Accounting Terms and Provisions. Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided that, if the Borrower notifies the Administrative Agent that the Borrower 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 the 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as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith; and provided further, that, if the Borrower elects to prepare and maintain its financial statements in accordance with the International Financial Reporting Standards, then (i) the Borrower shall notify the Administrative Agent of such election, (ii) compliance with the financial covenant set forth in Section 8.06 shall continue to be determined by reference to GAAP as in effect prior to such election and (iii) the Borrower shall deliver, together with any Compliance Certificate furnished pursuant to Section 7.02(a) or any other similar document, a reconciliation of its calculations with respect to Section 8.06 to its financial statements prepared in accordance with International Financial Reporting Standards and any other documents and information reasonably requested by the Administrative Agent relating thereto. Notwithstanding the foregoing, for purposes of determining compliance with the financial covenant set forth in Section 8.06, indebtedness of the Borrower and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded.
Appears in 3 contracts
Samples: Credit Agreement (Directv), Credit Agreement (Directv), Credit Agreement (Directv Holdings LLC)
Accounting Terms and Provisions. Except as otherwise expressly provided herein, all (a) All accounting terms of an accounting not specifically or financial nature completely defined herein shall be construed in accordance with GAAPconformity with, as in effect from time and all financial data (including financial ratios and other financial calculations) required to time; provided that, if the Borrower notifies the Administrative Agent that the Borrower requests an amendment be submitted pursuant 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 the 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 this Credit Agreement shall be interpreted prepared in conformity with, GAAP applied on a consistent basis in a manner consistent with that used in preparing the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith; and provided further, that, if the Borrower elects to prepare and maintain its audited financial statements referenced in Section 6.05, except (i) for purposes of determining Pro Forma Basis in connection with the Acquisition of a Person that prepared financial statements not in accordance with the International Financial Reporting Standards, then (i) the Borrower shall notify the Administrative Agent of GAAP prior to such election, Acquisition or (ii) compliance with the financial covenant set forth in Section 8.06 shall continue to be determined by reference to GAAP as in effect prior to such election and (iii) the Borrower shall deliver, together with any Compliance Certificate furnished pursuant to Section 7.02(a) or any other similar document, a reconciliation of its calculations with respect to Section 8.06 to its financial statements prepared in accordance with International Financial Reporting Standards and any other documents and information reasonably requested by the Administrative Agent relating theretootherwise specifically prescribed herein. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant set forth in Section 8.06covenant) contained herein, indebtedness Indebtedness of the Borrower and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded.
(b) Notwithstanding any provision herein to the contrary, determinations of (i) the Consolidated Total Leverage Ratio for purposes of determining the applicable pricing level under the definition of “Applicable Percentage,” (ii) compliance with covenants and conditions and (iii) revenues for determining Immaterial Subsidiaries shall be made on a Pro Forma Basis. To the extent compliance with the covenants in Section 8.10 is being calculated as of a date that is prior to the first test date under Section 8.10 in order to determine the permissibility of a transaction, the levels for the covenants as of the first test date under Section 8.10 shall apply for such purpose.
(c) If at any time any change in GAAP or in the consistent application thereof would affect the computation of any financial ratio or requirement set forth in any Credit Document, the Borrower may, after giving written notice thereof to the Administrative Agent, determine all such computations on such a basis; provided that if any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Credit Document, and either the Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided further that, until so amended (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Borrower shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Credit Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.
(d) All references herein to consolidated financial statements of the Borrower and its Subsidiaries or to the determination of any amount for the Borrower and its Subsidiaries on a consolidated basis or any similar reference shall, in each case, be deemed to include each variable interest entity that the Borrower is required to consolidate pursuant to FASB ASC 810 as if such variable interest entity were a Subsidiary as defined herein.
Appears in 2 contracts
Samples: Credit Agreement (Interval Leisure Group, Inc.), Credit Agreement (Interval Leisure Group, Inc.)
Accounting Terms and Provisions. Except as otherwise expressly provided herein, all (a) All accounting terms of an accounting not specifically or financial nature completely defined herein shall be construed in accordance conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, IFRS applied on a consistent basis in a manner consistent with GAAPthat used in preparing the audited financial statements referenced in Section 6.05, except as otherwise specifically prescribed herein. Notwithstanding any other provision contained herein, at any time after the Closing Date, the Borrower may elect (in effect from time its sole discretion), upon notice to timethe Administrative Agent, to apply GAAP accounting principles in lieu of IFRS and, upon any such election, references herein to IFRS shall thereafter be construed to mean GAAP (except as otherwise provided herein); provided that, if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to (x) any provision hereof to eliminate the effect of any change occurring after the date hereof calculation or determination in GAAP or in this Agreement that requires the application thereof on of IFRS for periods that include fiscal quarters ended prior to the operation of such provision (Borrower’s election to apply GAAP shall remain as previously calculated or if the Administrative Agent notifies the 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 shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith; and provided further, that, if the Borrower elects to prepare and maintain its financial statements determined in accordance with the International Financial Reporting StandardsIFRS, then (iy) the Borrower shall notify the Administrative Agent of such election, (iimay only make an election pursuant to this Section 1.03(a) compliance with the if it also elects to report any subsequent financial covenant set forth in Section 8.06 shall continue reports required to be determined made by reference the Borrower, including pursuant to GAAP as in effect prior to such election Sections 7.01(a) and (iii) b), in GAAP (and, to the Borrower shall deliver, together with any Compliance Certificate furnished pursuant to Section 7.02(a) or any other similar document, a reconciliation of its calculations with respect to Section 8.06 to its financial statements prepared in accordance with International Financial Reporting Standards and any other documents and information extent reasonably requested by the Administrative Agent relating thereto. and the Lenders, the Borrower shall provide a reconciliation between the calculations of any ratios or requirements hereunder made immediately before and immediately after giving effect to such change from IFRS to GAAP) and (z) any representation and warranty and/or covenant as it refers or applies to IFRS shall instead refer or apply to GAAP.
