Common use of Accounting Terms and Determinations; GAAP; Pro Forma Compliance Clause in Contracts

Accounting Terms and Determinations; GAAP; Pro Forma Compliance. (a) Unless otherwise specified herein, all accounting terms used herein shall be interpreted, all determinations with respect to accounting matters hereunder shall be made, and all financial statements and certificates and reports as to financial matters required to be furnished to the Administrative Agent or the Lenders hereunder shall be prepared, in accordance with GAAP, applied on a basis consistent with the Financial Statements except for changes in which the Borrower’s independent certified public accountants concur and which are disclosed to the Administrative Agent on the next date on which Financial Statements are required to be delivered to the Lenders pursuant to Section 8.01(a); provided that unless the Borrower and the Required Lenders shall otherwise agree in writing, no such change shall modify or affect the manner in which compliance with the covenants contained herein is computed such that all such computations shall be conducted utilizing financial information presented consistently with prior periods. (b) Notwithstanding GAAP or anything in this Agreement to the contrary, for the purposes of calculating the ratios that are the subject of Section 9.01 hereof and the components of each of them, all Excluded Subsidiaries (including the assets, liabilities, income, losses, cash flows and elements thereof) shall be excluded, except that any dividends or distributions actually paid in cash by any Person to the Borrower or any other Loan Party shall be deemed to be income to the Borrower or such other Loan Party, as applicable, when received by it whether or not constituting income in accordance with GAAP. (c) For purposes of determining hereunder whether the Borrower is in pro forma compliance with its applicable financial covenants contained in Section 9.01 hereof after the occurrence of a certain event (a “Subject Transaction”), in all cases such calculation shall be based on the financial information for the most recent Rolling Period for which financial information has been delivered to the Administrative Agent pursuant to Sections 8.01(a) or (b), and calculated as if such Subject Transaction had occurred on the first day of such applicable period. For the purposes of the definition of “Permitted Note Indebtedness”, the covenants (and levels thereof) that must be complied with are those set forth in Sections 9.01(a)(ii), 9.01(b), 9.01(c) and 9.01(d). For all other purposes hereunder, the covenants (and levels thereof) that must be complied with are those that were in effect as of the last day of the fiscal quarter most recently ended prior to such Subject Transaction.

Accounting Terms and Determinations; GAAP; Pro Forma Compliance. (a) Unless otherwise specified herein, all accounting terms used herein shall be interpreted, all determinations with respect to accounting matters hereunder shall be made, and all financial statements and certificates and reports as to financial matters required to be furnished to the Administrative Agent or the Lenders hereunder shall be prepared, in accordance with GAAP, applied on a basis consistent with the Financial Statements except for changes in which the Borrower’s independent certified public accountants concur and which are disclosed to the Administrative Agent on the next date on which Financial Statements are required to be delivered to the Lenders pursuant to Section 8.01(a); provided that unless the Borrower and the Required Lenders shall otherwise agree in writing, no such change shall modify or affect the manner in which compliance with the covenants contained herein is computed such that all such computations shall be conducted utilizing financial information presented consistently with prior periods. (b) Notwithstanding GAAP or anything in this Agreement to the contrary, for the purposes of calculating the ratios that are the subject of Section 9.01 hereof and the components of each of them, all Excluded Subsidiaries (including the assets, liabilities, income, losses, cash flows and elements thereof) shall be excluded, except that any dividends or distributions actually paid in cash by any Person to the Borrower or any other Loan Party shall be deemed to be income to the Borrower or such other Loan Party, as applicable, when received by it whether or not constituting income in accordance with GAAP. (c) For purposes of determining hereunder whether the Borrower is in pro forma compliance with its applicable financial covenants contained in Section 9.01 hereof after the occurrence of a certain event (a “Subject Transaction”), in all cases such calculation shall be based on the financial information for the most recent Rolling Period for which financial information has been delivered to the Administrative Agent pursuant to Sections 8.01(a) or (b), and calculated as if such Subject Transaction had occurred on the first day of such applicable period. For the purposes of the definition of “Permitted Note Indebtedness”, the covenants (and levels thereof) that must be complied with are those set forth in Sections 9.01(a)(ii), 9.01(b), and 9.01(c) and 9.01(d). For all other purposes hereunder, the covenants (and levels thereof) that must be complied with are those that were in effect as of the last day of the fiscal quarter most recently ended prior to such Subject Transaction.

