Calculations; Computations. (a) The financial statements to be furnished to the Lenders pursuant hereto shall be made and prepared in accordance with GAAP consistently applied throughout the periods involved (except as set forth in the notes thereto); provided, that (i) except as otherwise specifically provided herein, all computations and all definitions (including accounting terms) used in determining compliance with Sections 9.16 and 10 and calculations of the Fixed Charge Coverage Ratio and the First Lien Net Leverage Ratio, shall utilize GAAP and policies in conformity with those used to prepare the Pro Forma Financial Statements (subject to purchase accounting and other adjustments reasonably satisfactory to the Administrative Agent as a result of the Acquisition); provided, that if the Borrowers notify the Administrative Agent that the Borrowers request an amendment to any provision hereof to eliminate the effect of any change occurring in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrowers that the Required Lenders 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 such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change becomes effective until such notice shall have been withdrawn or such provision amended in accordance herewith; provided, further, that if such an amendment is requested by the Borrowers or the Required Lenders, then the Borrowers and the Administrative Agent shall negotiate in good faith to enter into an amendment of the relevant affected provisions (without the payment of any amendment or similar fee to the Lenders) to preserve the original intent thereof in light of such change in GAAP or the application thereof, (ii) except as otherwise expressly provided herein, for purposes of calculating financial terms, all covenants and related definitions, all such calculations shall be based on the operations, assets and results of the Company and its Restricted Subsidiaries on a consolidated basis and shall be made without giving effect to the operations, assets or results of any Unrestricted Subsidiaries, (iii) notwithstanding anything to the contrary contained herein, all covenants and financial ratios contained herein or in any other Credit Document shall be calculated, in each case, without giving effect to any election under FASB ASC 825 (or any similar accounting principle) permitting a Person to value its financial liabilities at the fair value thereof, (iv) all financial statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of any accounting change shall contain a schedule showing the adjustments, in any, necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting changes, and (v) all references in this Agreement to a four-Fiscal Quarter period of the Company referring to a period prior to the Effective Date shall refer to the applicable period prior to the Effective Date as if the Company had existed and the Transaction has occurred on the first day of said period. (b) All computations of interest, Commitment Commission and other Fees hereunder shall be made on the basis of a year of 360 days (except for interest calculated by reference to the Prime Rate in the case of Base Rate Loans, which shall be based on a year of 365 or 366 days, as applicable) for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest are payable. (c) Notwithstanding anything to the contrary herein, at any time after an IPO, to the extent that the terms of this Agreement require (i) compliance with any financial ratio or test (including, without limitation, any Fixed Charge Coverage Ratio and/or the amount of Consolidated EBITDA) or (ii) the absence of a Default or Event of Default (or any type of Default or Event of Default) as a condition to (A) the making of any Dividend and/or (B) the making of any Restricted Junior Payment, the determination of whether the relevant condition is satisfied may be made, at the election of the Borrowers, (1) in the case of any Dividend, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (A) the declaration of such Dividend or (B) the making of such Dividend and (2) in the case of any Restricted Junior Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (1) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Junior Payment or (2) the making of such Restricted Junior Payment, in each case, after giving effect to the relevant acquisition, Dividend and/or Restricted Junior Payment on a Pro Forma Basis. (d) For purposes of determining the permissibility of any action, change, transaction or event that requires a calculation of any financial ratio or test (including, without limitation, Section 10.11, any Fixed Charge Coverage Ratio test and/or the amount of Consolidated EBITDA), such financial ratio or test shall be calculated at the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be, and no Default or Event of Default shall be deemed to have occurred solely as a result of a change in such financial ratio or test occurring after the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be. (e) Notwithstanding anything to the contrary contained in paragraph (a) above or in the definition of “Capitalized Lease Obligations”, in the event of an accounting change requiring all leases to be capitalized, only those leases (assuming for purposes hereof that such leases were in existence on the date hereof) that would constitute Capitalized Lease Obligations in conformity with GAAP on the date hereof shall be considered Capitalized Lease Obligations, and all calculations and deliverables under this Agreement or any other Credit Document shall be made or delivered, as applicable, in accordance therewith (provided, that together with all financial statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of any such accounting change, the Borrowers shall deliver a schedule showing the adjustments necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting change).
Appears in 1 contract
Calculations; Computations. (a) The financial statements to be furnished to the Lenders pursuant hereto shall be made and prepared in accordance with GAAP consistently applied throughout the periods involved (except as set forth in the notes thereto)effect from time to time; provided, that (i) except as otherwise specifically provided herein, all computations and all definitions (including accounting terms) used in determining compliance with Sections 9.16 and 10 and calculations of the Fixed Charge Coverage Ratio and the First Lien Net Leverage Ratio, shall utilize GAAP and policies in conformity with those used to prepare the Pro Forma Financial Statements (subject to purchase accounting and other adjustments reasonably satisfactory to the Administrative Agent as a result of the Acquisition); provided, that if the Borrowers notify Company notifies the Administrative Agent that the Borrowers request it requests an amendment to any provision hereof to eliminate the effect of any change occurring in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrowers Company that the Required Lenders 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 such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change becomes shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith; provided. The Company shall have the right, furtherif required by relevant regulatory authorities, that if such an amendment is requested to adopt the International Financial Reporting Standards, as promulgated by the Borrowers International Accounting Standards Board (or any successor board or agency), as in effect on the Required Lenders, then the Borrowers and the Administrative Agent shall negotiate in good faith to enter into an amendment date of the relevant affected provisions (without the payment of any amendment or similar fee to the Lenders) to preserve the original intent thereof in light of such change in GAAP or the application thereofelection, (ii) except as otherwise expressly provided hereinwhich election shall, for purposes of calculating financial termsthis Agreement, all covenants and related definitions, all such calculations shall be based on the operations, assets and results of the Company and its Restricted Subsidiaries on treated as a consolidated basis permitted change in GAAP and shall be made without giving effect subject to the operations, assets or results terms of the immediately preceding sentence. Notwithstanding any Unrestricted Subsidiaries, (iii) notwithstanding anything to the contrary other provision contained herein, (i) all covenants and terms of an accounting or financial ratios contained nature used herein or in any other Credit Document shall be calculatedconstrued, in each caseand all computations of amounts and ratios referred to herein shall be made, without giving effect to any election under FASB Statement of Financial Accounting Standards 141R or ASC 825 805 (or any other financial accounting standard having a similar result or effect) and (ii) any lease which was (or would have been) classified as an operating lease under the Company’s accounting principle) permitting a Person to value its financial liabilities at the fair value thereof, (iv) all financial statements delivered to the Administrative Agent treatment thereof in accordance with the terms of this Agreement after the date of any accounting change shall contain a schedule showing the adjustments, in any, necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting changeson the Closing Date shall not constitute a Capital Lease, and the obligations or liabilities thereunder shall not constitute Capitalized Lease Obligations, notwithstanding any changes in GAAP (vor the required implementation of any previously promulgated changes in GAAP) all references in this Agreement to a four-Fiscal Quarter period of the Company referring to a period prior subsequent to the Closing Date (whether before or after the SecondFourth Amendment Effective Date shall refer Date) relating to the applicable period prior to the Effective Date treatment of a lease as if the Company had existed and the Transaction has occurred on the first day of said periodan operating lease or capitalized lease.
(b) All computations of interest, Commitment Commission and other Fees hereunder shall be made on the basis of a year of 360 days (except for interest calculated by reference to the Prime Rate in the case of Base Rate Loans, which shall be based on a year of 365 or 366 days, as applicable) for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest are payable.
(c) Notwithstanding anything to the contrary herein, at any time after an IPO, to the extent that the terms of this Agreement require (i) compliance with any financial ratio or test (including, without limitation, any Fixed Charge Coverage Ratio and/or the amount of Consolidated EBITDA) or (ii) the absence of a Default or Event of Default (or any type of Default or Event of Default) as a condition to (A) the making of any Dividend and/or (B) the making of any Restricted Junior Payment, the determination of whether the relevant condition is satisfied may be made, at the election of the Borrowers, (1) in the case of any Dividend, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (A) the declaration of such Dividend or (B) the making of such Dividend and (2) in the case of any Restricted Junior Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (1) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Junior Payment or (2) the making of such Restricted Junior Payment, in each case, after giving effect to the relevant acquisition, Dividend and/or Restricted Junior Payment on a Pro Forma Basis.
(d) For purposes of determining the permissibility of any action, change, transaction or event that requires a The calculation of any financial ratio or test (including, without limitation, Section 10.11, any Fixed Charge Coverage Ratio test and/or the amount of Consolidated EBITDA), such financial ratio or test ratios under this Agreement shall be calculated at by dividing the time appropriate component by the other component, carrying the result to one place more than the number of places by which such action ratio is taken, such change is made, such transaction is consummated expressed herein and rounding the result up or such event occurs, as the case may be, and no Default or Event of Default shall be deemed to have occurred solely as a result of a change in such financial ratio or test occurring after the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be.
(e) Notwithstanding anything down to the contrary contained in paragraph nearest number (a) above or in the definition of “Capitalized Lease Obligations”, in the event of an accounting change requiring all leases to be capitalized, only those leases (assuming for purposes hereof that such leases were in existence on the date hereof) that would constitute Capitalized Lease Obligations in conformity with GAAP on the date hereof shall be considered Capitalized Lease Obligations, and all calculations and deliverables under this Agreement or any other Credit Document shall be made or delivered, as applicable, in accordance therewith (provided, that together with all financial statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of any such accounting change, the Borrowers shall deliver a schedule showing the adjustments necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting changerounding-down if there is no nearest number).
Appears in 1 contract
Calculations; Computations. (a) The financial statements to be furnished to the Lenders pursuant hereto shall be made and prepared in accordance with GAAP generally accepted accounting principles in the United StatesGAAP consistently applied throughout the periods involved (except as set forth in the notes theretothereto or as otherwise disclosed in writing by the Company to the Lenders; it being understood and agreed that notes may be absent in the interim financial statements); provided. In addition, that (i) except as otherwise specifically provided herein, all computations and all definitions (including accounting terms) used in determining compliance with Sections 9.16 4.02 and 10 8, including definitions used therein, and calculations for all purposes of determining Capital Expenditures, the Fixed Charge Interest Coverage Ratio, Net Leverage Ratio and the First Lien Senior Secured Net Leverage Ratio, shall utilize GAAP accounting principles and policies in conformity with those used effect from time to prepare the Pro Forma Financial Statements (subject to purchase accounting and other adjustments reasonably satisfactory to the Administrative Agent as a result of the Acquisition)time; providedprovided that, that if the Borrowers notify Company notifies the Administrative Agent that the Borrowers request Company requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Amendment and Restatement EffectiveClosing Date in GAAP or in the application thereof on the operation of such provision (, including without limitation in the event of an accounting change requiring all leases to be capitalized, or if the Administrative Agent notifies the Borrowers Company that it or the Required Lenders 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 such provision shall be interpreted and continue to be computed on the basis of GAAP as in effect and applied immediately before such change becomes shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith; provided. Notwithstanding the foregoing, furtherto the extent expressly required pursuant to the provisions of this Agreement, that if such an amendment is requested by certain calculations shall be made on a pro forma basis. In furtherance of the Borrowers or foregoing, at the Required Lendersrequest of the Company, then the Borrowers and Company, the Administrative Agent shall and the Lenders agree to negotiate in good faith to enter into an any such amendment addressing the impact of the relevant affected provisions (without the payment of any amendment or similar fee to the Lenders) to preserve the original intent thereof in light of such change changes in GAAP upon the covenants (financial or the application thereof, (iiotherwise) except as otherwise expressly provided herein, for purposes of calculating financial terms, all covenants and related definitions, all such calculations shall be based on the operations, assets and results of at no cost to the Company and its Restricted Subsidiaries on a consolidated basis and shall be made without giving effect to other than the operations, assets or results reimbursement of any Unrestricted Subsidiaries, (iii) notwithstanding anything to the contrary contained herein, all covenants and financial ratios contained herein or in any other Credit Document shall be calculated, in each case, without giving effect to any election under FASB ASC 825 (or any similar accounting principle) permitting a Person to value its financial liabilities at the fair value thereof, (iv) all financial statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of any accounting change shall contain a schedule showing the adjustments, in any, necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting changes, Agent’s cost and (v) all references in this Agreement to a four-Fiscal Quarter period of the Company referring to a period prior to the Effective Date shall refer to the applicable period prior to the Effective Date as if the Company had existed and the Transaction has occurred on the first day of said periodexpenses contemplated by Section 11.01(a).
(b) All computations of interest, Commitment Commission interest and other Fees hereunder shall be made on the basis of a year of 360 days (except for interest calculated by reference to the Prime Rate in the case of Base Rate LoansLending Rate, which shall be based on a year of 365 or 366 days, as applicable) for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest or Fees are payable.
(c) Notwithstanding anything to the contrary herein, at any time after an IPO, to the extent that the terms of this Agreement require (i) compliance with any financial ratio or test (including, without limitation, any Fixed Charge Coverage Ratio and/or the amount of Consolidated EBITDA) or (ii) the absence of a Default or Event of Default (or any type of Default or Event of Default) as a condition to (A) the making of any Dividend and/or (B) the making of any Restricted Junior Payment, the determination of whether the relevant condition is satisfied may be made, at the election of the Borrowers, (1) in the case of any Dividend, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (A) the declaration of such Dividend or (B) the making of such Dividend and (2) in the case of any Restricted Junior Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (1) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Junior Payment or (2) the making of such Restricted Junior Payment, in each case, after giving effect to the relevant acquisition, Dividend and/or Restricted Junior Payment on a Pro Forma Basis.
(d) For purposes of determining the permissibility of any action, change, transaction or event that requires a calculation of any financial ratio or test (including, without limitation, Section 10.11, any Fixed Charge Coverage Ratio test and/or the amount of Consolidated EBITDA), such financial ratio or test shall be calculated at the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be, and no Default or Event of Default shall be deemed to have occurred solely as a result of a change in such financial ratio or test occurring after the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be.
(e) Notwithstanding anything to the contrary contained in paragraph (a) above or in the definition of “Capitalized Lease Obligations”, in the event of an accounting change requiring all leases to be capitalized, only those leases (assuming for purposes hereof that such leases were in existence on the date hereof) that would constitute Capitalized Lease Obligations in conformity with GAAP on the date hereof shall be considered Capitalized Lease Obligations, and all calculations and deliverables under this Agreement or any other Credit Document shall be made or delivered, as applicable, in accordance therewith (provided, that together with all financial statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of any such accounting change, the Borrowers shall deliver a schedule showing the adjustments necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting change).