(b) Notwithstanding any provision herein to the foregoingcontrary, determinations of (i) the Consolidated Senior Secured Net Leverage Ratio for purposes of determining the applicable pricing level under the definition of “Applicable Rate” or “Commitment Fee Rate,” (ii) Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio, the Consolidated Total Net Leverage Ratio and the Consolidated Fixed Charge Coverage Ratio for the purposes of determining compliance with covenants, conditions and the financial covenant Incremental Loan Facilities and (iii) revenues for determining Material Subsidiaries and Immaterial Subsidiaries shall be made on a Pro Forma Basis.
(c) If, at any time after the Closing Date, any change in IFRS (or, if the Borrower has elected to convert to GAAP as set forth in Section 8.061.03(a), indebtedness GAAP) or in the consistent application thereof would affect the computation of any financial ratio or requirement set forth in any Credit Document, the Borrower may, after giving written notice thereof to the Administrative Agent, determine all such computations on such a basis; provided that, if any change in IFRS (or, if the Borrower has elected to convert to GAAP as set forth in Section 1.03(a), GAAP) would affect the computation of any financial ratio or requirement set forth in any Credit Document, and either the Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in IFRS (or, if the Borrower has elected to convert to GAAP as set forth in Section 1.03(a), GAAP) (subject to the approval of the Required Lenders); provided, further, that, until so amended (i) such ratio or requirement shall continue to be computed in accordance with IFRS (or, if the Borrower has elected to convert to GAAP as set forth in Section 1.03(a), GAAP) prior to such change therein and (ii) the Borrower shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in IFRS (or, if the Borrower has elected to convert to GAAP as set forth in Section 1.03(a), GAAP).
(d) Notwithstanding anything in this Agreement to the contrary, any obligation of the Borrower and and/or any of its Subsidiaries that would have been characterized as an operating lease as determined in accordance with IFRS as in effect prior to January 1, 2019 (whether or not such operating lease was in effect on such date) shall be deemed continue to be carried at 100% accounted for as an operating lease (and not as a capital lease) and be excluded from the definition of the outstanding principal amount thereof“Indebtedness” and other relevant definitions for all purposes under this Agreement, and the effects regardless of FASB ASC 825 and FASB ASC 470any change in IFRS following such date that would otherwise require such obligation to be re-20 on financial liabilities shall be disregardedcharacterized as a capital lease.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Akumin Inc.), Revolving Credit Agreement (Akumin Inc.)
Accounting Terms and Provisions. Except as otherwise expressly provided herein, all (a) All accounting terms of an accounting not specifically or financial nature completely defined herein shall be construed in accordance conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Credit Agreement shall be prepared in conformity with, GAAP applied on a consistent basis in a manner consistent with GAAPthat used in preparing the audited financial statements referenced in Section 6.05, except as in effect from time to time; provided that, if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to otherwise specifically prescribed herein.
(b) Notwithstanding any provision hereof herein to eliminate the effect contrary, determinations of any change occurring after (i) the Consolidated Total Leverage Ratio for purposes of determining the applicable pricing level under the definition of “Applicable Percentage,” (ii) compliance with covenants and conditions and (iii) revenues for determining Material Subsidiaries and Immaterial Subsidiaries shall be made on a Pro Forma Basis. To the extent compliance with the covenants in Section 8.10 is being calculated as of a date hereof that is prior to the first test date under Section 8.10 in GAAP or in order to determine the application thereof on permissibility of a transaction, the operation levels for the covenants as of such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof first test date under Section 8.10 shall apply for such purpose), regardless of whether .
(c) If at any such notice is given before or after such time any change in GAAP or in the consistent application thereofthereof would affect the computation of any financial ratio or requirement set forth in any Credit Document, then the Borrower may, after giving written notice thereof to the Administrative Agent, determine all such provision computations on such a basis; provided that if any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Credit Document, and either the Borrower or the Required Lenders shall be interpreted on so request, the basis Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewithGAAP (subject to the approval of the Required Lenders); and provided further, further that, if the Borrower elects until so amended (i) such ratio or requirement shall continue to prepare and maintain its financial statements be computed in accordance with the International Financial Reporting Standards, then GAAP prior to such change therein and (iii) the Borrower shall notify provide to the Administrative Agent and the Lenders financial statements and other documents required under this Credit Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such election, (ii) compliance with the financial covenant set forth in Section 8.06 shall continue to be determined by reference to GAAP as in ratio or requirement made before and after giving effect prior to such election and (iii) the Borrower shall deliver, together with any Compliance Certificate furnished pursuant to Section 7.02(a) or any other similar document, a reconciliation of its calculations with respect to Section 8.06 to its financial statements prepared change in accordance with International Financial Reporting Standards and any other documents and information reasonably requested by the Administrative Agent relating thereto. Notwithstanding the foregoing, for purposes of determining compliance with the financial covenant set forth in Section 8.06, indebtedness of the Borrower and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregardedGAAP.
Appears in 2 contracts
Samples: Credit Agreement (Interval Leisure Group, Inc.), Credit Agreement (HSN, Inc.)
Accounting Terms and Provisions. Except as otherwise expressly provided herein, all All accounting terms of an accounting not specifically or financial nature completely defined herein shall be construed in accordance with GAAPconformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Credit Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time; provided that. Notwithstanding any changes in GAAP after the Closing Date, if any lease of the Credit Parties and their Subsidiaries that would be characterized as an operating lease under GAAP in effect on the Closing Date (whether such lease is entered into before or after the Closing Date) shall not constitute Indebtedness, Attributable Indebtedness or a Capitalized Lease under this Agreement or any Credit Document as a result of such changes in GAAP.
(a) Notwithstanding any provision herein to the contrary, determinations of (i) the applicable pricing level under the definition of “Applicable Percentage” and (ii) compliance with the Financial Covenants shall be made on a Pro Forma Basis.
