159 or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effectaccounting standard) to value any such Indebtedness in a reduced or bifurcated manner as described therein, shall be disregarded and such Indebtedness determination shall at all times be valued at the full stated principal amount thereof. Any reference herein to any specific citation, section or form of law, statute, rule or regulation shall refer to made as if such new, replacement or analogous citation, section or form should such citation, section or form be modified, amended or replacedelection had not been made.

Accounting Principles, Terms and Determinations. Except as otherwise expressly provided herein, all All accounting terms of an accounting or financial nature not specifically defined herein shall be construed in accordance with GAAP, as in effect from time to time; provided that, if the Company notifies the holders of Notes that the Company wishes to amend any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or consistent with those applied in the application thereof on preparation of the operation of such provision (or if the Required Holders notifies the Company that the Required Holders request an amendment financial statements referred to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then the Company’s compliance with such provision shall be determined 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 a manner satisfactory to the Company and the Required Holders. paragraph 8C. Notwithstanding any other provision contained herein, 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 (i) without giving effect to any election under Accounting Standards Codification 000-00-00 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of the Company or any Subsidiary at “fair value”, as defined therein and therein, (ii) without giving effect to any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial 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 thereofthereof and (iii) by excluding from Consolidated Cash Flow all non-cash credits or charges resulting from commodity hedging transactions. Any reference herein If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth herein, and the Company so requests, the holders of the Notes and the Company will negotiate in good faith to any specific citationamend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP; provided that until so amended, section such ratio or form of law, statute, rule or regulation requirement shall refer continue to be computed in accordance with GAAP as in effect prior to such new, replacement or analogous citation, section or form should such citation, section or form be modified, amended or replacedchange therein.

Accounting Principles, Terms and Determinations. Except as Unless otherwise expressly provided specified herein, all accounting terms of an accounting or financial nature used herein shall be construed interpreted, all determinations with respect to accounting matters hereunder shall be made, and all financial data, statements and certificates and reports as to financial matters required to be furnished hereunder (including financial ratios and other financial calculations) shall be prepared, in accordance with GAAP, GAAP applied on a basis consistent with the most recent audited financial statements of the Borrower referred to in Section 4.4. If at any time any Accounting Change (as in effect from time to time; provided that, if defined below) would affect the Company notifies the holders of Notes that the Company wishes to amend any provision hereof to eliminate the effect computation of any change occurring after the date hereof financial ratio or other financial calculation set forth in GAAP this Agreement, (i) such ratio or calculation shall continue to be made in the application thereof on the operation of such provision (or if the Required Holders notifies the Company that the Required Holders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then the Company’s compliance accordance with such provision shall be determined 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 a manner satisfactory to the Company and the Required Holders. Notwithstanding any other provision contained hereinon December 31, all terms of an accounting or financial nature used herein shall be construed2014, and all computations of amounts and ratios referred to herein shall be made (i) without giving effect to any election under Accounting Standards Codification 000-00-00 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of the Company or any Subsidiary at “fair value”, as defined therein and (ii) without the Borrower shall provide to the Administrative Agent and the Banks a reconciliation between such ratio or calculation made before and after giving effect to such Accounting Change. For purposes of this Section 1.2, an “Accounting Change” means (A) any treatment change in accounting principles required by GAAP and implemented by the Borrower, (B) any change in accounting principles recommended by the Borrower’s independent accountants; and (C) any change in carrying value of the Borrower’s or any of its Subsidiaries’ assets, liabilities or equity accounts resulting from any adjustments that, in each case, were applicable to, but not included in, the audited financial statements referred to in Section 4.4. Without limiting the foregoing, any changes to lease accounting that requires the assets and liabilities arising under operating leases to be recognized in any statement of financial position shall be excluded from such method of calculation for purposes hereof. For purposes of determining compliance with the financial covenants contained in Sections 6.1 and 6.2, any election by the Borrower to measure an item of Indebtedness in respect of convertible debt instruments under using fair value (as permitted by Accounting Standards Codification 470825-20 (10 or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effectaccounting standard) to value any such Indebtedness in a reduced or bifurcated manner as described therein, shall be disregarded and such Indebtedness determination shall at all times be valued at the full stated principal amount thereof. Any reference herein to any specific citation, section or form of law, statute, rule or regulation shall refer to made as if such new, replacement or analogous citation, section or form should such citation, section or form be modified, amended or replacedelection had not been made.