Appears in 1 contract
Calculations; Computations. (a) The financial statements to be furnished to the Lenders pursuant hereto shall be made and prepared in accordance with GAAP consistently applied throughout the periods involved (subject, in the case of quarterly financial statements, to year end adjustments and the absence of footnotes and except as set forth in the notes thereto, if any, or as otherwise disclosed in writing by the Borrower to the Lenders); provided, provided that (ix) except as otherwise specifically provided herein, all computations of Excess Cash Flow and all definitions (including accounting terms) used in computations determining compliance with Sections 9.16 and 10 and calculations of the Fixed Charge Coverage Ratio and the First Lien Net Leverage RatioFinancial Covenants, including definitions used therein, shall utilize GAAP accounting principles and policies in effect at the time of the preparation of, and in conformity with those used to prepare prepare, the Pro Forma Financial Statements historical financial statements of Holdings and its Subsidiaries referred to in the first sentence of Section 6.10(b) and (subject to purchase accounting and other adjustments reasonably satisfactory to the Administrative Agent y) if, as a result of any change after the Acquisition); providedRestatement Effective Date in GAAP, that if any change in such accounting principles and policies used in the Borrowers notify preparation of such financial statements occurs, then, following the request of the Borrower, or the Administrative Agent that the Borrowers request an amendment to any provision hereof to eliminate the effect of any change occurring in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrowers that the Required Lenders 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 such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change becomes effective until such notice shall have been withdrawn or such provision amended in accordance herewith; provided, further, that if such an amendment is requested by the Borrowers or the Required Lenders, then the Borrowers and the Administrative Agent parties hereto shall negotiate in good faith to enter into an amendment of the relevant affected provisions (without the payment of any amendment or similar fee modifications to the Lenders) definitions, covenants and other provisions of this Agreement relating to preserve the original intent thereof financial covenant calculations required to be made under this Agreement in light order to reflect the impact and the projected impact of such change in GAAP or the application thereof, (ii) except as otherwise expressly provided herein, for purposes of calculating financial terms, all covenants and related definitions, all such calculations shall be based on the operations, assets consolidated financial position and results of the Company operations of Holdings and its Restricted Subsidiaries on a consolidated basis (and if an amendment to this Agreement is entered into as contemplated above in this clause (y), then from and after the date thereof the computations pursuant to preceding clause (x) of this proviso shall be made without giving in conformity with the accounting principles and policies referenced in preceding clause (x), but adjusted to give effect to the operations, assets changes to GAAP made after the Restatement Effective Date and on or results of any Unrestricted Subsidiaries, (iii) notwithstanding anything prior to the contrary contained herein, all covenants and financial ratios contained herein or in any other Credit Document shall be calculated, in each case, without giving effect to any election under FASB ASC 825 (or any similar accounting principle) permitting a Person to value its financial liabilities at the fair value thereof, (iv) all financial statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of the respective such amendment), provided further, that until such time as any accounting modifications have become effective as contemplated by clause (y) of the immediately preceding proviso, if there has been any change after the Restatement Effective Date (or the date of the last amendment effected pursuant to clause (y) of the immediately preceding proviso) in GAAP, then the financial statements furnished to the Lenders pursuant hereto shall contain a schedule be accompanied by reconciliation worksheets showing the adjustments, information required to determine compliance with the provisions referenced in any, necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting changes, and clause (vx) all references in this Agreement to a four-Fiscal Quarter period of the Company referring to a period prior to the Effective Date shall refer to the applicable period prior to the Effective Date as if the Company had existed and the Transaction has occurred on the first day of said periodimmediately preceding proviso.
(b) All computations of interest, Commitment Commission and other Fees hereunder shall be made on the basis of a year of 360 days (except for interest calculated by reference to the Prime Rate or 365/366 days in the case of interest on Base Rate Loans, which shall be Loans based on a year of 365 or 366 days, as applicablethe Prime Lending Rate) for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest are payabledays.
(c) Notwithstanding anything to the contrary herein, at any time after an IPO, to the extent that the terms of this Agreement require (i) compliance with any financial ratio or test (including, without limitation, any Fixed Charge Coverage Ratio and/or the amount of Consolidated EBITDA) or (ii) the absence of a Default or Event of Default (or any type of Default or Event of Default) as a condition to (A) the making of any Dividend and/or (B) the making of any Restricted Junior Payment, the determination of whether the relevant condition is satisfied may be made, at the election of the Borrowers, (1) in the case of any Dividend, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (A) the declaration of such Dividend or (B) the making of such Dividend and (2) in the case of any Restricted Junior Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (1) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Junior Payment or (2) the making of such Restricted Junior Payment, in each case, after giving effect to the relevant acquisition, Dividend and/or Restricted Junior Payment on a Pro Forma Basis.
(d) For purposes of determining the permissibility of any action, change, transaction or event that requires a calculation of any financial ratio or test (including, without limitation, Section 10.11, any Fixed Charge Coverage Ratio test and/or the amount of Consolidated EBITDA), such financial ratio or test shall be calculated at the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be, and no Default or Event of Default shall be deemed to have occurred solely as a result of a change in such financial ratio or test occurring after the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be.
(e) Notwithstanding anything to the contrary contained in paragraph (a) above or in the definition of “Capitalized Lease Obligations”, in the event of an accounting change requiring all leases to be capitalized, only those leases (assuming for purposes hereof that such leases were in existence on the date hereof) that would constitute Capitalized Lease Obligations in conformity with GAAP on the date hereof shall be considered Capitalized Lease Obligations, and all calculations and deliverables under this Agreement or any other Credit Document shall be made or delivered, as applicable, in accordance therewith (provided, that together with all financial statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of any such accounting change, the Borrowers shall deliver a schedule showing the adjustments necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting change).
Appears in 1 contract
Sources: Credit Agreement (RBS Global Inc)
Calculations; Computations. (a) The financial statements to be furnished to the Lenders pursuant hereto shall be made and prepared in accordance with GAAP consistently applied throughout the periods involved (except as set forth in the notes thereto)effect from time to time; provided, that (i) except as otherwise specifically provided herein, all computations and all definitions (including accounting terms) used in determining compliance with Sections 9.16 and 10 and calculations of the Fixed Charge Coverage Ratio and the First Lien Net Leverage Ratio, shall utilize GAAP and policies in conformity with those used to prepare the Pro Forma Financial Statements (subject to purchase accounting and other adjustments reasonably satisfactory to the Administrative Agent as a result of the Acquisition); provided, that if the Borrowers notify Company notifies the Administrative Agent that the Borrowers request it requests an amendment to any provision hereof to eliminate the effect of any change occurring in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrowers Company that the Required Lenders 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 such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change becomes shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith; provided. The Company shall CHAR1\▇▇▇▇▇▇▇▇▇ have the right, furtherif required by relevant regulatory authorities, that if such an amendment is requested to adopt the International Financial Reporting Standards, as promulgated by the Borrowers International Accounting Standards Board (or any successor board or agency), as in effect on the Required Lenders, then the Borrowers and the Administrative Agent shall negotiate in good faith to enter into an amendment date of the relevant affected provisions (without the payment of any amendment or similar fee to the Lenders) to preserve the original intent thereof in light of such change in GAAP or the application thereofelection, (ii) except as otherwise expressly provided hereinwhich election shall, for purposes of calculating financial termsthis Agreement, all covenants and related definitions, all such calculations shall be based on the operations, assets and results of the Company and its Restricted Subsidiaries on treated as a consolidated basis permitted change in GAAP and shall be made without giving effect subject to the operations, assets or results terms of the immediately preceding sentence. Notwithstanding any Unrestricted Subsidiaries, (iii) notwithstanding anything to the contrary other provision contained herein, all covenants and terms of an accounting or financial ratios contained nature used herein or in any other Credit Document shall be calculatedconstrued, in each caseand all computations of amounts and ratios referred to herein shall be made, without giving effect to any election under FASB (i) Statement of Financial Accounting Standards 141R or ASC 825 805 (or any other financial accounting standard having a similar result or effect) and (ii) Financial Accounting Standards Board Accounting Standards Codification 825 and Financial Accounting Standards Board Accounting Standards Codification 470-20 on financial liabilities. Notwithstanding any other provision contained herein, any lease which was (or would have been) classified as an operating lease under the Company’s accounting principle) permitting a Person to value its financial liabilities at the fair value thereof, (iv) all financial statements delivered to the Administrative Agent treatment thereof in accordance with the terms of this Agreement after the date of any accounting change shall contain a schedule showing the adjustments, in any, necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting changeson the date of the Existing Credit Agreement shall not constitute a capital lease under this Agreement, and the obligations or liabilities thereunder shall not constitute capitalized lease obligations under this Agreement, notwithstanding any changes in GAAP (vor the required implementation of any previously promulgated changes in GAAP) all references in this Agreement subsequent to a four-Fiscal Quarter period the date of the Company referring to a period prior Existing Credit Agreement (whether before or after the Closing Date) relating to the Effective Date shall refer to the applicable period prior to the Effective Date treatment of a lease as if the Company had existed and the Transaction has occurred on the first day of said periodan operating lease or capitalized lease.
(b) All computations of interest, Commitment Commission and other Fees hereunder shall be made on the basis of a year of 360 days (except for interest calculated by reference to the Prime Rate in the case of Base Rate Loans, which shall be based on a year of 365 or 366 days, as applicable) for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest are payable.
(c) Notwithstanding anything to the contrary herein, at any time after an IPO, to the extent that the terms of this Agreement require (i) compliance with any financial ratio or test (including, without limitation, any Fixed Charge Coverage Ratio and/or the amount of Consolidated EBITDA) or (ii) the absence of a Default or Event of Default (or any type of Default or Event of Default) as a condition to (A) the making of any Dividend and/or (B) the making of any Restricted Junior Payment, the determination of whether the relevant condition is satisfied may be made, at the election of the Borrowers, (1) in the case of any Dividend, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (A) the declaration of such Dividend or (B) the making of such Dividend and (2) in the case of any Restricted Junior Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (1) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Junior Payment or (2) the making of such Restricted Junior Payment, in each case, after giving effect to the relevant acquisition, Dividend and/or Restricted Junior Payment on a Pro Forma Basis.
(d) For purposes of determining the permissibility of any action, change, transaction or event that requires a The calculation of any financial ratio or test (including, without limitation, Section 10.11, any Fixed Charge Coverage Ratio test and/or the amount of Consolidated EBITDA), such financial ratio or test ratios under this Agreement shall be calculated at by dividing the time appropriate component by the other component, carrying the result to one place more than the number of places by which such action ratio is taken, such change is made, such transaction is consummated expressed herein and rounding the result up or such event occurs, as the case may be, and no Default or Event of Default shall be deemed to have occurred solely as a result of a change in such financial ratio or test occurring after the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be.
(e) Notwithstanding anything down to the contrary contained in paragraph nearest number (a) above or in the definition of “Capitalized Lease Obligations”, in the event of an accounting change requiring all leases to be capitalized, only those leases (assuming for purposes hereof that such leases were in existence on the date hereof) that would constitute Capitalized Lease Obligations in conformity with GAAP on the date hereof shall be considered Capitalized Lease Obligations, and all calculations and deliverables under this Agreement or any other Credit Document shall be made or delivered, as applicable, in accordance therewith (provided, that together with all financial statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of any such accounting change, the Borrowers shall deliver a schedule showing the adjustments necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting changerounding-down if there is no nearest number).
Appears in 1 contract
Calculations; Computations. (a) The financial statements to be furnished to the Lenders pursuant hereto shall be made and prepared in accordance with GAAP consistently applied throughout the periods involved (except as set forth in the notes theretothereto or as otherwise disclosed in writing by the Borrower to the Lenders); provided, provided that (i) except as otherwise specifically provided herein, all computations and all definitions (including accounting terms) used in determining compliance with Sections 9.16 and 10 and calculations of the Fixed Charge Coverage Ratio and the First Lien Net Leverage Ratio, shall utilize GAAP and policies in conformity with those used to prepare the Pro Forma Financial Statements (subject to purchase accounting and other adjustments reasonably satisfactory to the Administrative Agent as a result of the Acquisition); provided, that if the Borrowers notify the Administrative Agent that the Borrowers request an amendment to any provision hereof to eliminate the effect of any change occurring in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrowers that the Required Lenders 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 such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change becomes effective until such notice shall have been withdrawn or such provision amended in accordance herewith; provided, further, that if such an amendment is requested by the Borrowers or the Required Lenders, then the Borrowers and the Administrative Agent shall negotiate in good faith to enter into an amendment of the relevant affected provisions (without the payment of any amendment or similar fee to the Lenders) to preserve the original intent thereof in light of such change in GAAP or the application thereof, (ii) except as otherwise expressly provided herein, for purposes of calculating financial terms, all covenants and related definitions, all such calculations shall be based on the operations, assets and results of the Company and its Restricted Subsidiaries on a consolidated basis and shall be made without giving effect to the operations, assets or results of any Unrestricted Subsidiaries, (iii) notwithstanding anything to the contrary contained herein, all such financial statements shall be prepared, and all financial covenants and financial ratios contained herein or in any other Credit Document shall be calculated, in each case, without giving effect to any election under FASB ASC 825 (or any similar accounting principle) permitting a Person to value its financial liabilities at the fair value thereof, (ivii) all financial statements delivered to the extent expressly provided herein, certain calculations shall be made on a pro forma basis, and (iii) for the avoidance of doubt, all operating lease expense and other liabilities with respect to leases of the Borrower and its Subsidiaries that would constitute operating leases under GAAP as of the Initial Borrowing Date shall not be included in the calculations of Indebtedness, Capital Expenditures or Consolidated Interest Expense hereunder. The Borrower and the Administrative Agent Agent, on behalf of the Lenders, agree that in accordance with the terms event of any material change in GAAP (any such change, for the purpose of this Agreement Section 13.07, an “Accounting Change”) that occurs after the date of this Agreement, then following the written request of any accounting change of the Borrower, the Administrative Agent or the Required Lenders, the Borrower and the Administrative Agent shall contain a schedule showing enter into good faith negotiations in order to amend such provisions of this Agreement so as to equitably reflect any such Accounting Change with the adjustmentsdesired result that the criteria for evaluating the financial condition of the Borrower and its Subsidiaries shall be the same after such Accounting Change as if such Accounting Change had not been made, and until such time as such an amendment shall have been executed and delivered by the Borrower and the Required Lenders, (a) all financial covenants, standards and terms in any, necessary to reconcile this Agreement shall be calculated and/or construed as if such financial statements with GAAP as in effect immediately prior to such accounting changesAccounting Change had not been made, and (vb) all references in this Agreement the Borrower shall prepare footnotes to a four-Fiscal Quarter period of the Company referring to a period prior to the Effective Date shall refer to the applicable period prior to the Effective Date as if the Company had existed each certificate and the Transaction has occurred on financial statements required to be delivered pursuant to Sections 9.01(a), (b), (c) and (f) that show the first day of said periodmaterial differences between the financial statements delivered (which reflect such Accounting Change) and the basis for calculating financial covenant compliance (without reflecting such Accounting Change).
(b) All computations of interest, Commitment Commission and other Fees hereunder shall be made on the basis of a year of 360 days (except for interest calculated by reference to the Prime Rate in the case of Base Rate LoansLending Rate, which shall be based on a year of 365 or 366 days, as applicable) for the actual number of days (including the first day but excluding the last day; except that in the case of Letter of Credit Fees and Facing Fees, the last day shall be included) occurring in the period for which such interest interest, Commitment Commission or Fees are payable.
(c) Notwithstanding anything to the contrary herein, at any time after an IPO, to the extent that the terms of this Agreement require (i) compliance with any financial ratio or test (including, without limitation, any Fixed Charge Coverage Ratio and/or the amount of Consolidated EBITDA) or (ii) the absence of a Default or Event of Default (or any type of Default or Event of Default) as a condition to (A) the making of any Dividend and/or (B) the making of any Restricted Junior Payment, the determination of whether the relevant condition is satisfied may be made, at the election of the Borrowers, (1) in the case of any Dividend, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (A) the declaration of such Dividend or (B) the making of such Dividend and (2) in the case of any Restricted Junior Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (1) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Junior Payment or (2) the making of such Restricted Junior Payment, in each case, after giving effect to the relevant acquisition, Dividend and/or Restricted Junior Payment on a Pro Forma Basis.
(d) For purposes of determining the permissibility of any action, change, transaction or event that requires a calculation of any financial ratio or test (including, without limitation, Section 10.11, any Fixed Charge Coverage Ratio test and/or the amount of Consolidated EBITDA), such financial ratio or test shall be calculated at the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be, and no Default or Event of Default shall be deemed to have occurred solely as a result of a change in such financial ratio or test occurring after the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be.