(b) If at any time after the Closing Date any change in GAAP or in the consistent application thereof would affect the operation of any provision set forth in any Credit Document, and either the Borrower notifies or the Administrative Agent that the Borrower Required Lenders 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 the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose)change, regardless of whether any such notice request is given before or after such change in GAAP or in the consistent application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice request shall have been withdrawn or such provision amended in accordance herewith; and provided further, that, if the Borrower elects to prepare and maintain its financial statements in accordance with the International Financial Reporting Standards, then (i) the Borrower shall notify the Administrative Agent of such election, (ii) compliance with the financial covenant set forth in Section 8.06 provision shall continue to be determined interpreted in accordance with GAAP prior to such change therein and (ii) the Borrower will provide, or cause to be provided, to the Administrative Agent and the Lenders, financial statements and related certificates and documents required hereunder or hereby as reasonably requested setting forth a reconciliation between calculations of such ratios or requirements made before and after giving effect to such changes in GAAP.
(c) With respect to any subject transaction that was permitted under any provision of this Agreement by reference to GAAP as a basket based on a percentage of Total Assets, the permissibility of such subject transaction shall not be affected by any subsequent fluctuations in effect prior to such election and (iii) the Borrower shall deliver, together with any Compliance Certificate furnished pursuant to Section 7.02(a) or any other similar document, a reconciliation of its calculations with respect to Section 8.06 to its financial statements prepared in accordance with International Financial Reporting Standards and any other documents and information reasonably requested by the Administrative Agent relating thereto. Notwithstanding the foregoing, for purposes of determining compliance with the financial covenant set forth in Section 8.06, indebtedness of the Borrower and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregardedTotal Assets.
Appears in 2 contracts
Samples: Credit Agreement (Mercury Systems Inc), Credit Agreement (Mercury Systems Inc)
Accounting Terms and Provisions. Except as otherwise expressly provided herein, all (a) All accounting terms of an accounting not specifically or financial nature completely defined herein shall be construed in accordance with GAAPconformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Credit Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time; provided that, if applied in a manner consistent with that used in preparing the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof audited financial statements referenced in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purposeSection 5.01(d), 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 except as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith; and provided further, that, if the Borrower elects to prepare and maintain its financial statements in accordance with the International Financial Reporting Standards, then (i) the Borrower shall notify the Administrative Agent of such election, (ii) compliance with the financial covenant set forth in Section 8.06 shall continue to be determined by reference to GAAP as in effect prior to such election and (iii) the Borrower shall deliver, together with any Compliance Certificate furnished pursuant to Section 7.02(a) or any other similar document, a reconciliation of its calculations with respect to Section 8.06 to its financial statements prepared in accordance with International Financial Reporting Standards and any other documents and information reasonably requested by the Administrative Agent relating theretootherwise specifically prescribed herein. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant set forth in Section 8.06covenant) contained herein, indebtedness of the Borrower and its Subsidiaries Indebtedness shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded.
(b) Notwithstanding any provision herein to the contrary, determinations of (i) the applicable pricing level under the definition of “Applicable Percentage” and (ii) compliance with the financial covenants shall be made on a Pro Forma Basis.
(c) If at any time any change in GAAP or in the consistent application thereof would affect the computation of any financial ratio or requirement set forth in any Credit Document, and either the Parent or the Required Lenders shall so request, the Domestic Administrative Agent, the Lenders and the Credit Parties shall negotiate in good faith to amend any such financial ratio or requirement hereunder that are affected by such change to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); providedthat, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Parent will provide, or cause to be provided, to the Domestic Administrative Agent and the Lenders, financial statements and related certificates and documents required hereunder or hereby as reasonably requested setting forth a reconciliation between calculations of such ratios or requirements made before and after giving effect to such changes in GAAP.
Appears in 1 contract
Accounting Terms and Provisions. Except as otherwise expressly provided herein, all (a) All accounting terms of an accounting not specifically or financial nature completely defined herein shall be construed in accordance with GAAPconformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Credit Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time; provided that, if applied in a manner consistent with that used in preparing the Borrower notifies the Administrative Agent that the Borrower 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 the 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 shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith; and provided further, that, if the Borrower elects to prepare and maintain its audited financial statements in accordance with for the International Financial Reporting Standardsfiscal year ending December 31, then (i) the Borrower shall notify the Administrative Agent of such election2010, (ii) compliance with the financial covenant set forth in Section 8.06 shall continue to be determined by reference to GAAP except as in effect prior to such election and (iii) the Borrower shall deliver, together with any Compliance Certificate furnished pursuant to Section 7.02(a) or any other similar document, a reconciliation of its calculations with respect to Section 8.06 to its financial statements prepared in accordance with International Financial Reporting Standards and any other documents and information reasonably requested by the Administrative Agent relating theretootherwise specifically prescribed herein. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant set forth in Section 8.06covenant) contained herein, indebtedness of the Borrower and its Subsidiaries Indebtedness shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 (Financial Instruments) and FASB ASC 470-20 (Debt) on financial liabilities shall be disregarded.
(b) Notwithstanding any provision herein to the contrary, determinations of (i) the applicable pricing level under the definition of “Applicable Percentage” and (ii) compliance with the financial covenants shall be made on a Pro Forma Basis.
(c) To the extent not otherwise described in the financial statements delivered pursuant to Section 7.01(a) or (b) or the other materials and information provided pursuant to Section 7.02, EWI will provide a written summary of material changes in GAAP or in the consistent application thereof and material changes in accounting policies or financial reporting practices with each annual and quarterly Compliance Certificate delivered in accordance with Section 7.02(b). If there is any change in GAAP or in the consistent application thereof after the date hereof that would affect the computation of any financial covenant, ratio or requirement set forth in any Credit Document, and either EWI or the Required Lenders shall so request, then the Administrative Agent, the Required Lenders and EWI agree to endeavor, in good faith, to agree upon an amendment to this Credit Agreement that would adjust such financial covenants, ratio or requirement in a manner that would preserve the original intent thereof, but would allow compliance therewith to be determined in accordance with the most recent financial statements delivered pursuant to Section 7.01(a) or (b), provided that, until so amended such financial covenants, ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein. Notwithstanding the forgoing, whenever in this Credit Agreement it is necessary to determine whether a lease is a Capital Lease or an operating lease, such determination shall be made on the basis of GAAP as in effect on the date hereof.