Accounting Terms and Determinations; GAAP; Pro Forma Compliance. (a) Unless otherwise specified herein, all accounting terms used herein shall be interpreted, all determinations with respect to accounting matters hereunder shall be made, and all financial statements and certificates and reports as to financial matters required to be furnished to the Administrative Agent or the Lenders hereunder shall be prepared, in accordance with GAAP, applied on a basis consistent with the Financial Statements except for changes in which the Borrower’s independent certified public accountants concur and which are disclosed to the Administrative Agent on the next date on which Financial Statements are required to be delivered to the Lenders pursuant to Section 8.01(a); provided that unless the Borrower and the Required Lenders shall otherwise agree in writing, no such change shall modify or affect the manner in which compliance with the covenants contained herein is computed such that all such computations shall be conducted utilizing financial information presented consistently with prior periods. (b) Notwithstanding GAAP or anything in this Agreement to the contrary, for the purposes of calculating the ratios that are the subject of Section 9.01 hereof and the components of each of them, all Excluded Subsidiaries (including the assets, liabilities, income, losses, cash flows and elements thereof) shall be excluded, except that any dividends or distributions actually paid in cash by any Person to the Borrower or any other Loan Party shall be deemed to be income to the Borrower or such other Loan Party, as applicable, when received by it whether or not constituting income in accordance with GAAP. (c) For purposes of determining hereunder whether the Borrower is in pro forma compliance with its applicable financial covenants contained in Section 9.01 hereof after the occurrence of a certain event (a “Subject Transaction”), in all cases such calculation shall be based on the financial information for the most recent Rolling Period for which financial information has been delivered to the Administrative Agent pursuant to Sections 8.01(a) or (b), and calculated as if such Subject Transaction had occurred on the first day of such applicable period. For the purposes of the definition of “Permitted Note Indebtedness”” (but only in the event that the Borrower exercises the Permitted Notes Covenant Option) and the definition of “Permitted Acquisition” (but only in the event that such Permitted Acquisition is a Material Acquisition and the Borrower elects to temporarily increase the maximum Consolidated Total Leverage Ratio pursuant to Section 9.01), the covenants (and levels thereof) that must be complied with are those set forth that will be in Sections 9.01(a)(ii)effect as of the last day of the quarter in which such Permitted Note Indebtedness is incurred or such Material Acquisition is consummated, 9.01(b), 9.01(c) and 9.01(d)as applicable. For all other purposes hereunder, the covenants (and levels thereof) that must be complied with are those that were in effect as of the last day of the fiscal quarter most recently ended prior to such Subject Transaction.

Accounting Terms and Determinations; GAAP; Pro Forma Compliance. (a) Unless otherwise specified herein, all accounting terms used herein shall be interpreted, all determinations with respect to accounting matters hereunder shall be made, and all financial statements and certificates and reports as to financial matters required to be furnished to the Administrative Agent or the Lenders hereunder shall be prepared, in accordance with GAAP, applied on a basis consistent with the Financial Statements except for changes in which the Borrower’s independent certified public accountants concur and which are disclosed to the Administrative Agent on the next date on which Financial Statements are required to be delivered to the Lenders pursuant to Section 8.01(a); provided that unless the Borrower and the Required Lenders shall otherwise agree in writing, no such change shall modify or affect the manner in which compliance with the covenants contained herein is computed such that all such computations shall be conducted utilizing financial information presented consistently with prior periods. (b) Notwithstanding GAAP or anything in this Agreement to the contrary, for the purposes of calculating the ratios that are the subject of Section 9.01 hereof and the components of each of them, all Excluded Subsidiaries (including the assets, liabilities, income, losses, cash flows and elements thereof) shall be excluded, except that any dividends or distributions actually paid in cash by any Person to the Borrower or any other Loan Party shall be deemed to be income to the Borrower or such other Loan Party, as applicable, when received by it whether or not constituting income in accordance with GAAP. (c) For purposes of determining hereunder whether the Borrower is in pro forma compliance with its applicable financial covenants contained in Section 9.01 hereof after the occurrence of a certain event (a “Subject Transaction”), in all cases such calculation shall be based on the financial information for the most recent Rolling Period four-quarter period for which financial information has been delivered to the Administrative Agent pursuant to Sections 8.01(a) or (b), and calculated as if such Subject Transaction had occurred on the first day of such applicable period. For the purposes of the definition of “Permitted Note Indebtedness”” (but only in the event that the Borrower exercises the Permitted Notes Covenant Option) and the definition of “Permitted Acquisition” (but only in the event that such Permitted Acquisition is a Material Acquisition and the Borrower elects to temporarily increase the maximum Consolidated Total Leverage Ratio pursuant to Section 9.01), the covenants (and levels thereof) that must be complied with are those set forth that will be in Sections 9.01(a)(ii)effect as of the last day of the quarter in which such Permitted Note Indebtedness is incurred or such Material Acquisition is consummated, 9.01(b), 9.01(c) and 9.01(d)as applicable. For all other purposes hereunder, the covenants (and levels thereof) that must be complied with are those that were in effect as of the last day of the fiscal quarter most recently ended prior to such Subject Transaction.