(e) Notwithstanding anything to the contrary contained in paragraph (a) above or in the definition of “Capitalized Lease Obligations”, in the event of an accounting change requiring all leases to be capitalized, only those leases (assuming for purposes hereof that such leases were in existence on the date hereof) that would constitute Capitalized Lease Obligations in conformity with GAAP on the date hereof shall be considered Capitalized Lease Obligations, and all calculations and deliverables under this Agreement or any other Credit Document shall be made or delivered, as applicable, in accordance therewith (provided, that together with all financial statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of any such accounting change, the Borrowers shall deliver a schedule showing the adjustments necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting change).
Appears in 1 contract
Calculations; Computations. (a) The All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial statements data (including financial ratios and other financial calculations) required to be furnished submitted pursuant to the Lenders pursuant hereto this Agreement shall be made and prepared in accordance with GAAP consistently applied throughout the periods involved (except as set forth in the notes thereto); providedconformity with, that (i) GAAP, except as otherwise specifically provided prescribed herein, all computations and all definitions .
(including accounting termsb) used in determining compliance with Sections 9.16 and 10 and calculations of the Fixed Charge Coverage Ratio and the First Lien Net Leverage Ratio, shall utilize GAAP and policies in conformity with those used to prepare the Pro Forma Financial Statements (subject to purchase accounting and other adjustments reasonably satisfactory to the Administrative Agent as a result of the Acquisition); provided, that if the Borrowers notify the Administrative Agent that the Borrowers request an amendment to If at any provision hereof to eliminate the effect of time any change occurring in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrowers that the Required Lenders 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 such provision shall be interpreted on the basis of GAAP as would affect the computation of Excess Cash Flow or any financial ratio or financial term or definition set forth in effect any Loan Document and applied immediately before such change becomes effective until such notice shall have been withdrawn or such provision amended in accordance herewith; providedany of Borrower, further, that if such an amendment is requested by the Borrowers Agents or the Required LendersLenders shall so request, then the Borrowers Agents, the Lenders and the Administrative Agent Borrower shall negotiate in good faith to enter into an amendment of the relevant affected provisions amend (without the payment of any amendment or similar fee subject to the approval of Borrower or Required Lenders) such ratio or covenant to preserve the original intent thereof in light of such change in GAAP (or in the application thereofof) GAAP; provided that, until so amended, (i) Excess Cash Flow and such ratio shall continue to be computed in accordance with GAAP prior to such change and (ii) except Borrower shall provide to the Administrative Agent financial statements and other documents required under this Agreement or as otherwise expressly provided herein, for purposes reasonably requested hereunder setting forth a reconciliation between calculations of calculating Excess Cash Flow or such ratio or financial terms, all covenants covenant made before and related definitions, all such calculations shall be based on the operations, assets and results of the Company and its Restricted Subsidiaries on a consolidated basis and shall be made without after giving effect to such change in (or in the operations, assets application of) GAAP as is reasonably necessary to demonstrate the calculation of Excess Cash Flow and compliance (or results of any Unrestricted Subsidiaries, non-compliance) with such ratio.
(iiic) notwithstanding Notwithstanding anything to the contrary contained herein, (i) all covenants financial statements shall be prepared, and financial ratios contained herein or in any other Credit Document the Fixed Charge Coverage Ratio and the Total Net Leverage Ratio shall be calculated, in each case, without giving effect to any election under FASB ASC 825 (or any similar accounting principle) permitting a Person to value its financial liabilities at the fair value thereofthereof or the application of FAS 133, FAS 150 or FAS 123r (iv) all financial statements delivered to the Administrative Agent extent that the pronouncements in accordance with FAS 123r result in recording an equity award as a liability on the terms consolidated balance sheet of this Agreement after Holdings and its Restricted Subsidiaries in the date circumstance where, but for the application of any accounting change shall contain a schedule showing the adjustmentspronouncements, in any, necessary to reconcile such financial statements with GAAP award would have been classified as in effect immediately prior to such accounting changesequity), and (vii) all references to the extent expressly provided herein, certain calculations shall be made on a pro forma basis. For the avoidance of doubt, notwithstanding any changes in this Agreement to a four-Fiscal Quarter period GAAP after the Closing Date that would require lease obligations that would be treated as operating leases as of the Company referring Closing Date to a period prior to the Effective Date shall refer to the applicable period prior to the Effective Date be classified and accounted for as if the Company had existed and the Transaction has occurred Capital Lease Obligations or otherwise reflected on the first day consolidated balance sheet of said periodHoldings and its Restricted Subsidiaries, such obligations shall continue to be excluded from the definition of Indebtedness.
(bd) All computations of interest, Commitment Commission interest and other Fees fees hereunder shall be made on the basis of a year of 360 days (except for interest calculated by reference to the Prime Rate in the case of Base Rate LoansRate, which shall be based on a year of 365 or 366 days, as applicable) for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest or fees are payable.
(c) Notwithstanding anything to the contrary herein, at any time after an IPO, to the extent that the terms of this Agreement require (i) compliance with any financial ratio or test (including, without limitation, any Fixed Charge Coverage Ratio and/or the amount of Consolidated EBITDA) or (ii) the absence of a Default or Event of Default (or any type of Default or Event of Default) as a condition to (A) the making of any Dividend and/or (B) the making of any Restricted Junior Payment, the determination of whether the relevant condition is satisfied may be made, at the election of the Borrowers, (1) in the case of any Dividend, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (A) the declaration of such Dividend or (B) the making of such Dividend and (2) in the case of any Restricted Junior Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (1) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Junior Payment or (2) the making of such Restricted Junior Payment, in each case, after giving effect to the relevant acquisition, Dividend and/or Restricted Junior Payment on a Pro Forma Basis.
(d) For purposes of determining the permissibility of any action, change, transaction or event that requires a calculation of any financial ratio or test (including, without limitation, Section 10.11, any Fixed Charge Coverage Ratio test and/or the amount of Consolidated EBITDA), such financial ratio or test shall be calculated at the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be, and no Default or Event of Default shall be deemed to have occurred solely as a result of a change in such financial ratio or test occurring after the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be.
(e) Notwithstanding anything to the contrary contained in paragraph (a) above or in the definition of “Capitalized Lease Obligations”, in the event of an accounting change requiring all leases to be capitalized, only those leases (assuming for purposes hereof that such leases were in existence on the date hereof) that would constitute Capitalized Lease Obligations in conformity with GAAP on the date hereof shall be considered Capitalized Lease Obligations, and all calculations and deliverables under this Agreement or any other Credit Document shall be made or delivered, as applicable, in accordance therewith (provided, that together with all financial statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of any such accounting change, the Borrowers shall deliver a schedule showing the adjustments necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting change).
Appears in 1 contract
Sources: First Lien Term Loan Credit and Guarantee Agreement (Alden Global Capital LLC)
Calculations; Computations. (a) The financial statements to be furnished to the Lenders pursuant hereto shall be made and prepared in accordance with GAAP generally accepted accounting principles in the United States consistently applied throughout the periods involved (except as set forth in the notes theretothereto or as otherwise disclosed in writing by the Borrower to the Lenders and except that monthly and quarterly financial statements may not include notes and are subject to year-end adjustments); providedprovided that, that (i) except as otherwise specifically provided herein, all computations of Excess Cash Flow and all definitions (including accounting terms) used in computations determining compliance with Sections 9.16 and 10 and calculations of the Fixed Charge Coverage Ratio 9.07 through 9.12, inclusive, and the First Lien Net Leverage Ratio, Applicable Margin shall utilize GAAP accounting principles and policies in conformity with those used to prepare the Pro Forma Financial Statements (subject to purchase accounting and other adjustments reasonably satisfactory to the Administrative Agent as a result of the Acquisition); provided, that if the Borrowers notify the Administrative Agent that the Borrowers request an amendment to any provision hereof to eliminate the effect of any change occurring in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrowers that the Required Lenders 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 such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change becomes effective until such notice shall have been withdrawn or such provision amended in accordance herewith; provided, further, that if such an amendment is requested by the Borrowers or the Required Lenders, then the Borrowers and the Administrative Agent shall negotiate in good faith to enter into an amendment of the relevant affected provisions (without the payment of any amendment or similar fee to the Lenders) to preserve the original intent thereof in light of such change in GAAP or the application thereof, (ii) except as otherwise expressly provided herein, for purposes of calculating financial terms, all covenants and related definitions, all such calculations shall be based on the operations, assets and results of the Company and its Restricted Subsidiaries on a consolidated basis and shall be made without giving effect to the operations, assets or results of any Unrestricted Subsidiaries, (iii) notwithstanding anything to the contrary contained herein, all covenants and financial ratios contained herein or in any other Credit Document shall be calculated, in each case, without giving effect to any election under FASB ASC 825 (or any similar accounting principle) permitting a Person to value its financial liabilities at the fair value thereof, (iv) all historical financial statements delivered to the Administrative Agent in accordance Lenders pursuant to Section 7.05(a) (with the foregoing generally accepted accounting principles, subject to the preceding proviso, herein called "GAAP"). In the event of any changes ("Accounting Changes") in accounting principles required by the promulgation of any rule, regulation, pronouncement or opinion of the Financial Accounting Standards Board of the American Institute of Certified Public Accountants or, if applicable, the SEC, if such Accounting Changes result in a change in the method of calculation of financial covenants, standards or terms of this Agreement, then the Borrower and the Administrative Agent agree to enter into negotiations in order to amend such provisions of this Agreement so as to equitably reflect such Accounting Changes with the desired result that the criteria for evaluating the Borrower's financial condition shall be the same after such Accounting Changes as if such Accounting Changes had not been made. Until such time as such an amendment shall have been executed and delivered by the date of any accounting change shall contain a schedule showing Borrower, the adjustmentsAdministrative Agent and the Required Lenders, in any, necessary to reconcile such all financial statements with GAAP as in effect immediately prior to such accounting changes, covenants standards and (v) all references terms in this Agreement shall continue to a four-Fiscal Quarter period of the Company referring to a period prior to the Effective Date shall refer to the applicable period prior to the Effective Date be calculated as if the Company such Accounting Changes had existed and the Transaction has occurred on the first day of said periodnot occurred.
(b) All computations of interestinterest payable at the Eurodollar Rate, Commitment Commission and other Fees hereunder shall be made on the basis of a year of 360 days for the actual number of days (except for interest calculated by reference to including the Prime Rate first day but excluding the last day) occurring in the case period for -136- 143 which such interest, Commitment Commission or Fees are payable. All computations of interest payable at the Base Rate Loans, which shall be based made on the basis on a year of 365 (or 366 days366, as applicable) days for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest are is payable.
(c) Notwithstanding anything to the contrary herein, at any time after an IPO, to the extent that the terms of this Agreement require (i) compliance with any financial ratio or test (including, without limitation, any Fixed Charge Coverage Ratio and/or the amount of Consolidated EBITDA) or (ii) the absence of a Default or Event of Default (or any type of Default or Event of Default) as a condition to (A) the making of any Dividend and/or (B) the making of any Restricted Junior Payment, the determination of whether the relevant condition is satisfied may be made, at the election of the Borrowers, (1) in the case of any Dividend, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (A) the declaration of such Dividend or (B) the making of such Dividend and (2) in the case of any Restricted Junior Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (1) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Junior Payment or (2) the making of such Restricted Junior Payment, in each case, after giving effect to the relevant acquisition, Dividend and/or Restricted Junior Payment on a Pro Forma Basis.
(d) For purposes of determining the permissibility of any action, change, transaction or event that requires a calculation of any financial ratio or test (including, without limitation, Section 10.11, any Fixed Charge Coverage Ratio test and/or the amount of Consolidated EBITDA), such financial ratio or test shall be calculated at the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be, and no Default or Event of Default shall be deemed to have occurred solely as a result of a change in such financial ratio or test occurring after the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be.
(e) Notwithstanding anything to the contrary contained in paragraph (a) above or in the definition of “Capitalized Lease Obligations”, in the event of an accounting change requiring all leases to be capitalized, only those leases (assuming for purposes hereof that such leases were in existence on the date hereof) that would constitute Capitalized Lease Obligations in conformity with GAAP on the date hereof shall be considered Capitalized Lease Obligations, and all calculations and deliverables under this Agreement or any other Credit Document shall be made or delivered, as applicable, in accordance therewith (provided, that together with all financial statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of any such accounting change, the Borrowers shall deliver a schedule showing the adjustments necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting change).
Appears in 1 contract
Calculations; Computations. (a) The financial statements to be furnished to the Lenders pursuant hereto shall be made and prepared in accordance with GAAP consistently applied throughout the periods involved (except as set forth in the notes thereto)effect from time to time; provided, that (i) except as otherwise specifically provided herein, all computations and all definitions (including accounting terms) used in determining compliance with Sections 9.16 and 10 and calculations of the Fixed Charge Coverage Ratio and the First Lien Net Leverage Ratio, shall utilize GAAP and policies in conformity with those used to prepare the Pro Forma Financial Statements (subject to purchase accounting and other adjustments reasonably satisfactory to the Administrative Agent as a result of the Acquisition); provided, that if the Borrowers notify Company notifies the Administrative Agent that the Borrowers request it requests an amendment to any provision hereof to eliminate the effect of any change occurring in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrowers Company that the Required Lenders 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 such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change becomes shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith; provided. The Company shall have the right, furtherif required by relevant regulatory authorities, that if such an amendment is requested to adopt the International Financial Reporting Standards, as promulgated by the Borrowers International Accounting Standards Board (or any successor board or agency), as in effect on the Required Lenders, then the Borrowers and the Administrative Agent shall negotiate in good faith to enter into an amendment date of the relevant affected provisions (without the payment of any amendment or similar fee to the Lenders) to preserve the original intent thereof in light of such change in GAAP or the application thereofelection, (ii) except as otherwise expressly provided hereinwhich election shall, for purposes of calculating financial termsthis Agreement, all covenants and related definitions, all such calculations shall be based on the operations, assets and results of the Company and its Restricted Subsidiaries on treated as a consolidated basis permitted change in GAAP and shall be made without giving effect subject to the operations, assets or results terms of the immediately preceding sentence. Notwithstanding any Unrestricted Subsidiaries, (iii) notwithstanding anything to the contrary other provision contained herein, all covenants and terms of an accounting or financial ratios contained nature used herein or in any other Credit Document shall be calculatedconstrued, in each caseand all computations of amounts and ratios referred to herein shall be made, without giving effect to any election under FASB (i) Statement of Financial Accounting Standards 141R or ASC 825 805 (or any other financial accounting standard having a similar result or effect) and (ii) Financial Accounting Standards Board Accounting Standards Codification 825 and Financial Accounting Standards Board Accounting Standards Codification 470-20 on financial liabilities. Notwithstanding any other provision contained herein, any lease which was (or would have been) classified as an operating lease under the Company’s accounting principle) permitting a Person to value its financial liabilities at the fair value thereof, (iv) all financial statements delivered to the Administrative Agent treatment thereof in accordance with the terms of this Agreement after the date of any accounting change shall contain a schedule showing the adjustments, in any, necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting changeson the date of the Existing Credit Agreement shall not constitute a capital lease under this Agreement, and the obligations or liabilities thereunder shall not constitute capitalized lease obligations under this Agreement, notwithstanding any changes in GAAP (vor the required implementation of any previously promulgated changes in GAAP) all references in this Agreement subsequent to a four-Fiscal Quarter period the date of the Company referring to a period prior Existing Credit Agreement (whether before or after the Closing Date) relating to the Effective Date shall refer to the applicable period prior to the Effective Date treatment of a lease as if the Company had existed and the Transaction has occurred on the first day of said periodan operating lease or capitalized lease.