(d) All references herein to consolidated financial statements of the Consolidated Group or to the determination of any amount for the Consolidated Group on a consolidated basis or any similar reference shall, in each case, be deemed to include each variable interest entity that EWI is required to consolidate pursuant to FASB Interpretation No. 46 - Consolidation of Variable Interest Entities: an interpretation of ARB No. 51 (January 2003) as if such variable interest entity were a Subsidiary as defined herein.
(e) At any time after the Closing Date, EWI may elect to apply IFRS accounting principles in lieu of GAAP and, upon any such election, references in the Credit Documents to GAAP shall thereafter be construed to mean IFRS (except as otherwise provided in this Credit Agreement); provided that (1) any such election, once made, shall be irrevocable, (2) any calculation or determination in any Credit Document that requires the application of GAAP for any period that includes any fiscal quarter(s) ended prior to such election will be subject to the provisions of Section 1.03(c) above, (3) EWI may not make such election unless all other members of the Consolidated Group simultaneously make such election and (4) EWI will provide a reconciliation statement identifying the changes based on application of IFRS. EWI shall give the Administrative Agent at least thirty (30) days prior written notice of any such election.
Appears in 1 contract
Accounting Terms and Provisions. Except as otherwise expressly provided herein, all (a) All accounting terms of an accounting not specifically or financial nature completely defined herein shall be construed in accordance with GAAPconformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Credit Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time; provided that, if applied in a manner consistent with that used in preparing the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof audited financial statements referenced in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purposeSection 5.01(k), 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 except as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith; and provided further, that, if the Borrower elects to prepare and maintain its financial statements in accordance with the International Financial Reporting Standards, then (i) the Borrower shall notify the Administrative Agent of such election, (ii) compliance with the financial covenant set forth in Section 8.06 shall continue to be determined by reference to GAAP as in effect prior to such election and (iii) the Borrower shall deliver, together with any Compliance Certificate furnished pursuant to Section 7.02(a) or any other similar document, a reconciliation of its calculations with respect to Section 8.06 to its financial statements prepared in accordance with International Financial Reporting Standards and any other documents and information reasonably requested by the Administrative Agent relating theretootherwise specifically prescribed herein. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant set forth in Section 8.06covenant) contained herein, indebtedness of the Borrower and its Subsidiaries (i) Indebtedness shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) on financial liabilities (including valuing any such Indebtedness in a reduced or bifurcated manner as described therein) shall be disregarded.
(b) Notwithstanding any provision herein to the contrary, determinations of (i) the applicable pricing level under the definition of “Applicable Percentage” and (ii) compliance with the financial covenants shall be made on a Pro Forma Basis.
(c) If at any time any change in GAAP or in the consistent application thereof would affect the computation of any financial ratio or requirement set forth in any Credit Document, and either the Parent or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Credit Parties shall negotiate in good faith to amend any such financial ratio or requirement hereunder that are affected by such change to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Parent will provide, or cause to be provided, to the Administrative Agent and the Lenders, financial statements and related certificates and documents required hereunder or hereby as reasonably requested setting forth a reconciliation between calculations of such ratios or requirements made before and after giving effect to such changes in GAAP.
Appears in 1 contract
Accounting Terms and Provisions. Except as otherwise expressly provided herein, all (a) All accounting terms of an accounting not specifically or financial nature completely defined herein shall be construed in accordance with GAAPconformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Credit Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time; provided that, if applied in a manner consistent with that used in preparing the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof audited financial statements referenced in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purposeSection 4.01(d), 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 except as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith; and provided further, that, if the Borrower elects to prepare and maintain its financial statements in accordance with the International Financial Reporting Standards, then (i) the Borrower shall notify the Administrative Agent of such election, (ii) compliance with the financial covenant set forth in Section 8.06 shall continue to be determined by reference to GAAP as in effect prior to such election and (iii) the Borrower shall deliver, together with any Compliance Certificate furnished pursuant to Section 7.02(a) or any other similar document, a reconciliation of its calculations with respect to Section 8.06 to its financial statements prepared in accordance with International Financial Reporting Standards and any other documents and information reasonably requested by the Administrative Agent relating theretootherwise specifically prescribed herein. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant set forth covenant) contained herein, (i) with respect to the accounting for leases as either operating leases or capital leases and the impact of such accounting in Section 8.06accordance with Accounting Standards Codification 840 or otherwise on the definitions and covenants herein, indebtedness GAAP as in effect on the Closing Date shall be applied and (ii) Indebtedness of the Borrower and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded.
(b) Notwithstanding any provision herein to the contrary, determinations of (i) the applicable pricing level under the definition of “Applicable Percentage” and (ii) compliance with the financial covenants shall be made on a Pro Forma Basis.
(c) The Borrower will provide a written summary of material changes in GAAP or in the consistent application thereof with each annual and quarterly Compliance Certificate delivered in accordance with Section 6.01(c). If at any time any change in GAAP or in the consistent application thereof would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Borrower or the Required Lenders shall object in writing to determining compliance based on such change, then such computations shall continue to be made on a basis consistent with the most recent financial statements delivered pursuant to Section 6.01(a) or (b) as to which no such objection has been made.
Appears in 1 contract
Accounting Terms and Provisions. Except as otherwise expressly provided herein, all (a) All accounting terms of an accounting not specifically or financial nature completely defined herein shall be construed in accordance with GAAPconformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Credit Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time; provided that, if in a manner consistent with that used in preparing the Borrower notifies the Administrative Agent that the Borrower 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 the 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 shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith; and provided further, that, if the Borrower elects to prepare and maintain its audited financial statements in accordance with the International Financial Reporting Standards, then (i) the Borrower shall notify the Administrative Agent of such election, (ii) compliance with the financial covenant set forth referenced in Section 8.06 shall continue to be determined by reference to GAAP 6.05, except as in effect prior to such election and (iii) the Borrower shall deliver, together with any Compliance Certificate furnished pursuant to Section 7.02(a) or any other similar document, a reconciliation of its calculations with respect to Section 8.06 to its financial statements prepared in accordance with International Financial Reporting Standards and any other documents and information reasonably requested by the Administrative Agent relating theretootherwise specifically prescribed herein. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant set forth in Section 8.06covenant) contained herein, indebtedness Indebtedness of the Borrower and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded.