(b) All computations of interest, Commitment Commission and other Fees hereunder shall be made on the basis of a year of 360 days (except for interest calculated by reference to the Prime Rate in the case of Base Rate Loans, which shall be based on a year of 365 or 366 days, as applicable) for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest are payable.
(c) Notwithstanding anything to the contrary herein, at any time after an IPO, to the extent that the terms of this Agreement require (i) compliance with any financial ratio or test (including, without limitation, any Fixed Charge Coverage Ratio and/or the amount of Consolidated EBITDA) or (ii) the absence of a Default or Event of Default (or any type of Default or Event of Default) as a condition to (A) the making of any Dividend and/or (B) the making of any Restricted Junior Payment, the determination of whether the relevant condition is satisfied may be made, at the election of the Borrowers, (1) in the case of any Dividend, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (A) the declaration of such Dividend or (B) the making of such Dividend and (2) in the case of any Restricted Junior Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (1) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Junior Payment or (2) the making of such Restricted Junior Payment, in each case, after giving effect to the relevant acquisition, Dividend and/or Restricted Junior Payment on a Pro Forma Basis.
(d) For purposes of determining the permissibility of any action, change, transaction or event that requires a The calculation of any financial ratio or test (including, without limitation, Section 10.11, any Fixed Charge Coverage Ratio test and/or the amount of Consolidated EBITDA), such financial ratio or test ratios under this Agreement shall be calculated at by dividing the time appropriate component by the other component, carrying the result to one place more than the number of places by which such action ratio is taken, such change is made, such transaction is consummated expressed herein and rounding the result up or such event occurs, as the case may be, and no Default or Event of Default shall be deemed to have occurred solely as a result of a change in such financial ratio or test occurring after the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be.
(e) Notwithstanding anything down to the contrary contained in paragraph nearest number (a) above or in the definition of “Capitalized Lease Obligations”, in the event of an accounting change requiring all leases to be capitalized, only those leases (assuming for purposes hereof that such leases were in existence on the date hereof) that would constitute Capitalized Lease Obligations in conformity with GAAP on the date hereof shall be considered Capitalized Lease Obligations, and all calculations and deliverables under this Agreement or any other Credit Document shall be made or delivered, as applicable, in accordance therewith (provided, that together with all financial statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of any such accounting change, the Borrowers shall deliver a schedule showing the adjustments necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting changerounding-down if there is no nearest number).
Appears in 1 contract
Calculations; Computations. (a) The financial statements to be furnished to the Lenders pursuant hereto shall be made and prepared in accordance with GAAP consistently applied throughout the periods involved (except as set forth in the notes thereto); provided, that that, (i) except as otherwise specifically provided herein, all computations and all definitions (including accounting terms) used in determining compliance with Sections 9.16 2.15, 8.13 and 10 9 and calculations of the Fixed Charge Coverage Ratio and the First Lien Net Leverage Ratio, Secured Net Leverage Ratio and Total Net Leverage Ratio, shall utilize GAAP and policies in conformity with those used to prepare the Pro Forma Financial Statements (subject to purchase accounting and other adjustments reasonably satisfactory to the Administrative Agent as a result of the Acquisition)GAAP; provided, that if the Borrowers notify Borrower notifies the Administrative Agent that the Borrowers request Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrowers Borrower that the Required Lenders 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 such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change becomes effective until such notice shall have been withdrawn or such provision amended in accordance herewith; provided, further, that if such an amendment is requested by the Borrowers Borrower or the Required Lenders, then the Borrowers Borrower and the Administrative Agent shall negotiate in good faith to enter into an amendment of the relevant affected provisions (without the payment of any amendment or similar fee to the Lenders) to preserve the original intent thereof in light of such change in GAAP or the application thereof, (ii) except as otherwise expressly provided herein, for purposes of calculating financial terms, all covenants and related definitions, all such calculations shall be based on the operations, assets and results of the Company Borrower and its Restricted Subsidiaries on a consolidated basis and shall be made without giving effect to the operations, assets or results of any Unrestricted Subsidiariesbasis, (iii) notwithstanding anything to the contrary contained herein, all covenants and financial ratios contained herein or in any other Credit Document shall be calculated, in each case, without giving effect to any election under FASB ASC 825 (or any similar accounting principle) permitting a Person to value its financial liabilities at the fair value thereof, and (iv) all financial statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of any accounting change shall contain a schedule showing the adjustments, in if any, necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting changes, and (v) all references in this Agreement to a four-Fiscal Quarter period of the Company referring to a period prior to the Effective Date shall refer to the applicable period prior to the Effective Date as if the Company had existed and the Transaction has occurred on the first day of said period.
(b) All computations of interest, Commitment Commission interest and other Fees hereunder shall be made on the basis of a year of 360 days (except for interest calculated by reference to the Prime Rate in the case of Base Rate Loans, which shall be based on a year of 365 or 366 days, as applicable) for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest are payable.
(c) Notwithstanding anything to the contrary herein, at any time after an IPO, to the extent that the terms of this Agreement require (i) compliance with any financial ratio or test (including, without limitation, Section 9.11(a), any Fixed Charge Coverage First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, any Total Net Leverage Ratio test and/or the amount of Consolidated EBITDA) or (ii) the absence of a Default or Event of Default (or any type of Default or Event of Default) as a condition to (A) the making of any Dividend and/or (B) the making of any Restricted Junior Payment, the determination of whether the relevant condition is satisfied may be made, at the election of the BorrowersBorrower, (1) in the case of any Dividend, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (Ax) the declaration of such Dividend or (By) the making of such Dividend and (2) in the case of any Restricted Junior Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (1x) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Junior Payment or (2y) the making of such Restricted Junior Payment, in each case, after giving effect to the relevant acquisition, Dividend and/or Restricted Junior Payment on a Pro Forma Basis.
(d) For purposes of determining the permissibility of any action, change, transaction or event that requires a calculation of any financial ratio or test (including, without limitation, Section 10.119.11(a), any Fixed Charge Coverage First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, any Total Net Leverage Ratio test and/or the amount of Consolidated EBITDA), such financial ratio or test shall be calculated at the time such action is takentaken (subject to clause (c) above), such change is made, such transaction is consummated or such event occurs, as the case may be, and no Default or Event of Default shall be deemed to have occurred solely as a result of a change in such financial ratio or test occurring after the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be.
(e) [Reserved].
(f) Notwithstanding anything to the contrary contained in paragraph (a) above or in the definition of “Capitalized Lease Obligations”, in the event of an accounting change requiring all leases to be capitalized, only those leases (assuming for purposes hereof that such leases were in existence on the date hereof) that would constitute Capitalized Lease Obligations in conformity with GAAP on the date hereof shall be considered Capitalized Lease Obligations, and all calculations and deliverables under this Agreement or any other Credit Document shall be made or delivered, as applicable, in accordance therewith (provided, provided that together with all financial statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of any such accounting change, the Borrowers Borrower shall deliver a schedule showing the adjustments necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting change).
Appears in 1 contract
Calculations; Computations. (a) The financial statements to be furnished to the Lenders pursuant hereto shall be made and prepared in accordance with GAAP consistently applied throughout the periods involved (except as set forth in the notes theretothereto or as otherwise disclosed in writing by Holdings to the Lenders); providedprovided that, that (i) except as otherwise specifically provided herein, all computations of Excess Cash Flow and all computations and all definitions (including accounting terms) used in determining compliance with Section 10.16 and Sections 9.16 and 10 and calculations of the Fixed Charge Coverage Ratio and the First Lien Net Leverage Ratio11.07 through 11.10, inclusive, shall utilize GAAP and policies in conformity with those used to prepare the Pro Forma Financial Statements (subject audited financial statements of Holdings referred to purchase accounting and other adjustments reasonably satisfactory to in Section 9.05(a) for the Administrative Agent as a result of the Acquisition); providedfiscal year ended December 31, that if the Borrowers notify the Administrative Agent that the Borrowers request an amendment to any provision hereof to eliminate the effect of any change occurring in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrowers that the Required Lenders 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 such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change becomes effective until such notice shall have been withdrawn or such provision amended in accordance herewith; provided, further, that if such an amendment is requested by the Borrowers or the Required Lenders, then the Borrowers and the Administrative Agent shall negotiate in good faith to enter into an amendment of the relevant affected provisions (without the payment of any amendment or similar fee to the Lenders) to preserve the original intent thereof in light of such change in GAAP or the application thereof2014, (ii) except as otherwise expressly provided herein, for purposes of calculating financial terms, all covenants and related definitions, all such calculations shall be based on the operations, assets and results of the Company and its Restricted Subsidiaries on a consolidated basis and shall be made without giving effect to the operations, assets or results of any Unrestricted Subsidiaries, (iii) notwithstanding anything to the contrary contained herein, all such financial statements shall be prepared, and all financial covenants and financial ratios contained herein or in any other Credit Document shall be calculated, in each case, without giving effect to any election under FASB ASC 825 Statement of Financial Accounting Standards 159 (or any similar accounting principle) permitting permitted a Person to value its financial liabilities at the fair value thereof, thereof and (iviii) all financial statements delivered to the Administrative Agent extent expressly provided herein, certain calculations shall be made on a Pro Forma Basis. In the event of any change in accordance with GAAP (any such change, for the terms purpose of this Agreement Section 14.07, an “Accounting Change”) that occurs after the date of this Agreement, then the Credit Parties and the Administrative Agent, on behalf of the Lenders, agree to enter into good faith negotiations in order to amend such provisions of this Agreement so as to equitably reflect any accounting change such Accounting Change with the desired result that the criteria for evaluating the financial condition of Holdings and its Subsidiaries shall contain a schedule showing be the adjustmentssame after such Accounting Change as if such Accounting Change had not been made, and until such time as such an amendment shall have been executed and delivered by the Credit Parties and Required Lenders, (i) all financial covenants, standards and terms in any, necessary to reconcile this Agreement shall be calculated and/or construed as if such financial statements with GAAP as in effect immediately prior to such accounting changesAccounting Change had not been made, and (vii) all references in this Agreement Holdings shall prepare footnotes to a four-Fiscal Quarter period of the Company referring to a period prior to the Effective Date shall refer to the applicable period prior to the Effective Date as if the Company had existed each certificate and the Transaction has occurred on financial statements required to be delivered pursuant to Sections 10.01(a), (b), (c), and (g) hereunder that show the first day of said perioddifferences between the financial statements delivered (which reflect such Accounting Change) and the basis for calculating financial covenant compliance (without reflecting such Accounting Change).
(b) All computations of interest, Commitment Commission and other Fees hereunder shall be made on the basis of a year of 360 days (except for interest calculated by reference to the Prime Rate in the case of Base Rate Loans, which shall be based on a year of 365 or 366 days, as applicable) for the actual number of days (including the first day but excluding the last day; except that in the case of Letter of Credit Fees and Facing Fees, the last day shall be included) occurring in the period for which such interest interest, Commitment Commission or Fees are payable.
(c) Notwithstanding anything to the contrary herein, at any time after an IPO, to the extent that the terms of this Agreement require (i) compliance with any financial ratio or test (including, without limitation, any Fixed Charge Coverage Ratio and/or the amount of Consolidated EBITDA) or (ii) the absence of a Default or Event of Default (or any type of Default or Event of Default) as a condition to (A) the making of any Dividend and/or (B) the making of any Restricted Junior Payment, the determination of whether the relevant condition is satisfied may be made, at the election of the Borrowers, (1) in the case of any Dividend, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (A) the declaration of such Dividend or (B) the making of such Dividend and (2) in the case of any Restricted Junior Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (1) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Junior Payment or (2) the making of such Restricted Junior Payment, in each case, after giving effect to the relevant acquisition, Dividend and/or Restricted Junior Payment on a Pro Forma Basis.
(d) For purposes of determining the permissibility of any action, change, transaction or event that requires a calculation of any financial ratio or test (including, without limitation, Section 10.11, any Fixed Charge Coverage Ratio test and/or the amount of Consolidated EBITDA), such financial ratio or test shall be calculated at the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be, and no Default or Event of Default shall be deemed to have occurred solely as a result of a change in such financial ratio or test occurring after the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be.
(e) Notwithstanding anything to the contrary contained in paragraph (a) above or in the definition of “Capitalized Lease Obligations”, in the event of an accounting change requiring all leases to be capitalized, only those leases (assuming for purposes hereof that such leases were in existence on the date hereof) that would constitute Capitalized Lease Obligations in conformity with GAAP on the date hereof shall be considered Capitalized Lease Obligations, and all calculations and deliverables under this Agreement or any other Credit Document shall be made or delivered, as applicable, in accordance therewith (provided, that together with all financial statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of any such accounting change, the Borrowers shall deliver a schedule showing the adjustments necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting change).
Appears in 1 contract
Sources: Credit Agreement (STG Group, Inc.)
Calculations; Computations. (a) The financial statements to be furnished to the Lenders pursuant hereto shall be made and prepared in accordance with GAAP consistently applied throughout the periods involved (except as set forth in the notes theretothereto or as otherwise disclosed in writing by the Borrower to the Lenders); provided, PROVIDED that (ix) except as otherwise specifically provided herein, all computations of Excess Cash Flow and all definitions (including accounting terms) used in computations determining compliance with Sections 9.16 8.11 and 10 and calculations of the Fixed Charge Coverage Ratio and the First Lien Net Leverage Ratio8.12, including definitions used therein, shall utilize GAAP accounting principles and policies in effect at the time of the preparation of, and in conformity with those used to prepare prepare, the Pro Forma Financial Statements (subject to purchase accounting and other adjustments reasonably satisfactory historical financial statements of the Rexnord Business delivered to the Administrative Agent Lenders pursuant to Section 6.10(b) and (y) if, as a result of any change after the Acquisition); providedEffective Date in GAAP, that if any change in such accounting principles and policies used in the Borrowers notify preparation of such financial statements occurs, then, following the request of the Borrower, or the Administrative Agent that the Borrowers request an amendment to any provision hereof to eliminate the effect of any change occurring in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrowers that the Required Lenders 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 such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change becomes effective until such notice shall have been withdrawn or such provision amended in accordance herewith; provided, further, that if such an amendment is requested by the Borrowers or the Required Lenders, then the Borrowers and the Administrative Agent parties hereto shall negotiate in good faith to enter into an amendment of the relevant affected provisions (without the payment of any amendment or similar fee modifications to the Lenders) definitions, covenants and other provisions of this Agreement relating to preserve the original intent thereof financial covenant calculations required to be made under this Agreement in light order to reflect the impact and the projected impact of such change in GAAP or the application thereof, (ii) except as otherwise expressly provided herein, for purposes of calculating financial terms, all covenants and related definitions, all such calculations shall be based on the operations, assets consolidated financial position and results of the Company operations of Holdings and its Restricted Subsidiaries on a consolidated basis (and if an amendment to this Agreement is entered into as contemplated above in this clause (y), then from and after the date thereof the computations pursuant to preceding clause (x) of this proviso shall be made without giving in conformity with the accounting principles and policies referenced in preceding clause (x), but adjusted to give effect to the operations, assets changes to GAAP made after the Effective Date and on or results of any Unrestricted Subsidiaries, (iii) notwithstanding anything prior to the contrary contained herein, all covenants and financial ratios contained herein or in any other Credit Document shall be calculated, in each case, without giving effect to any election under FASB ASC 825 (or any similar accounting principle) permitting a Person to value its financial liabilities at the fair value thereof, (iv) all financial statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of the respective such amendment), PROVIDED FURTHER, that until such time as any accounting change shall contain a schedule showing the adjustments, in any, necessary to reconcile such financial statements with GAAP modifications have become effective as in effect immediately prior to such accounting changes, and contemplated by clause (vy) all references in this Agreement to a four-Fiscal Quarter period of the Company referring to a period prior to immediately preceding proviso, if there has been any change after the Effective Date shall refer (or the date of the last amendment effected pursuant to clause (y) of the immediately preceding proviso) in GAAP, then the financial statements furnished to the applicable period prior Lenders pursuant hereto shall be accompanied by reconciliation worksheets showing the information required to determine compliance with the Effective Date as if provisions referenced in clause (x) of the Company had existed and the Transaction has occurred on the first day of said periodimmediately preceding proviso.