(b) Notwithstanding any provision herein to the contrary, determinations of (i) the Consolidated Total Leverage Ratio for purposes of determining the applicable pricing level under the definition of “Applicable Percentage,” (ii) compliance with covenants and conditions, and (iii) revenues for determining Immaterial Subsidiaries shall be made on a Pro Forma Basis. To the extent compliance with the covenants in Section 8.10 is being calculated as of a date that is prior to the first test date under Section 8.10 in order to determine the permissibility of a transaction, the levels for the covenants as of the first test date under Section 8.10 shall apply for such purpose.
(c) If at any time any change in GAAP or in the consistent application thereof would affect the computation of any financial ratio or requirement set forth in any Credit Document, and either the Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that, until so amended (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Borrower shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Credit Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.
(d) All references herein to consolidated financial statements of the Borrower and its Subsidiaries or to the determination of any amount for the Borrower and its Subsidiaries on a consolidated basis or any similar reference shall, in each case, be deemed to include each variable interest entity that the Borrower is required to consolidate pursuant to FASB ASC 810 as if such variable interest entity were a Subsidiary as defined herein.
Appears in 1 contract
Samples: Credit Agreement (HSN, Inc.)
Accounting Terms and Provisions. Except as otherwise expressly provided herein, all (a) All accounting terms of an accounting not specifically or financial nature completely defined herein shall be construed in accordance with GAAPconformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Credit Agreement shall be prepared in conformity with, IFRS applied on a consistent basis, as in effect from time to time; provided that, if applied in a manner consistent with that used in preparing the Borrower notifies the Administrative Agent that the Borrower 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 the 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 shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith; and provided further, that, if the Borrower elects to prepare and maintain its audited financial statements in accordance with for the International Financial Reporting Standardsfiscal year ending December 31, then (i) the Borrower shall notify the Administrative Agent of such election2016, (ii) compliance with the financial covenant set forth in Section 8.06 shall continue to be determined by reference to GAAP except as in effect prior to such election and (iii) the Borrower shall deliver, together with any Compliance Certificate furnished pursuant to Section 7.02(a) or any other similar document, a reconciliation of its calculations with respect to Section 8.06 to its financial statements prepared in accordance with International Financial Reporting Standards and any other documents and information reasonably requested by the Administrative Agent relating theretootherwise specifically prescribed herein. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, Indebtedness shall be based on the carrying amount of the financial liabilities and the effects of IAS 39 or IFRS 9 or similar positions under IFRS on financial liabilities shall be disregarded, in this respect.
(b) Notwithstanding any provision herein to the contrary, determinations of (i) the applicable Pricing Level under the definition of “Applicable Percentage” and (ii) compliance with the financial covenants shall be made on a Pro Forma Basis.
(c) To the extent not otherwise described in the financial statements delivered pursuant to Section 7.01(a) or (b) or the other materials and information provided pursuant to Section 7.02, FME will provide a written summary of material changes in IFRS or in the consistent application thereof to the extent that either affects the numeric value of any financial ratio or requirement herein or in any other Credit Document and material changes in accounting policies or financial reporting practices with each annual and quarterly Compliance Certificate delivered in accordance with Section 7.02(b). If there is any change in IFRS or in the consistent application thereof after the date hereof that would affect the computation of any financial covenant, ratio or requirement set forth in any Credit Document, and either FME or the Required Lenders shall so request, then the Administrative Agent, the Required Lenders and FME agree to endeavor, in good faith, to agree upon an amendment to this Credit Agreement that would adjust such financial covenants, ratio or requirement in a manner that would preserve the original intent thereof in light of such change in IFRS (subject to the approval of the Required Lenders), but would allow compliance therewith to be determined in accordance with the most recent financial statements delivered pursuant to Section 7.01(a) or (b), provided that, until so amended (i) such financial covenants, ratio or requirement shall continue to be computed in accordance with IFRS prior to such change therein and (ii) the Borrowers shall provide the Administrative Agent and the Lenders financial statements and other documents required under this Credit Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement before and after giving effect to such change in IFRS.
(i) for the purposes of any determination of the Consolidated Leverage Ratio hereunder (including as used in the determination of the applicable Pricing Level under Applicable Percentage hereunder and in the financial covenant set forth in Section 8.068.10), indebtedness any Dollar denominated amounts of Funded Debt, cash and cash equivalents as of the Borrower and its Subsidiaries last day of any fiscal quarter shall be deemed to be carried at 100% converted into Euros using the average rate of exchange for conversion for the period of four consecutive fiscal quarters ending as of the outstanding principal amount thereofdate of determination, rather than the spot rate therefor on such date, whether or not in conformity with the rules and requirements of IFRS, and the effects (ii) otherwise, for purposes of FASB ASC 825 determining compliance with any levels and FASB ASC 470-20 on financial liabilities tests set forth in Articles VII, VIII and/or IX, amounts shall be disregardedconverted into Euros on the basis of the exchange rates (as shown on Reuters ECB page 37 or other exchange rates used in preparing the annual audited financial statements under Section 7.01(a), as appropriate) as in effect on the date of the measurement.
(e) FME elected to apply IFRS accounting principles in lieu of GAAP on or about December 1, 2016, as permitted by the terms of this Credit Agreement.
Appears in 1 contract
Samples: Credit Agreement (Fresenius Medical Care AG & Co. KGaA)
Accounting Terms and Provisions. Except as otherwise expressly provided herein, all (a) All accounting terms of an accounting not specifically or financial nature completely defined herein shall be construed in accordance with GAAPconformity with, as in effect from time and all financial data (including financial ratios and other financial calculations) required to time; provided that, if the Borrower notifies the Administrative Agent that the Borrower requests an amendment be submitted pursuant 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 the 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 this Credit Agreement shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith; and provided further, that, if the Borrower elects to prepare and maintain its financial statements in accordance with the International Financial Reporting Standards, then (i) the Borrower shall notify the Administrative Agent of such election, (ii) compliance with the financial covenant set forth in Section 8.06 shall continue to be determined by reference to GAAP as in effect prior to such election and (iii) the Borrower shall deliver, together with any Compliance Certificate furnished pursuant to Section 7.02(a) or any other similar document, a reconciliation of its calculations with respect to Section 8.06 to its financial statements prepared in accordance with International Financial Reporting Standards and any other documents and information reasonably requested by the Administrative Agent relating theretoconformity with, GAAP. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant set forth in Section 8.06covenant) contained herein, indebtedness of the Borrower and its Subsidiaries Indebtedness shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 (Financial Instruments) and FASB ASC 470-20 (Debt) on financial liabilities shall be disregarded.
(b) Notwithstanding any provision herein to the contrary, determinations of compliance with the financial covenants shall be made on a Pro Forma Basis.
(c) To the extent not otherwise described in the financial statements delivered pursuant to Section 7.01(a) or (b) or the other materials and information provided pursuant to Section 7.02, EWI will provide a written summary of material changes in GAAP or in the consistent application thereof and material changes in accounting policies or financial reporting practices with each annual and quarterly Compliance Certificate delivered in accordance with Section 7.02(b). If there is any change in GAAP or in the consistent application thereof after the date hereof that would affect the computation of any financial covenant, ratio or requirement set forth in any Credit Document, and either EWI or the Required Lenders shall so request, regardless of whether any such request is given before or after such change in GAAP or in the application thereof, then the Administrative Agent, the Required Lenders and EWI agree to endeavor, in good faith, to agree upon an amendment to this Credit Agreement that would adjust such financial covenants, ratio or requirement in a manner that would preserve the original intent thereof, but would allow compliance therewith to be determined in accordance with the most recent financial statements delivered pursuant to Section 7.01(a) or (b), provided that, until so amended such financial covenants, ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein. Notwithstanding the forgoing, whenever in this Credit Agreement it is necessary to determine whether a lease is a Capital Lease or an operating lease, such determination shall be made on the basis of GAAP as in effect on the date hereof.
(d) All references herein to consolidated financial statements of the Consolidated Group or to the determination of any amount for the Consolidated Group on a consolidated basis or any similar reference shall, in each case, be deemed to include each variable interest entity that EWI is required to consolidate pursuant to FASB Interpretation No. 46 – Consolidation of Variable Interest Entities: an interpretation of ARB No. 51 (January 2003) as if such variable interest entity were a Subsidiary as defined herein.
(e) At any time after the Closing Date, EWI may elect to apply IFRS accounting principles in lieu of GAAP and, upon any such election, references in the Credit Documents to GAAP shall thereafter be construed to mean IFRS (except as otherwise provided in this Credit Agreement); provided that (1) any such election, once made, shall be irrevocable, (2) any calculation or determination in any Credit Document that requires the application of GAAP for any period that includes any fiscal quarter(s) ended prior to such election will be subject to the provisions of Section 1.03(c) above, (3) EWI may not make such election unless all other members of the Consolidated Group simultaneously make such election and (4) EWI will provide a reconciliation statement identifying the changes based on application of IFRS. EWI shall give the Administrative Agent at least thirty (30) days prior written notice of any such election.
Appears in 1 contract
Accounting Terms and Provisions. Except as otherwise expressly provided herein, all (a) All accounting terms of an accounting not specifically or financial nature completely defined herein shall be construed in accordance with GAAPconformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Credit Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time; provided that, if applied in a manner consistent with that used in preparing the Borrower notifies the Administrative Agent that the Borrower 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 the 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 shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith; and provided further, that, if the Borrower elects to prepare and maintain its audited financial statements in accordance with for the International Financial Reporting Standardsfiscal year ending December 31, then (i) the Borrower shall notify the Administrative Agent of such election2011, (ii) compliance with the financial covenant set forth in Section 8.06 shall continue to be determined by reference to GAAP except as in effect prior to such election and (iii) the Borrower shall deliver, together with any Compliance Certificate furnished pursuant to Section 7.02(a) or any other similar document, a reconciliation of its calculations with respect to Section 8.06 to its financial statements prepared in accordance with International Financial Reporting Standards and any other documents and information reasonably requested by the Administrative Agent relating theretootherwise specifically prescribed herein. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant set forth in Section 8.06covenant) contained herein, indebtedness of the Borrower and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 (Financial Instruments) and FASB ASC 470-20 (Debt) on financial liabilities shall be disregarded.
(b) Notwithstanding any provision herein to the contrary, determinations of (i) the applicable Pricing Level under the definition of “Applicable Percentage” and (ii) compliance with the financial covenants shall be made on a Pro Forma Basis.
(c) To the extent not otherwise described in the financial statements delivered pursuant to Section 7.01(a) or (b) or the other materials and information provided pursuant to Section 7.02, FME will provide a written summary of material changes in GAAP or in the consistent application thereof to the extent that either affects the numeric value of any financial ratio or requirement herein or in any other Credit Document and material changes in accounting policies or financial reporting practices with each annual and quarterly Compliance Certificate delivered in accordance with Section 7.02(b). If there is any change in GAAP (or the Borrowers’ adoption of IFRS as provided in Section 1.03(e) below) or in the consistent application thereof after the date hereof that would affect the computation of any financial covenant, ratio or requirement set forth in any Credit Document, and either FME or the Required Lenders shall so request, then the Administrative Agent, the Required Lenders and FME agree to endeavor, in good faith, to agree upon an amendment to this Credit Agreement that would adjust such financial covenants, ratio or requirement in a manner that would preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders), but would allow compliance therewith to be determined in accordance with the most recent financial statements delivered pursuant to Section 7.01(a) or (b), provided that, until so amended (i) such financial covenants, ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Borrowers shall provide the Administrative Agent and the Lenders financial statements and other documents required under this Credit Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement before and after giving effect to such change in GAAP. Notwithstanding anything contained herein to the contrary, it is understood and agreed that for purposes of this Credit Agreement, operating leases (as determined in accordance with GAAP on the Closing Date) will not be recharacterized as a capital lease or other obligation that would constitute Funded Debt hereunder, except for purposes of financial statement deliveries under Section 7.01.