(b) All computations of interest, Commitment Commission and other Fees hereunder shall be made on the basis of a year of 360 days (except for interest calculated by reference to the Prime Rate or 365/366 days in the case of interest on Base Rate Loans, which shall be Loans based on a year of 365 or 366 days, as applicablethe Prime Lending Rate) for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest are payabledays.
(c) Notwithstanding anything to the contrary herein, at any time after an IPO, to the extent that the terms of this Agreement require (i) compliance with any financial ratio or test (including, without limitation, any Fixed Charge Coverage Ratio and/or the amount of Consolidated EBITDA) or (ii) the absence of a Default or Event of Default (or any type of Default or Event of Default) as a condition to (A) the making of any Dividend and/or (B) the making of any Restricted Junior Payment, the determination of whether the relevant condition is satisfied may be made, at the election of the Borrowers, (1) in the case of any Dividend, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (A) the declaration of such Dividend or (B) the making of such Dividend and (2) in the case of any Restricted Junior Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (1) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Junior Payment or (2) the making of such Restricted Junior Payment, in each case, after giving effect to the relevant acquisition, Dividend and/or Restricted Junior Payment on a Pro Forma Basis.
(d) For purposes of determining the permissibility of any action, change, transaction or event that requires a calculation of any financial ratio or test (including, without limitation, Section 10.11, any Fixed Charge Coverage Ratio test and/or the amount of Consolidated EBITDA), such financial ratio or test shall be calculated at the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be, and no Default or Event of Default shall be deemed to have occurred solely as a result of a change in such financial ratio or test occurring after the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be.
(e) Notwithstanding anything to the contrary contained in paragraph (a) above or in the definition of “Capitalized Lease Obligations”, in the event of an accounting change requiring all leases to be capitalized, only those leases (assuming for purposes hereof that such leases were in existence on the date hereof) that would constitute Capitalized Lease Obligations in conformity with GAAP on the date hereof shall be considered Capitalized Lease Obligations, and all calculations and deliverables under this Agreement or any other Credit Document shall be made or delivered, as applicable, in accordance therewith (provided, that together with all financial statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of any such accounting change, the Borrowers shall deliver a schedule showing the adjustments necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting change).
Appears in 1 contract
Calculations; Computations. (a) The financial statements to be furnished to the Lenders pursuant hereto shall be made and prepared in accordance with GAAP consistently applied throughout the periods involved (except as set forth in the notes thereto); provided, that that, (i) except as otherwise specifically provided herein, all computations and all definitions (including accounting terms) used in determining compliance with Sections 9.16 2.15, 8.13 and 10 9 and calculations of the Fixed Charge Coverage Ratio and the First Lien Net Leverage Ratio, Secured Net Leverage Ratio and Total Net Leverage Ratio, shall utilize GAAP and policies in conformity with those used to prepare the Pro Forma Financial Statements (subject to purchase accounting and other adjustments reasonably satisfactory to the Administrative Agent as a result of the Acquisition)GAAP; provided, that if the Borrowers notify Borrower notifies the Administrative Agent that the Borrowers request Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrowers Borrower that the Required Lenders 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 such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change becomes effective until such notice shall have been withdrawn or such provision amended in accordance herewith; provided, further, that if such an amendment is requested by the Borrowers Borrower or the Required Lenders, then the Borrowers Borrower and the Administrative Agent shall negotiate in good faith to enter into an amendment of the relevant affected provisions (without the payment of any amendment or similar fee to the Lenders) to preserve the original intent thereof in light of such change in GAAP or the application thereof, (ii) except as otherwise expressly provided herein, for purposes of calculating financial terms, all covenants and related definitions, all such calculations shall be based on the operations, assets and results of the Company Borrower and its Restricted Subsidiaries on a consolidated basis and shall be made without giving effect to the operations, assets or results of any Unrestricted Subsidiariesbasis, (iii) notwithstanding anything to the contrary contained herein, all covenants and financial ratios contained herein or in any other Credit Document shall be calculated, in each case, without giving effect to any election under FASB ASC 825 (or any similar accounting principle) permitting a Person to value its financial liabilities at the fair value thereof, (iv) all financial statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of any accounting change shall contain a schedule showing the adjustments, in if any, necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting changes, and (v) all references in this Agreement to a four-Fiscal Quarter period of the Company Borrower referring to a period prior to the Effective Closing Date shall refer to the applicable period prior to the Effective Closing Date as if the Company Borrower had existed and the Transaction has occurred on the first day of said period.
(b) All computations of interest, Commitment Commission interest and other Fees hereunder shall be made on the basis of a year of 360 days (except for interest calculated by reference to the Prime Rate in the case of Base Rate Loans, which shall be based on a year of 365 or 366 days, as applicable) for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest are payable.
(c) Notwithstanding anything to the contrary herein, at any time after an IPO, to the extent that the terms of this Agreement require (i) compliance with any financial ratio or test (including, without limitation, Section 9.11(a), any Fixed Charge Coverage First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, any Total Net Leverage Ratio test and/or the amount of Consolidated EBITDA) or (ii) the absence of a Default or Event of Default (or any type of Default or Event of Default) as a condition to (A) the making of any Dividend and/or (B) the making of any Restricted Junior Payment, the determination of whether the relevant condition is satisfied may be made, at the election of the BorrowersBorrower, (1) in the case of any Dividend, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (Ax) the declaration of such Dividend or (By) the making of such Dividend and (2) in the case of any Restricted Junior Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (1x) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Junior Payment or (2y) the making of such Restricted Junior Payment, in each case, after giving effect to the relevant acquisition, Dividend and/or Restricted Junior Payment on a Pro Forma Basis.
(d) For purposes of determining the permissibility of any action, change, transaction or event that requires a calculation of any financial ratio or test (including, without limitation, Section 10.119.11(a), any Fixed Charge Coverage First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, any Total Net Leverage Ratio test and/or the amount of Consolidated EBITDA), such financial ratio or test shall be calculated at the time such action is takentaken (subject to clause (c) above), such change is made, such transaction is consummated or such event occurs, as the case may be, and no Default or Event of Default shall be deemed to have occurred solely as a result of a change in such financial ratio or test occurring after the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be.
(e) Notwithstanding anything to the contrary contained in paragraph (a) above or in the definition of “Capitalized Lease Obligations”, in the event of an accounting change requiring all leases to be capitalized, only those leases (assuming for purposes hereof that such leases were in existence on the date hereof) that would constitute Capitalized Lease Obligations in conformity with GAAP on the date hereof shall be considered Capitalized Lease Obligations, and all calculations and deliverables under this Agreement or any other Credit Document shall be made or delivered, as applicable, in accordance therewith (provided, that together with all financial statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of any such accounting change, the Borrowers shall deliver a schedule showing the adjustments necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting change)[Reserved].
Appears in 1 contract
Calculations; Computations. (a) The financial statements to -------------------------- be furnished to the Lenders Banks pursuant hereto shall be made and prepared in accordance with GAAP consistently applied throughout the periods involved (except as set forth in the notes theretothereto or as otherwise disclosed in writing by the Borrower to the Banks); provided, that (i) provided that, except as otherwise specifically -------- provided herein, all computations and all definitions (including accounting terms) used in determining compliance with Sections 9.16 and 10 and calculations of the Fixed Charge Coverage Ratio and the First Lien Net Leverage RatioSection 8, including definitions used therein, shall utilize GAAP accounting principles and policies pol- icies in effect at the time of the preparation of, and in conformity with those used to prepare prepare, the Pro Forma Financial Statements (subject to purchase accounting and other adjustments reasonably satisfactory to the Administrative Agent as a result of the Acquisition); provided, that if the Borrowers notify the Administrative Agent that the Borrowers request an amendment to any provision hereof to eliminate the effect of any change occurring in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrowers that the Required Lenders 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 such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change becomes effective until such notice shall have been withdrawn or such provision amended in accordance herewith; provided, further, that if such an amendment is requested by the Borrowers or the Required Lenders, then the Borrowers and the Administrative Agent shall negotiate in good faith to enter into an amendment of the relevant affected provisions (without the payment of any amendment or similar fee to the Lenders) to preserve the original intent thereof in light of such change in GAAP or the application thereof, (ii) except as otherwise expressly provided herein, for purposes of calculating financial terms, all covenants and related definitions, all such calculations shall be based on the operations, assets and results of the Company and its Restricted Subsidiaries on a consolidated basis and shall be made without giving effect to the operations, assets or results of any Unrestricted Subsidiaries, (iii) notwithstanding anything to the contrary contained herein, all covenants and financial ratios contained herein or in any other Credit Document shall be calculated, in each case, without giving effect to any election under FASB ASC 825 (or any similar accounting principle) permitting a Person to value its financial liabilities at the fair value thereof, (iv) all historical financial statements delivered to the Administrative Agent Banks pursuant to Section 6.09, provided that in accordance with the terms event GAAP shall be modified from -------- that in effect at the time of this Agreement after the date preparation of any accounting change such financial statements, the Borrower shall contain a schedule showing be entitled to utilize GAAP, as so modified, for purposes of such computations to the extent that (x) the Borrower gives the Banks 30 days' prior written notice of such proposed modification and (y) prior thereto the Borrower and the Majority SMA shall have agreed upon adjustments, in if any, necessary to reconcile Sections 8.03(e), 8.04(h), 8.05, 8.07, 8.08, 8.09 and 8.10 (and the definitions used therein) the sole purpose of which shall be to give effect to such proposed change (it being understood and agreed that to the extent that the Borrower and the Majority SMA cannot agree on appropriate adjustments to such Sections (or that no adjustments are necessary), the proposed change may not be effected), and provided further, (i) that if at any time the computations determining ---------------- compliance with Section 8 utilize accounting principles different from those utilized in the financial statements furnished to the Banks, such financial statements with GAAP as in effect immediately prior to such accounting changes, shall be accompanied by reconciliation work-sheets and (vii) all references in this Agreement the event that the Indebtedness and related receivables under the Hanover Facility or under any Replacement Receivables Facility are no longer given off-balance sheet treatment, any such Indebtedness, the interest expense or discount thereon and related receivables under the Hanover Facility or any Replacement Receivables Facility shall continue to a fourreceive off-Fiscal Quarter period balance sheet treatment for purposes of the Company referring to a period prior to the Effective Date shall refer to the applicable period prior to the Effective Date as if the Company had existed and the Transaction has occurred on the first day of said perioddetermining compliance with Section 8.
(b) All computations of interest, Commitment Commission interest and other Fees hereunder shall be made on the basis actual number of days elapsed over a year of 360 days (except for interest calculated by reference to the Prime Rate in the case of Base Rate Loans, which shall be based on a year of 365 or 366 days, as applicable) for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest are payable.
(c) Notwithstanding anything to the contrary herein, at any time after an IPO, to the extent that the terms of this Agreement require (i) compliance with any financial ratio or test (including, without limitation, any Fixed Charge Coverage Ratio and/or the amount of Consolidated EBITDA) or (ii) the absence of a Default or Event of Default (or any type of Default or Event of Default) as a condition to (A) the making of any Dividend and/or (B) the making of any Restricted Junior Payment, the determination of whether the relevant condition is satisfied may be made, at the election of the Borrowers, (1) in the case of any Dividend, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (A) the declaration of such Dividend or (B) the making of such Dividend and (2) in the case of any Restricted Junior Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (1) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Junior Payment or (2) the making of such Restricted Junior Payment, in each case, after giving effect to the relevant acquisition, Dividend and/or Restricted Junior Payment on a Pro Forma Basis.
(d) For purposes of determining the permissibility of any action, change, transaction or event that requires a calculation of any financial ratio or test (including, without limitation, Section 10.11, any Fixed Charge Coverage Ratio test and/or the amount of Consolidated EBITDA), such financial ratio or test shall be calculated at the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be, and no Default or Event of Default shall be deemed to have occurred solely as a result of a change in such financial ratio or test occurring after the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be.
(e) Notwithstanding anything to the contrary contained in paragraph (a) above or in the definition of “Capitalized Lease Obligations”, in the event of an accounting change requiring all leases to be capitalized, only those leases (assuming for purposes hereof that such leases were in existence on the date hereof) that would constitute Capitalized Lease Obligations in conformity with GAAP on the date hereof shall be considered Capitalized Lease Obligations, and all calculations and deliverables under this Agreement or any other Credit Document shall be made or delivered, as applicable, in accordance therewith (provided, that together with all financial statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of any such accounting change, the Borrowers shall deliver a schedule showing the adjustments necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting change).
Appears in 1 contract
Sources: Credit Agreement (RJR Nabisco Inc)
Calculations; Computations. (a) The All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial statements data (including financial ratios and other financial calculations) required to be furnished submitted pursuant to the Lenders pursuant hereto this Agreement shall be made and prepared in accordance with GAAP consistently applied throughout the periods involved (except as set forth in the notes thereto); providedconformity with, that (i) GAAP, except as otherwise specifically provided prescribed herein, all computations and all definitions .
(including accounting termsb) used in determining compliance with Sections 9.16 and 10 and calculations of the Fixed Charge Coverage Ratio and the First Lien Net Leverage Ratio, shall utilize GAAP and policies in conformity with those used to prepare the Pro Forma Financial Statements (subject to purchase accounting and other adjustments reasonably satisfactory to the Administrative Agent as a result of the Acquisition); provided, that if the Borrowers notify the Administrative Agent that the Borrowers request an amendment to If at any provision hereof to eliminate the effect of time any change occurring in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrowers that the Required Lenders 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 such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change becomes effective until such notice shall have been withdrawn would affect the computation of Excess Cash Flow or such provision amended in accordance herewith; provided, further, that if such an amendment is requested by the Borrowers any financial ratio or the Required Lenders, then the Borrowers and the Administrative Agent shall negotiate in good faith to enter into an amendment of the relevant affected provisions financial term or definition set #4848-1207-1386 169
(without the payment of any amendment or similar fee to the Lendersc) to preserve the original intent thereof in light of such change in GAAP or the application thereof, (ii) except as otherwise expressly provided herein, for purposes of calculating financial terms, all covenants and related definitions, all such calculations shall be based on the operations, assets and results of the Company and its Restricted Subsidiaries on a consolidated basis and shall be made without giving effect to the operations, assets or results of any Unrestricted Subsidiaries, (iii) notwithstanding Notwithstanding anything to the contrary contained herein, (i) other than with respect to the delivery if financial statements pursuant to Sections 7.01(a), (b) and (c), (x) the consolidation of the accounts of Holdings and its Restricted Subsidiaries shall not include the consolidation of the accounts of any Unrestricted Subsidiary and (y) all covenants financial calculations, definitions and computations shall made without the inclusion of any Unrestricted Subsidiary, for such purposes deeming any Unrestricted Subsidiary as not existing at the time any determination is made with respect to such financial ratios contained herein calculation, definition or in any other Credit Document computation, (ii) all financial statements shall be prepared, and the Total Secured Net Leverage Ratio, the First Lien Net Leverage Ratio and Total Net Leverage Ratio shall be calculated, in each case, without giving effect to any election under FASB ASC 825 (or any similar accounting principle) permitting a Person to value its financial liabilities at the fair value thereofthereof or the application of FAS 133, FAS 150 or FAS 123r (iv) all financial statements delivered to the Administrative Agent extent that the pronouncements in accordance FAS 123r result in recording an equity award as a liability on the consolidated balance sheet of Holdings and its Subsidiaries in the circumstance where, but for the application of the pronouncements, such award would have been classified as equity) and (iii) with respect to any period during which the terms Transactions or any Specified Transaction occurs, the calculation of this Agreement the Total Net Leverage Ratio, Total Secured Net Leverage Ratio, First Lien Net Leverage Ratio, Interest Coverage Ratio, Consolidated EBITDA and Consolidated Total Assets or for any other purpose hereunder, with respect to such period shall be made on a Pro Forma Basis. For the avoidance of doubt, notwithstanding any changes in GAAP after the date of any accounting change shall contain a schedule showing the adjustments, in any, necessary to reconcile such financial statements with GAAP Closing Date that would require lease obligations that would be treated as in effect immediately prior to such accounting changes, and (v) all references in this Agreement to a four-Fiscal Quarter period operating leases as of the Company referring Closing Date to a period prior to the Effective Date shall refer to the applicable period prior to the Effective Date be classified and accounted for as if the Company had existed and the Transaction has occurred Capital Lease Obligations or otherwise reflected on the first day consolidated balance sheet of said periodHoldings and its Subsidiaries, such obligations shall continue to be excluded from the definition of Indebtedness and Capital Lease Obligations.
(bd) All computations of interest, Commitment Commission interest and other Fees hereunder shall be made on the basis of a year of 360 days (except for interest calculated by reference to the Prime Lending Rate in the case of Base Rate Loans, which shall be based on a year of 365 or 366 days, as applicable) for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest or Fees are payable.
(c) Notwithstanding anything to the contrary herein, at any time after an IPO, to the extent that the terms of this Agreement require (i) compliance with any financial ratio or test (including, without limitation, any Fixed Charge Coverage Ratio and/or the amount of Consolidated EBITDA) or (ii) the absence of a Default or Event of Default (or any type of Default or Event of Default) as a condition to (A) the making of any Dividend and/or (B) the making of any Restricted Junior Payment, the determination of whether the relevant condition is satisfied may be made, at the election of the Borrowers, (1) in the case of any Dividend, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (A) the declaration of such Dividend or (B) the making of such Dividend and (2) in the case of any Restricted Junior Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (1) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Junior Payment or (2) the making of such Restricted Junior Payment, in each case, after giving effect to the relevant acquisition, Dividend and/or Restricted Junior Payment on a Pro Forma Basis.
(d) For purposes of determining the permissibility of any action, change, transaction or event that requires a calculation of any financial ratio or test (including, without limitation, Section 10.11, any Fixed Charge Coverage Ratio test and/or the amount of Consolidated EBITDA), such financial ratio or test shall be calculated at the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be, and no Default or Event of Default shall be deemed to have occurred solely as a result of a change in such financial ratio or test occurring after the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be.
(e) Notwithstanding anything to the contrary contained in paragraph (a) above or in the definition of “Capitalized Lease Obligations”, in the event of an accounting change requiring all leases to be capitalized, only those leases (assuming for purposes hereof that such leases were in existence on the date hereof) that would constitute Capitalized Lease Obligations in conformity with GAAP on the date hereof shall be considered Capitalized Lease Obligations, and all calculations and deliverables under this Agreement or any other Credit Document shall be made or delivered, as applicable, in accordance therewith (provided, that together with all financial statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of any such accounting change, the Borrowers shall deliver a schedule showing the adjustments necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting change).
Appears in 1 contract
Sources: First Lien Credit and Guarantee Agreement (Janus International Group, Inc.)
Calculations; Computations. (a) The All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial statements data (including financial ratios and other financial calculations) required to be furnished submitted pursuant to the Lenders pursuant hereto this Agreement shall be made and prepared in accordance with GAAP consistently applied throughout the periods involved (except as set forth in the notes thereto); providedconformity with, that (i) GAAP, except as otherwise specifically provided prescribed herein, all computations and all definitions .
(including accounting termsb) used in determining compliance with Sections 9.16 and 10 and calculations of the Fixed Charge Coverage Ratio and the First Lien Net Leverage Ratio, shall utilize GAAP and policies in conformity with those used to prepare the Pro Forma Financial Statements (subject to purchase accounting and other adjustments reasonably satisfactory to the Administrative Agent as a result of the Acquisition); provided, that if the Borrowers notify the Administrative Agent that the Borrowers request an amendment to If at any provision hereof to eliminate the effect of time any change occurring in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrowers that the Required Lenders 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 such provision shall be interpreted on the basis of GAAP as would affect the computation of Excess Cash Flow or any financial ratio or financial term or definition set forth in effect any Loan Document and applied immediately before such change becomes effective until such notice shall have been withdrawn or such provision amended in accordance herewith; providedany of Borrower, further, that if such an amendment is requested by the Borrowers Agents or the Required LendersLenders shall so request, then the Borrowers Agents, the Lenders and the Administrative Agent Borrower shall negotiate in good faith to enter into an amendment of the relevant affected provisions amend (without the payment of any amendment or similar fee subject to the approval of Borrower or Required Lenders) such ratio or covenant to preserve the original intent thereof in light of such change in GAAP (or in the application thereofof) GAAP; provided that, until so amended, (i) Excess Cash Flow and such ratio shall continue to be computed in accordance with GAAP prior to such change and (ii) except Borrower shall provide to the Administrative Agent financial statements and other documents required under this Agreement or as otherwise expressly provided herein, for purposes reasonably requested hereunder setting forth a reconciliation between calculations of calculating Excess Cash Flow or such ratio or financial terms, all covenants covenant made before and related definitions, all such calculations shall be based on the operations, assets and results of the Company and its Restricted Subsidiaries on a consolidated basis and shall be made without after giving effect to such change in (or in the operations, assets application of) GAAP as is reasonably necessary to demonstrate the calculation of Excess Cash Flow and compliance (or results of any Unrestricted Subsidiaries, non-compliance) with such ratio.
(iiic) notwithstanding Notwithstanding anything to the contrary contained herein, (i) all covenants and financial ratios contained herein or in any other Credit Document statements shall be calculatedprepared, in each case, without giving effect to any election under FASB ASC 825 (or any similar accounting principle) permitting a Person to value its financial liabilities at the fair value thereofthereof or the application of FAS 133, FAS 150 or FAS 123r (iv) all financial statements delivered to the Administrative Agent extent that the pronouncements in accordance with FAS 123r result in recording an equity award as a liability on the terms consolidated balance sheet of this Agreement after Holdings and its Restricted Subsidiaries in the date circumstance where, but for the application of any accounting change shall contain a schedule showing the adjustmentspronouncements, in any, necessary to reconcile such financial statements with GAAP award would have been classified as in effect immediately prior to such accounting changesequity), and (vii) all references to the extent expressly provided herein, certain calculations shall be made on a pro forma basis. For the avoidance of doubt, notwithstanding any changes in this Agreement to a four-Fiscal Quarter period GAAP after the Closing Date that would require lease obligations that would be treated as operating leases as of the Company referring Closing Date to a period prior to the Effective Date shall refer to the applicable period prior to the Effective Date be classified and accounted for as if the Company had existed and the Transaction has occurred Capital Lease Obligations or otherwise reflected on the first day consolidated balance sheet of said periodHoldings and its Restricted Subsidiaries, such obligations shall continue to be excluded from the definition of Indebtedness.
(bd) All computations of interest, Commitment Commission interest and other Fees fees hereunder shall be made on the basis of a year of 360 days (except for interest calculated by reference to the Prime Rate in the case of Base Rate Loans, which shall be based on a year of 365 or 366 days, as applicable) for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest or fees are payable.
(c) Notwithstanding anything to the contrary herein, at any time after an IPO, to the extent that the terms of this Agreement require (i) compliance with any financial ratio or test (including, without limitation, any Fixed Charge Coverage Ratio and/or the amount of Consolidated EBITDA) or (ii) the absence of a Default or Event of Default (or any type of Default or Event of Default) as a condition to (A) the making of any Dividend and/or (B) the making of any Restricted Junior Payment, the determination of whether the relevant condition is satisfied may be made, at the election of the Borrowers, (1) in the case of any Dividend, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (A) the declaration of such Dividend or (B) the making of such Dividend and (2) in the case of any Restricted Junior Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (1) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Junior Payment or (2) the making of such Restricted Junior Payment, in each case, after giving effect to the relevant acquisition, Dividend and/or Restricted Junior Payment on a Pro Forma Basis.
(d) For purposes of determining the permissibility of any action, change, transaction or event that requires a calculation of any financial ratio or test (including, without limitation, Section 10.11, any Fixed Charge Coverage Ratio test and/or the amount of Consolidated EBITDA), such financial ratio or test shall be calculated at the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be, and no Default or Event of Default shall be deemed to have occurred solely as a result of a change in such financial ratio or test occurring after the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be.
(e) Notwithstanding anything to the contrary contained in paragraph (a) above or in the definition of “Capitalized Lease Obligations”, in the event of an accounting change requiring all leases to be capitalized, only those leases (assuming for purposes hereof that such leases were in existence on the date hereof) that would constitute Capitalized Lease Obligations in conformity with GAAP on the date hereof shall be considered Capitalized Lease Obligations, and all calculations and deliverables under this Agreement or any other Credit Document shall be made or delivered, as applicable, in accordance therewith (provided, that together with all financial statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of any such accounting change, the Borrowers shall deliver a schedule showing the adjustments necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting change).
Appears in 1 contract
Calculations; Computations. (a) The financial statements to be furnished to the Lenders pursuant hereto shall be made and prepared in accordance with GAAP consistently applied throughout the periods involved (except as set forth in the notes thereto)effect from time to time; provided, that (i) except as otherwise specifically provided herein, all computations and all definitions (including accounting terms) used in determining compliance with Sections 9.16 and 10 and calculations of the Fixed Charge Coverage Ratio and the First Lien Net Leverage Ratio, shall utilize GAAP and policies in conformity with those used to prepare the Pro Forma Financial Statements (subject to purchase accounting and other adjustments reasonably satisfactory to the Administrative Agent as a result of the Acquisition); provided, that if the Borrowers notify Company notifies the Administrative Agent that the Borrowers request it requests an amendment to any provision hereof to eliminate the effect of any change occurring in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrowers Company that the Required Lenders 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 such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change becomes shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith; provided. The Company shall have the right, furtherif required by relevant regulatory authorities, that if such an amendment is requested to adopt the International Financial Reporting Standards, as promulgated by the Borrowers International Accounting Standards Board (or any successor board or agency), as in effect on the Required Lenders, then the Borrowers and the Administrative Agent shall negotiate in good faith to enter into an amendment date of the relevant affected provisions (without the payment of any amendment or similar fee to the Lenders) to preserve the original intent thereof in light of such change in GAAP or the application thereofelection, (ii) except as otherwise expressly provided hereinwhich election shall, for purposes of calculating financial termsthis Agreement, all covenants and related definitions, all such calculations shall be based on the operations, assets and results of the Company and its Restricted Subsidiaries on treated as a consolidated basis permitted change in GAAP and shall be made without giving effect subject to the operations, assets or results terms of the immediately preceding sentence. Notwithstanding any Unrestricted Subsidiaries, (iii) notwithstanding anything to the contrary other provision contained herein, (i) all covenants and terms of an accounting or financial ratios contained nature used herein or in any other Credit Document shall be calculatedconstrued, in each caseand all computations of amounts and ratios referred to herein shall be made, without giving effect to any election under FASB Statement of Financial Accounting Standards 141R or ASC 825 805 (or any other financial accounting standard having a similar result or effect) and (ii) any lease which was (or would have been) classified as an operating lease under the Company’s accounting principle) permitting a Person to value its financial liabilities at the fair value thereof, (iv) all financial statements delivered to the Administrative Agent treatment thereof in accordance with the terms of this Agreement after the date of any accounting change shall contain a schedule showing the adjustments, in any, necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting changeson the Closing Date shall not constitute a Capital Lease, and the obligations or liabilities thereunder shall not constitute Capitalized Lease Obligations, notwithstanding any changes in GAAP (vor the required implementation of any previously promulgated changes in GAAP) all references in this Agreement to a four-Fiscal Quarter period of the Company referring to a period prior subsequent to the Closing Date (whether before or after the Second Amendment Effective Date shall refer Date) relating to the applicable period prior to the Effective Date treatment of a lease as if the Company had existed and the Transaction has occurred on the first day of said periodan operating lease or capitalized lease.
(b) All computations of interest, Commitment Commission and other Fees hereunder shall be made on the basis of a year of 360 days (except for interest calculated by reference to the Prime Rate in the case of Base Rate Loans, which shall be based on a year of 365 or 366 days, as applicable) for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest are payable.
(c) Notwithstanding anything to the contrary herein, at any time after an IPO, to the extent that the terms of this Agreement require (i) compliance with any financial ratio or test (including, without limitation, any Fixed Charge Coverage Ratio and/or the amount of Consolidated EBITDA) or (ii) the absence of a Default or Event of Default (or any type of Default or Event of Default) as a condition to (A) the making of any Dividend and/or (B) the making of any Restricted Junior Payment, the determination of whether the relevant condition is satisfied may be made, at the election of the Borrowers, (1) in the case of any Dividend, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (A) the declaration of such Dividend or (B) the making of such Dividend and (2) in the case of any Restricted Junior Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (1) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Junior Payment or (2) the making of such Restricted Junior Payment, in each case, after giving effect to the relevant acquisition, Dividend and/or Restricted Junior Payment on a Pro Forma Basis.
(d) For purposes of determining the permissibility of any action, change, transaction or event that requires a The calculation of any financial ratio or test (including, without limitation, Section 10.11, any Fixed Charge Coverage Ratio test and/or the amount of Consolidated EBITDA), such financial ratio or test ratios under this Agreement shall be calculated at by dividing the time appropriate component by the other component, carrying the result to one place more than the number of places by which such action ratio is taken, such change is made, such transaction is consummated expressed herein and rounding the result up or such event occurs, as the case may be, and no Default or Event of Default shall be deemed to have occurred solely as a result of a change in such financial ratio or test occurring after the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be.
(e) Notwithstanding anything down to the contrary contained in paragraph nearest number (a) above or in the definition of “Capitalized Lease Obligations”, in the event of an accounting change requiring all leases to be capitalized, only those leases (assuming for purposes hereof that such leases were in existence on the date hereof) that would constitute Capitalized Lease Obligations in conformity with GAAP on the date hereof shall be considered Capitalized Lease Obligations, and all calculations and deliverables under this Agreement or any other Credit Document shall be made or delivered, as applicable, in accordance therewith (provided, that together with all financial statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of any such accounting change, the Borrowers shall deliver a schedule showing the adjustments necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting changerounding-down if there is no nearest number).