(d) For purposes of determining compliance with any levels and tests set forth in Articles VII, VIII and/or IX, amounts shall be converted into Dollars or Euros, as appropriate, on the basis of the exchange rates (as shown on Reuters ECB page 37 or, if the same does not provide such exchange rates, on such other basis as is reasonably satisfactory to the Administrative Agent, or other exchange rates used in preparing the annual audited financial statements under Section 7.01(a), as appropriate) as in effect on the date of measurement.
(e) At any time after the Closing Date, FME may elect to apply IFRS accounting principles in lieu of GAAP and, upon any such election, references in the Credit Documents to GAAP shall thereafter be construed to mean IFRS (except as otherwise provided in this Credit Agreement); provided that (1) any such election, once made, shall be irrevocable, (2) FME may not make such election unless all other members of the Consolidated Group simultaneously make such election and (3) FME will provide a reconciliation statement identifying the changes based on application of IFRS. FME shall give the Administrative Agent at least thirty (30) days prior written notice of any such election.
Appears in 1 contract
Samples: Credit Agreement (Fresenius Medical Care AG & Co. KGaA)
Accounting Terms and Provisions. Except as otherwise expressly provided herein, all (a) All accounting terms of an accounting not specifically or financial nature completely defined herein shall be construed in accordance with GAAPconformity with, as in effect from time and all financial data (including financial ratios and other financial calculations) required to time; provided that, if the Borrower notifies the Administrative Agent that the Borrower requests an amendment be submitted pursuant 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 the 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 this Credit Agreement shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith; and provided further, that, if the Borrower elects to prepare and maintain its financial statements in accordance with the International Financial Reporting Standards, then (i) the Borrower shall notify the Administrative Agent of such election, (ii) compliance with the financial covenant set forth in Section 8.06 shall continue to be determined by reference to GAAP as in effect prior to such election and (iii) the Borrower shall deliver, together with any Compliance Certificate furnished pursuant to Section 7.02(a) or any other similar document, a reconciliation of its calculations with respect to Section 8.06 to its financial statements prepared in accordance with International Financial Reporting Standards and any other documents and information reasonably requested by the Administrative Agent relating theretoconformity with, GAAP. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant set forth in Section 8.06covenant) contained herein, indebtedness of the Borrower and its Subsidiaries Indebtedness shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 (Financial Instruments) and FASB ASC 470-20 (Debt) on financial liabilities shall be disregarded.
(b) Notwithstanding any provision herein to the contrary, determinations of compliance with the financial covenants shall be made on a Pro Forma Basis.
(c) To the extent not otherwise described in the financial statements delivered pursuant to Section 7.01(a) or (b) or the other materials and information provided pursuant to Section 7.02, EWI will provide a written summary of material changes in GAAP or in the consistent application thereof and material changes in accounting policies or financial reporting practices with each annual and quarterly Compliance Certificate delivered in accordance with Section 7.02(b). If there is any change in GAAP or in the consistent application thereof after the date hereof that would affect the computation of any financial covenant, ratio or requirement set forth in any Credit Document, and either EWI or the Required Lenders shall so request, regardless of whether any such request is given before or after such change in GAAP or in the application thereof, then the Administrative Agent, the Required Lenders and EWI agree to endeavor, in good faith, to agree upon an amendment to this Credit Agreement that would adjust such financial covenants, ratio or requirement in a manner that would preserve the original intent thereof, but would allow compliance therewith to be determined in accordance with the most recent financial statements delivered pursuant to Section 7.01(a) or (b), provided that, until so amended such financial covenants, ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein. Notwithstanding the forgoing, whenever in this Credit Agreement it is necessary to determine whether a lease is a Capital Lease or an operating lease, such determination shall be made on the basis of GAAP as in effect on the date hereof.
(d) All references herein to consolidated financial statements of the Consolidated Group or to the determination of any amount for the Consolidated Group on a consolidated basis or any similar reference shall, in each case, be deemed to include each variable interest entity that EWI is required to consolidate pursuant to FASB Interpretation No. 46 – Consolidation of Variable Interest Entities: an interpretation of ARB No. 51 (January 2003) as if such variable interest entity were a Subsidiary as defined herein. NYDOCS02/1161559.5 44
Appears in 1 contract
Accounting Terms and Provisions. Except as otherwise expressly provided herein, all (a) All accounting terms of an accounting not specifically or financial nature completely defined herein shall be construed in accordance with GAAPconformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Credit Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time; provided that, if applied in a manner consistent with that used in preparing the Borrower notifies the Administrative Agent that the Borrower 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 the 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 shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith; and provided further, that, if the Borrower elects to prepare and maintain its audited financial statements in accordance with for the International Financial Reporting Standardsfiscal year ending December 31, then (i) the Borrower shall notify the Administrative Agent of such election2010, (ii) compliance with the financial covenant set forth in Section 8.06 shall continue to be determined by reference to GAAP except as in effect prior to such election and (iii) the Borrower shall deliver, together with any Compliance Certificate furnished pursuant to Section 7.02(a) or any other similar document, a reconciliation of its calculations with respect to Section 8.06 to its financial statements prepared in accordance with International Financial Reporting Standards and any other documents and information reasonably requested by the Administrative Agent relating theretootherwise specifically prescribed herein. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant set forth in Section 8.06covenant) contained herein, indebtedness of the Borrower and its Subsidiaries Indebtedness shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 (Financial Instruments) and FASB ASC 470-20 (Debt) on financial liabilities shall be disregarded.
(b) Notwithstanding any provision herein to the contrary, determinations of (i) the applicable pricing level under the definition of “Applicable Percentage” and (ii) compliance with the financial covenants shall be made on a Pro Forma Basis.