Appears in 1 contract
Calculations; Computations. (a) The financial statements to be furnished to the Lenders pursuant hereto shall be made and prepared in accordance with GAAP consistently applied throughout the periods involved (except as set forth in the notes theretothereto or as otherwise disclosed in writing by the Borrower to the Lenders); provided, provided that (i) except all terms of an accounting or financial nature shall be construed in accordance with GAAP, as otherwise specifically provided herein, all computations and all definitions (including accounting terms) used in determining compliance with Sections 9.16 and 10 and calculations of the Fixed Charge Coverage Ratio and the First Lien Net Leverage Ratio, shall utilize GAAP and policies in conformity with those used effect from time to prepare the Pro Forma Financial Statements (subject to purchase accounting and other adjustments reasonably satisfactory to the Administrative Agent as a result of the Acquisition)time; provided, however, that (A) if Holdings or the Borrowers notify Borrower notifies the Administrative Agent that the Borrowers request Holdings requests an amendment to 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 Administrative Agent notifies Holdings that the Borrowers that Administrative Agent or the Required Lenders 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 until such notice shall have been withdrawn or such provision amended in accordance herewith such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change becomes effective until shall have become effective, (B) unless any such notice shall have delivered pursuant to clause (A) above has been withdrawn or such provision amended in accordance herewith; providedwithdrawn, furtherHoldings, that if such an amendment is requested by the Borrowers or the Required Lenders, then the Borrowers Borrower and the Administrative Agent requisite Lenders under Section 13.12 shall negotiate in good faith to enter into an amendment amend the provisions of the relevant affected provisions (without the payment of any amendment or similar fee this Agreement that relate to the Lenders) to preserve operation of such provision with the original intent thereof in light of having the respective positions of Holdings and the Lenders after such change in GAAP or the application thereof conform as nearly to their respective positions as of the Effective Date (which amendment shall not be subject to any amendment fee payable to the Lenders or any pricing change to the extent such amendment is solely related to eliminating the effect of such change in GAAP or in the application thereof), (C) GAAP as applied herein with respect to accounting for leases (including Capitalized Lease Obligations) shall be GAAP as in effect on the Effective Date and (D) Holdings shall include with the financial statements and other financial information and calculations required to be delivered to the Administrative Agent and Lenders hereunder a reconciliation of such financial statements, information and calculations before and after giving effect to such change in GAAP, (ii) except as otherwise expressly provided herein, for purposes of calculating financial terms, all covenants and related definitions, all such calculations shall be based on the operations, assets and results of the Company and its Restricted Subsidiaries on a consolidated basis and shall be made without giving effect to the operations, assets or results of any Unrestricted Subsidiaries, (iii) notwithstanding anything to the contrary contained herein, all such financial statements shall be prepared, and all financial covenants and financial ratios contained herein or in any other Credit Document shall be calculated, in each case, without giving effect to any election under FASB ASC 825 (or any similar accounting principle) principle permitting a Person to value its financial liabilities at the fair value thereof, (iviii) all financial statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of any accounting change extent expressly provided herein, certain calculations shall contain be made on a schedule showing the adjustments, in any, necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting changesPro Forma Basis, and (viv) all references in this Agreement to a four-Fiscal Quarter period of the Company referring to a period prior notwithstanding anything to the Effective Date contrary contained herein, for purposes of calculating all financial ratios and financial terms set forth herein and in the other Credit Documents, the financial results of Unrestricted Subsidiaries shall refer to the applicable period prior to the Effective Date as if the Company had existed and the Transaction has occurred on the first day of said periodbe ignored.
(b) All computations of interest, Commitment Commission and other Fees hereunder shall be made on the basis of a year of 360 days (except for interest calculated by reference to the Prime Rate in the case of Base Rate LoansLending Rate, which shall be based on a year of 365 or 366 days, as applicable) for the actual number of days (including the first day but excluding the last day; except that in the case of Letter of Credit Fees and Facing Fees, the last day shall be included) occurring in the period for which such interest interest, Commitment Commission or Fees are payable.
(c) Notwithstanding anything to the contrary herein, at any time after an IPO, to the extent that the terms of this Agreement require (i) compliance with any financial ratio or test (including, without limitation, any Fixed Charge Coverage Ratio and/or the amount of Consolidated EBITDA) or (ii) the absence of a Default or Event of Default (or any type of Default or Event of Default) as a condition to (A) the making of any Dividend and/or (B) the making of any Restricted Junior Payment, the determination of whether the relevant condition is satisfied may be made, at the election of the Borrowers, (1) in the case of any Dividend, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (A) the declaration of such Dividend or (B) the making of such Dividend and (2) in the case of any Restricted Junior Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (1) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Junior Payment or (2) the making of such Restricted Junior Payment, in each case, after giving effect to the relevant acquisition, Dividend and/or Restricted Junior Payment on a Pro Forma Basis.
(d) For purposes of determining the permissibility of any action, change, transaction or event that requires a calculation of any financial ratio or test (including, without limitation, Section 10.11, any Fixed Charge Coverage Ratio test and/or the amount of Consolidated EBITDA), such financial ratio or test shall be calculated at the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be, and no Default or Event of Default shall be deemed to have occurred solely as a result of a change in such financial ratio or test occurring after the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be.
(e) Notwithstanding anything to the contrary contained in paragraph (a) above or in the definition of “Capitalized Lease Obligations”, in the event of an accounting change requiring all leases to be capitalized, only those leases (assuming for purposes hereof that such leases were in existence on the date hereof) that would constitute Capitalized Lease Obligations in conformity with GAAP on the date hereof shall be considered Capitalized Lease Obligations, and all calculations and deliverables under this Agreement or any other Credit Document shall be made or delivered, as applicable, in accordance therewith (provided, that together with all financial statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of any such accounting change, the Borrowers shall deliver a schedule showing the adjustments necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting change).
Appears in 1 contract
Calculations; Computations. (a) The financial statements to be furnished to the Lenders pursuant hereto shall be made and prepared in accordance with GAAP generally accepted accounting principles in Canada as from time to time in effect ("Canadian GAAP") consistently applied throughout by the Canadian Parent through the periods involved (except as set forth in the notes thereto); provided, thereto or as otherwise disclosed in writing by the Canadian Parent to the Lenders) provided that (i) except as otherwise specifically provided hereinif there is any change occurring after the date hereof in Canadian GAAP or the application thereof from that used to prepare the historical financial statements of the Canadian Parent delivered to the Lenders pursuant to Section 7.05(a), then the Borrower may notify the Administrative Agent, or the Administrative Agent or Required Lenders may notify the Borrower, that the requesting party requests an amendment to one or more of the provisions to this Agreement to eliminate the effects of such changes, in which case the parties hereto shall negotiate in good faith to agree upon and approve the requested amendment (and shall use commercially reasonable efforts to agree thereon within 90 days) and, unless and until such amendment is executed and delivered in accordance with the requirements of this Agreement, then this Agreement and all computations and all definitions (including accounting terms) used in determining the Applicable Margins, Excess Cash Flow and compliance with Sections 9.16 4 and 10 and calculations of the Fixed Charge Coverage Ratio and the First Lien Net Leverage Ratio, 9 shall utilize use Canadian GAAP and policies in conformity with those as used to prepare the historical financial statements with the Canadian Parent delivered to the Lenders pursuant to Section 7.05(a) until the respective amendment has been adopted, (ii) to the extent expressly required pursuant to the provisions of this Agreement, certain calculations shall be made on a Pro Forma Financial Statements Basis, (subject iii) for purposes of determining compliance with any incurrence or expenditure tests set forth in Sections 8 and/or 9 (excluding Sections 9.08 and 9.09), any amounts so incurred or expended (to purchase accounting and the extent incurred or expended in a currency other adjustments reasonably than U.S. Dollars) shall be converted into U.S. Dollars on the basis of exchange rates (as quoted by a source satisfactory to the Administrative Agent Agent) as a result in effect on the date of the Acquisition); provided, that if the Borrowers notify the Administrative Agent that the Borrowers request an amendment to such incurrence or expenditure under any provision hereof to eliminate the effect of any change occurring such Section that has an aggregate Dollar limitation provided for therein (and to the extent the respective incurrence or expenditure test regulates the aggregate amount outstanding at any time and it is expressed in GAAP terms of U.S. Dollars, all outstanding amounts originally -175- incurred or spent in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrowers that the Required Lenders 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 such provision currencies other than U.S. Dollars shall be interpreted converted into U.S. Dollars on the basis of GAAP the exchange rates (as quoted by a source satisfactory to the Administrative Agent) as in effect and applied immediately before such change becomes effective until such notice shall have been withdrawn on the date any new incurrence or such expenditures made under any provision amended in accordance herewith; provided, further, that if such an amendment is requested by the Borrowers or the Required Lenders, then the Borrowers and the Administrative Agent shall negotiate in good faith to enter into an amendment of the relevant affected provisions (without the payment of any amendment or similar fee to such Section that regulates the LendersDollar amount outstanding at any time) to preserve the original intent thereof in light of such change in GAAP or the application thereof, and (iiiv) except as otherwise expressly provided herein, for purposes of calculating financial terms, all covenants and related definitions, all such calculations shall be based on the operations, assets and results operations of the Company Canadian Parent and its Restricted Subsidiaries on a consolidated basis and shall be made without giving effect to the operations, assets or results operations of any Unrestricted Subsidiaries, (iii) notwithstanding anything to the contrary contained herein, all covenants and financial ratios contained herein or in any other Credit Document shall be calculated, in each case, without giving effect to any election under FASB ASC 825 (or any similar accounting principle) permitting a Person to value its financial liabilities at the fair value thereof, (iv) all financial statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of any accounting change shall contain a schedule showing the adjustments, in any, necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting changes, and (v) all references in this Agreement to a four-Fiscal Quarter period of the Company referring to a period prior to the Effective Date shall refer to the applicable period prior to the Effective Date as if the Company had existed and the Transaction has occurred on the first day of said period.
(b) All computations of interest, B Term Loan Commitment Commission, RL Commitment Commission and other Fees hereunder shall be made on the basis of a year of 360 days (except for interest calculated by reference to the Prime Rate in the case of Base Rate Loans, which shall be based on a year of 365 or 366 days, as applicable) for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest interest, B Term Loan Commitment Commission, RL Commitment Commission or Fees are payable.
(c) Notwithstanding anything to . For the contrary herein, at any time after an IPO, to the extent that the terms purposes of this Agreement require (i) compliance with Agreement, whenever any financial ratio or test (including, without limitation, any Fixed Charge Coverage Ratio and/or the amount of Consolidated EBITDA) or (ii) the absence of a Default or Event of Default (or any type of Default or Event of Default) as a condition to (A) the making of any Dividend and/or (B) the making of any Restricted Junior Payment, the determination of whether the relevant condition interest is satisfied may be made, at the election of the Borrowers, (1) in the case of any Dividend, at the time of (or calculated on the basis of a period of time other than a calendar year, the financial statements annual rate of interest to which each rate of interest determined pursuant to such calculation is equivalent for the most recently ended Test Period at purposes of the time ofInterest Act (Canada) (A) is such rate as so determined multiplied by the declaration actual number of such Dividend or (B) the making of such Dividend and (2) days in the case calendar year in which the same is to be ascertained and divided by the number of any Restricted Junior Payment, at the time of (or on days used in the basis of the financial statements for the most recently ended Test Period at the time of) (1) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Junior Payment or (2) the making of such Restricted Junior Payment, in each case, after giving effect to the relevant acquisition, Dividend and/or Restricted Junior Payment on a Pro Forma Basisdetermination.
(d) For purposes of determining the permissibility of any action, change, transaction or event that requires a calculation of any financial ratio or test (including, without limitation, Section 10.11, any Fixed Charge Coverage Ratio test and/or the amount of Consolidated EBITDA), such financial ratio or test shall be calculated at the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be, and no Default or Event of Default shall be deemed to have occurred solely as a result of a change in such financial ratio or test occurring after the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be.
(e) Notwithstanding anything to the contrary contained in paragraph (a) above or in the definition of “Capitalized Lease Obligations”, in the event of an accounting change requiring all leases to be capitalized, only those leases (assuming for purposes hereof that such leases were in existence on the date hereof) that would constitute Capitalized Lease Obligations in conformity with GAAP on the date hereof shall be considered Capitalized Lease Obligations, and all calculations and deliverables under this Agreement or any other Credit Document shall be made or delivered, as applicable, in accordance therewith (provided, that together with all financial statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of any such accounting change, the Borrowers shall deliver a schedule showing the adjustments necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting change).
Appears in 1 contract
Calculations; Computations. (a) The financial statements to be furnished to the Lenders Banks pursuant hereto shall be made and prepared in accordance with GAAP generally accepted accounting principles in the United States consistently applied throughout the periods involved (except as set forth in the notes theretothereto or as otherwise disclosed in writing by Holdings to the Banks); provided, PROVIDED that (i) except as otherwise specifically provided herein, all computations of Available Basket Amount, Consolidated Cumulative 25% Net Income, the Applicable Margin and all definitions (including accounting terms) used in computations determining compliance with Sections 9.16 and 10 and calculations of the Fixed Charge Coverage Ratio and the First Lien Net Leverage Ratio, Section 9 shall utilize GAAP accounting principles 150 and policies in conformity with those used to prepare the Pro Forma Financial Statements historical financial statements delivered to the Banks pursuant to Section 7.05(a) (with the foregoing generally accepted accounting principles, subject to purchase accounting and other adjustments reasonably satisfactory the preceding proviso, herein called "GAAP"), (ii) to the Administrative Agent extent expressly required pursuant to the provisions of this Agreement, certain calculations shall be made on a PRO FORMA Basis, (iii) for all purposes of this Agreement, all Attributed Receivables Facility Indebtedness shall be included as a result of the Acquisition); provided, that if the Borrowers notify the Administrative Agent that the Borrowers request an amendment to any provision hereof to eliminate the effect of any change occurring in GAAP or Indebtedness in the application thereof on the operation consolidated financial statements of such provision (or if the Administrative Agent notifies the Borrowers that the Required Lenders request an amendment to any provision hereof for such purpose)Holdings and its Subsidiaries, and shall be considered Indebtedness of a Subsidiary of Holdings hereunder, regardless of whether any such notice is given before differing treatment pursuant to generally acceptable accounting principles, (iv) for purposes of determining compliance with any incurrence tests set forth in Sections 8 and/or 9 (excluding Sections 9.08 and 9.09), any amounts so incurred or after such change expended (to the extent incurred or expended in GAAP or in the application thereof, then such provision a currency other than Dollars) shall be interpreted converted into Dollars on the basis of GAAP the Dollar Equivalent of such amounts as in effect on the date of such incurrence or expenditure under any provision of any such Section that has an aggregate Dollar limitation provided for therein (and applied immediately before such change becomes effective until such notice to the extent the respective incurrence test regulates the aggregate amount outstanding at any time and it is expressed in terms of Dollars, all outstanding amounts originally incurred or spent in currencies other than Dollars shall have been withdrawn or such provision amended in accordance herewith; provided, further, that if such an amendment is requested by be converted into Dollars on the Borrowers or the Required Lenders, then the Borrowers and the Administrative Agent shall negotiate in good faith to enter into an amendment basis of the relevant affected provisions (without Dollar Equivalent of such amounts as in effect on the payment date any new incurrence or expenditures made under any provision of any amendment or similar fee to such Section that regulates the LendersDollar amount outstanding at any time), and (v) to preserve the original intent thereof in light of such change in GAAP or the application thereof, (ii) except as otherwise expressly provided herein, for purposes of calculating financial terms, all covenants and related definitions, all such calculations shall be based on the operations, assets and results operations of the Company Holdings and its Restricted Subsidiaries on a consolidated basis and shall be made without giving effect to the operations, assets or results operations of any Unrestricted Subsidiaries, (iii) notwithstanding anything to the contrary contained herein, all covenants and financial ratios contained herein or in any other Credit Document shall be calculated, in each case, without giving effect to any election under FASB ASC 825 (or any similar accounting principle) permitting a Person to value its financial liabilities at the fair value thereof, (iv) all financial statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of any accounting change shall contain a schedule showing the adjustments, in any, necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting changes, and (v) all references in this Agreement to a four-Fiscal Quarter period of the Company referring to a period prior to the Effective Date shall refer to the applicable period prior to the Effective Date as if the Company had existed and the Transaction has occurred on the first day of said period.