(c) To the extent not otherwise described in the financial statements delivered pursuant to Section 7.01(a) or (b) or the other materials and information provided pursuant to Section 7.02, EWI will provide a written summary of material changes in GAAP or in the consistent application thereof and material changes in accounting policies or financial reporting practices with each annual and quarterly Compliance Certificate delivered in accordance with Section 7.02(b). If there is any change in GAAP or in the consistent application thereof after the date hereof that would affect the computation of any financial covenant, ratio or requirement set forth in any Credit Document, and either EWI or the Required Lenders shall so request, then the Administrative Agent, the Required Lenders and EWI agree to endeavor, in good faith, to agree upon an amendment to this Credit Agreement that would adjust such financial covenants, ratio or requirement in a manner that would preserve the original intent thereof, but would allow compliance therewith to be determined in accordance with the most recent financial statements delivered pursuant to Section 7.01(a) or (b), provided that, until so amended such financial covenants, ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein. Notwithstanding the forgoing, whenever in this Credit Agreement it is CHAR1\1346423v112 necessary to determine whether a lease is a Capital Lease or an operating lease, such determination shall be made on the basis of GAAP as in effect on the date hereof.
(d) All references herein to consolidated financial statements of the Consolidated Group or to the determination of any amount for the Consolidated Group on a consolidated basis or any similar reference shall, in each case, be deemed to include each variable interest entity that EWI is required to consolidate pursuant to FASB Interpretation No. 46 – Consolidation of Variable Interest Entities: an interpretation of ARB No. 51 (January 2003) as if such variable interest entity were a Subsidiary as defined herein.
(e) At any time after the Closing Date, EWI may elect to apply IFRS accounting principles in lieu of GAAP and, upon any such election, references in the Credit Documents to GAAP shall thereafter be construed to mean IFRS (except as otherwise provided in this Credit Agreement); provided that (1) any such election, once made, shall be irrevocable, (2) any calculation or determination in any Credit Document that requires the application of GAAP for any period that includes any fiscal quarter(s) ended prior to such election will be subject to the provisions of Section 1.03(c) above, (3) EWI may not make such election unless all other members of the Consolidated Group simultaneously make such election and (4) EWI will provide a reconciliation statement identifying the changes based on application of IFRS. EWI shall give the Administrative Agent at least thirty (30) days prior written notice of any such election.
Appears in 1 contract
Accounting Terms and Provisions. Except as otherwise expressly provided herein, all (a) All accounting terms of an accounting not specifically or financial nature completely defined herein shall be construed in accordance with GAAPconformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Credit Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time; provided that, if applied in a manner consistent with that used in preparing the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof audited financial statements referenced in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purposeSection 5.01(k), 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 except as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith; and provided further, that, if the Borrower elects to prepare and maintain its financial statements in accordance with the International Financial Reporting Standards, then (i) the Borrower shall notify the Administrative Agent of such election, (ii) compliance with the financial covenant set forth in Section 8.06 shall continue to be determined by reference to GAAP as in effect prior to such election and (iii) the Borrower shall deliver, together with any Compliance Certificate furnished pursuant to Section 7.02(a) or any other similar document, a reconciliation of its calculations with respect to Section 8.06 to its financial statements prepared in accordance with International Financial Reporting Standards and any other documents and information reasonably requested by the Administrative Agent relating theretootherwise specifically prescribed herein. Notwithstanding the foregoing, (x) for purposes of determining compliance with any covenant (including the computation of any financial covenant set forth in Section 8.06covenant) contained herein, indebtedness of the Borrower and its Subsidiaries 0 Indebtedness shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) on financial liabilities (including valuing any such Indebtedness in a reduced or bifurcated manner as described therein) shall be disregarded. and (y) for purposes of determining compliance with any provision of this Agreement, the determination of whether a lease is to be treated as an operating lease or capital lease shall be made without giving effect to any change in accounting for leases pursuant to GAAP resulting from the implementation of proposed Accounting Standards Update (ASU) Leases (Topic 840) issued August 17, 2010.
(b) Notwithstanding any provision herein to the contrary, determinations of (i) the applicable pricing level under the definition of “Applicable Percentage” and (ii) compliance with the financial covenants shall be made on a Pro Forma Basis.
(c) If at any time any change in GAAP or in the consistent application thereof would affect the computation of any financial ratio or requirement set forth in any Credit required by Regulation S-X together with those adjustments that (i) have been certified by a financial or accounting Responsible Officer of the Parent as having been prepared in good faith based upon reasonable assumptions and (ii) are based on reasonably detailed written assumptions reasonably acceptable to the Administrative Agent and (b) required by the definition of Consolidated EBITDA.
(d) In the event that the Parent or any Subsidiary incurs (including by assumption or guarantees) or repays (including by redemption, repayment, retirement or extinguishment) any Indebtedness included in the calculations of the Consolidated Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio (other than Indebtedness incurred or repaid under any revolving credit facility in the ordinary course of business for working capital purposes) subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then the Consolidated Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio, as applicable, shall be calculated giving pro forma effect to such incurrence or repayment of Indebtedness, to the extent required, as if the same had occurred on the last day of the applicable Test Period.
(e) In connection with a Limited Condition Acquisition, if compliance with any financial ratio with respect to the incurrence of Indebtedness or the making of Permitted Acquisitions (but, for the avoidance of doubt, excluding, for purposes of calculating the Financial Covenants set forth in Section 8.11, for purposes of determining the Applicable Percentage and for purposes of determining the ECF Percentage) is being determined on the date the definitive acquisition agreement for such Limited Condition Acquisition is entered into, then on or following the date of such determination and prior to the earlier of the date on which such Limited Condition Acquisition is consummated or the definitive agreement for such Limited Condition Acquisition is terminated, any determination of the Consolidated Total Net Leverage Ratio or the Consolidated Secured Net Leverage Ratio shall be calculated on a Pro Forma Basis assuming such Limited Condition Acquisition and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated, except to the extent that such calculation would result in a lower Consolidated Total Net Leverage Ratio or Consolidated Secured Net Leverage Ratio than would apply if such calculation was made without giving Pro Forma Effect to such Limited Condition Acquisition and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof).
Appears in 1 contract
Samples: Credit Agreement (Tempur Sealy International, Inc.)