(b) All computations of Eurodollar interest, Commitment Commission and other Fees hereunder shall be made on the basis of a year of 360 days for the actual number of days (except for interest calculated by reference to including the Prime Rate first day but excluding the last day) occurring in the case period for which such interest, Commitment Commission or Fees are payable. All computations of Base Rate, Sterling Euro Rate Loans, which and Overnight LIBOR Rate interest hereunder shall be based made on the basis of a year of 365 or 366 days, as applicable) 365/366 days for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest are is payable.
(c) Notwithstanding anything to the contrary herein, at any time after an IPO, to the extent that the terms of this Agreement require (i) compliance with any financial ratio or test (including, without limitation, any Fixed Charge Coverage Ratio and/or the amount of Consolidated EBITDA) or (ii) the absence of a Default or Event of Default (or any type of Default or Event of Default) as a condition to (A) the making of any Dividend and/or (B) the making of any Restricted Junior Payment, the determination of whether the relevant condition is satisfied may be made, at the election of the Borrowers, (1) in the case of any Dividend, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (A) the declaration of such Dividend or (B) the making of such Dividend and (2) in the case of any Restricted Junior Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (1) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Junior Payment or (2) the making of such Restricted Junior Payment, in each case, after giving effect to the relevant acquisition, Dividend and/or Restricted Junior Payment on a Pro Forma Basis.
(d) For purposes of determining the permissibility of any action, change, transaction or event that requires a calculation of any financial ratio or test (including, without limitation, Section 10.11, any Fixed Charge Coverage Ratio test and/or the amount of Consolidated EBITDA), such financial ratio or test shall be calculated at the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be, and no Default or Event of Default shall be deemed to have occurred solely as a result of a change in such financial ratio or test occurring after the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be.
(e) Notwithstanding anything to the contrary contained in paragraph (a) above or in the definition of “Capitalized Lease Obligations”, in the event of an accounting change requiring all leases to be capitalized, only those leases (assuming for purposes hereof that such leases were in existence on the date hereof) that would constitute Capitalized Lease Obligations in conformity with GAAP on the date hereof shall be considered Capitalized Lease Obligations, and all calculations and deliverables under this Agreement or any other Credit Document shall be made or delivered, as applicable, in accordance therewith (provided, that together with all financial statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of any such accounting change, the Borrowers shall deliver a schedule showing the adjustments necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting change).
Appears in 1 contract
Sources: Credit Agreement (Big Flower Press Holdings Inc /Pred/)
Calculations; Computations. (a) The financial statements to be furnished to the Lenders pursuant hereto shall be made and prepared in accordance with GAAP consistently applied throughout the periods involved (except as set forth in the notes thereto); provided, that that, (i) except as otherwise specifically provided herein, all computations and all definitions (including accounting terms) used in determining compliance with Sections 9.16 and 10 and calculations of the Fixed Charge Coverage Ratio and the First Lien Net Leverage RatioSection 2.14, shall utilize GAAP and policies in conformity with those used to prepare the Pro Forma Financial Statements (subject to purchase accounting and other adjustments reasonably satisfactory to the Administrative Agent Required Lenders as a result of the Acquisition); provided, that if the Borrowers notify Borrower notifies the Administrative Agent that the Borrowers request Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrowers Borrower that the Required Lenders 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 such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change becomes effective until such notice shall have been withdrawn or such provision amended in accordance herewith; provided, further, that if such an amendment is requested by the Borrowers Borrower or the Required Lenders, then the Borrowers Borrower and the Administrative Agent Required Lenders shall negotiate in good faith to enter into an amendment of the relevant affected provisions (without the payment of any amendment or similar fee to the Lenders) to preserve the original intent thereof in light of such change in GAAP or the application thereof, (ii) except as otherwise expressly provided herein, for purposes of calculating financial terms, all covenants and related definitions, all such calculations shall be based on the operations, assets and results of the Company Borrower and its Restricted Subsidiaries on a consolidated basis and shall be made without giving effect to the operations, assets or results of any Unrestricted Subsidiariesbasis, (iii) notwithstanding anything to the contrary contained herein, all covenants and financial ratios contained herein or in any other Credit Document shall be calculated, in each case, without giving effect to any election under FASB ASC 825 (or any similar accounting principle) permitting a Person to value its financial liabilities at the fair value thereof, (iv) all financial statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of any accounting change shall contain a schedule showing the adjustments, in if any, necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting changes, and (v) all references in this Agreement to a four-Fiscal Quarter period of the Company Borrower referring to a period prior to the Effective Closing Date shall refer to the applicable period prior to the Effective Closing Date as if the Company Borrower had existed and the Transaction has occurred on the first day of said period.
(b) All computations of interest, Commitment Commission interest and other Fees hereunder shall be made on the basis of a year of 360 days (except for interest calculated by reference to the Prime Rate in the case of Base Rate Loans, which shall be based on a year of 365 or 366 days, as applicable) for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest are payable.
(c) Notwithstanding anything to the contrary herein, at any time after an IPO, to the extent that the terms of this Agreement require (i) compliance with any financial ratio or test (including, without limitation, any Fixed Charge Coverage Ratio and/or the amount of Consolidated EBITDA) or (ii) the absence of a Default or Event of Default (or any type of Default or Event of Default) as a condition to (A) the making of any Dividend and/or (B) the making of any Restricted Junior Payment, the determination of whether the relevant condition is satisfied may be made, at the election of the Borrowers, (1) in the case of any Dividend, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (A) the declaration of such Dividend or (B) the making of such Dividend and (2) in the case of any Restricted Junior Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (1) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Junior Payment or (2) the making of such Restricted Junior Payment, in each case, after giving effect to the relevant acquisition, Dividend and/or Restricted Junior Payment on a Pro Forma Basis.
(d) For purposes of determining the permissibility of any action, change, transaction or event that requires a calculation of any financial ratio or test (including, without limitation, Section 10.11, any Fixed Charge Coverage Ratio test and/or the amount of Consolidated EBITDA), such financial ratio or test shall be calculated at the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be, and no Default or Event of Default shall be deemed to have occurred solely as a result of a change in such financial ratio or test occurring after the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be.
(e) Notwithstanding anything to the contrary contained in paragraph (a) above or in the definition of “Capitalized Lease Obligations”, in the event of an accounting change requiring all leases to be capitalized, only those leases (assuming for purposes hereof that such leases were in existence on the date hereofClosing Date) that would constitute Capitalized Lease Obligations in conformity with GAAP on the date hereof Closing Date shall be considered Capitalized Lease Obligations, and all calculations and deliverables under this Agreement or any other Credit Document shall be made or delivered, as applicable, in accordance therewith (provided, provided that together with all financial statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of any such accounting change, the Borrowers Borrower shall deliver a schedule showing the adjustments necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting change).
Appears in 1 contract
Calculations; Computations. (a) The financial statements to be furnished to the Lenders pursuant hereto shall be made and prepared in accordance with GAAP consistently applied throughout the periods involved (except as set forth in the notes thereto); provided, that (i) except as otherwise specifically provided herein, all computations and all definitions (including accounting terms) used in determining compliance with Sections 9.16 9.17 and 10 and calculations of the Fixed Charge Coverage Ratio, the Secured Net Leverage Ratio and the First Lien Total Net Leverage Ratio, shall utilize GAAP and policies in conformity with those used to prepare the Pro Forma Financial Statements (subject to purchase accounting and other adjustments reasonably satisfactory to the Administrative Agent as a result of the Acquisition); provided, that if the Borrowers notify the Administrative Agent that the Borrowers request an amendment to any provision hereof to eliminate the effect of any change occurring in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrowers that the Required Lenders 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 such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change becomes effective until such notice shall have been withdrawn or such provision amended in accordance herewith; provided, further, that if such an amendment is requested by the Borrowers or the Required Lenders, then the Borrowers and the Administrative Agent shall negotiate in good faith to enter into an amendment of the relevant affected provisions (without the payment of any amendment or similar fee to the Lenders) to preserve the original intent thereof in light of such change in GAAP or the application thereof, (ii) except as otherwise expressly provided herein, for purposes of calculating financial terms, all covenants and related definitions, all such calculations shall be based on the operations, assets and results of the Company and its Restricted Subsidiaries on a consolidated basis and shall be made without giving effect to the operations, assets or results of any Unrestricted Subsidiariesbasis, (iii) notwithstanding anything to the contrary contained herein, all covenants and financial ratios contained herein or in any other Credit Document shall be calculated, in each case, without giving effect to any election under FASB ASC 825 (or any similar accounting principle) permitting a Person to value its financial liabilities at the fair value thereof, (iv) all financial statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of any accounting change shall contain a schedule showing the adjustments, in any, necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting changes, and (v) all references in this Agreement to a four-Fiscal Quarter period of the Company referring to a period prior to the Effective Date shall refer to the applicable period prior to the Effective Date as if the Company had existed and the Transaction has occurred on the first day of said period.
(b) All computations of interest, Commitment Commission and other Fees hereunder shall be made on the basis of a year of 360 days (except for interest calculated by reference to the Prime Rate in the case of Base Rate Loans, which shall be based on a year of 365 or 366 days, as applicable) for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest are payable.
(c) Notwithstanding anything to the contrary herein, at any time after an IPO, to the extent that the terms of this Agreement require (i) compliance with any financial ratio or test (including, without limitation, any Fixed Charge Coverage Ratio and/or the amount of Consolidated EBITDA) or (ii) the absence of a Default or Event of Default (or any type of Default or Event of Default) as a condition to (A) the making of any Dividend and/or (B) the making of any Restricted Junior Payment, the determination of whether the relevant condition is satisfied may be made, at the election of the Borrowers, (1) in the case of any Dividend, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (A) the declaration of such Dividend or (B) the making of such Dividend and (2) in the case of any Restricted Junior Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (1) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Junior Payment or (2) the making of such Restricted Junior Payment, in each case, after giving effect to the relevant acquisition, Dividend and/or Restricted Junior Payment on a Pro Forma Basis.
(d) For purposes of determining the permissibility of any action, change, transaction or event that requires a calculation of any financial ratio or test (including, without limitation, Section 10.11, any Fixed Charge Coverage Ratio test and/or the amount of Consolidated EBITDA), such financial ratio or test shall be calculated at the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be, and no Default or Event of Default shall be deemed to have occurred solely as a result of a change in such financial ratio or test occurring after the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be.
(e) Notwithstanding anything to the contrary contained in paragraph (a) above or in the definition of “Capitalized Lease Obligations”, in the event of an accounting change requiring all leases to be capitalized, only those leases (assuming for purposes hereof that such leases were in existence on the date hereof) that would constitute Capitalized Lease Obligations in conformity with GAAP on the date hereof shall be considered Capitalized Lease Obligations, and all calculations and deliverables under this Agreement or any other Credit Document shall be made or delivered, as applicable, in accordance therewith (provided, that together with all financial statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of any such accounting change, the Borrowers shall deliver a schedule showing the adjustments necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting change).
Appears in 1 contract
Sources: Abl Credit Agreement (J.Jill, Inc.)
Calculations; Computations. (a) The financial statements to be furnished to the Lenders pursuant hereto shall be made and prepared in accordance with GAAP consistently applied throughout the periods involved (except as set forth in the notes thereto); provided, that that, (i) except as otherwise specifically provided herein, all computations and all definitions (including accounting terms) used in determining compliance with Sections 9.16 2.14 and 10 9 and calculations of the Fixed Charge Coverage Ratio and the First Lien Net Leverage Ratio, Secured Net Leverage Ratio and Interest Coverage Ratio, shall utilize GAAP and policies in conformity with those used to prepare the Pro Forma Financial Statements (subject to purchase accounting and other adjustments reasonably satisfactory to the Administrative Agent as a result of the Acquisition)GAAP; provided, that if the Borrowers notify Borrower notifies the Administrative Agent that the Borrowers request Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrowers Borrower that the Required Lenders 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 such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change becomes effective until such notice shall have been withdrawn or such provision amended in accordance herewith; provided, further, that if such an amendment is requested by the Borrowers Borrower or the Required Lenders, then the Borrowers Borrower and the Administrative Agent Required Lenders shall negotiate in good faith to enter into an amendment of the relevant affected provisions (without the payment of any amendment or similar fee to the Lenders) to preserve the original intent thereof in light of such change in GAAP or the application thereof, (ii) except as otherwise expressly provided herein, for purposes of calculating financial terms, all covenants and related definitions, all such calculations shall be based on the operations, assets and results of the Company Borrower and its Restricted Subsidiaries on a consolidated basis and shall be made without giving effect to the operations, assets or results of any Unrestricted Subsidiariesbasis, (iii) notwithstanding anything to the contrary contained herein, all covenants and financial ratios contained herein or in any other Credit Document shall be calculated, in each case, without giving effect to any election under FASB ASC 825 (or any similar accounting principle) permitting a Person to value its financial liabilities at the fair value thereof, (iv) all financial statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of any accounting change shall contain a schedule showing the adjustments, in if any, necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting changes, and (v) all references in this Agreement to a four-Fiscal Quarter period of the Company Borrower referring to a period prior to the Effective Closing Date shall refer to the applicable period prior to the Effective Closing Date as if the Company Borrower had existed and the Transaction has occurred on the first day of said period.
(b) All computations of interest, Commitment Commission interest and other Fees hereunder shall be made on the basis of a year of 360 days (except for interest calculated by reference to the Prime Rate in the case of Base Rate Loans, which shall be based on a year of 365 or 366 days, as applicable) for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest are payable.
(c) Notwithstanding anything to the contrary herein, at any time after an IPO, to the extent that the terms of this Agreement require (i) compliance with any financial ratio or test (including, without limitation, Section 9.11(a), any Fixed Charge First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, any Interest Coverage Ratio test and/or the amount of Consolidated EBITDA) or (ii) the absence of a Default or Event of Default (or any type of Default or Event of Default) as a condition to (A) the making of any Dividend and/or (B) the making of any Restricted Junior Payment, the determination of whether the relevant condition is satisfied may be made, at the election of the BorrowersBorrower, (1) in the case of any Dividend, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (Ax) the declaration of such Dividend or (By) the making of such Dividend and (2) in the case of any Restricted Junior Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (1x) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Junior Payment or (2y) the making of such Restricted Junior Payment, in each case, after giving effect to the relevant acquisition, Dividend and/or Restricted Junior Payment on a Pro Forma Basis.
(d) For purposes of determining the permissibility of any action, change, transaction or event that requires a calculation of any financial ratio or test (including, without limitation, Section 10.119.11(a), any Fixed Charge First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, any Interest Coverage Ratio test and/or the amount of Consolidated EBITDA), such financial ratio or test shall be calculated at the time such action is takentaken (subject to clause (c) above), such change is made, such transaction is consummated or such event occurs, as the case may be, and no Default or Event of Default shall be deemed to have occurred solely as a result of a change in such financial ratio or test occurring after the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be.
(e) [Reserved].
(f) Notwithstanding anything to the contrary contained in paragraph (a) above or in the definition of “Capitalized Lease Obligations”, in the event of an accounting change requiring all leases to be capitalized, only those leases (assuming for purposes hereof that such leases were in existence on the date hereof) that would constitute Capitalized Lease Obligations in conformity with GAAP on the date hereof shall be considered Capitalized Lease Obligations, and all calculations and deliverables under this Agreement or any other Credit Document shall be made or delivered, as applicable, in accordance therewith (provided, provided that together with all financial statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of any such accounting change, the Borrowers Borrower shall deliver a schedule showing the adjustments necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting change).
Appears in 1 contract
Sources: Subordinated Term Loan Credit Agreement (J.Jill, Inc.)