Common use of Calculation of Baskets Clause in Contracts

Calculation of Baskets. (a) If any of the baskets set forth in this Agreement are exceeded solely as a result of fluctuations to Consolidated EBITDA or Consolidated Total Assets for the most recently completed fiscal quarter after the last time such baskets were calculated for any purpose under this Agreement, such baskets will not be deemed to have been exceeded solely as a result of such fluctuations. (b) Notwithstanding anything to the contrary herein, with respect to any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement under any covenant that does not require compliance with a financial ratio or test (including, without limitation, pro forma compliance with any First Lien Net Leverage Ratio test, Total Net Leverage Ratio test, Senior Secured Net Leverage Ratio test and/or Fixed Charge Coverage Ratio test but excluding any Consolidated EBITDA test) (any such amounts, the “Fixed Amounts”) substantially concurrently with any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that requires compliance with any such financial ratio or test (any such amounts, the “Incurrence Based Amounts”), it is understood and agreed that the Fixed Amounts being substantially concurrently incurred (other than, in the case of any Fixed Amounts contained in Section 7.01 or Section 7.02, any refinancings of any Indebtedness that was previously incurred) shall be disregarded in the calculation of the financial ratio or test applicable to the Incurrence Based Amounts in connection with such substantially concurrent incurrence, except that (i) incurrences of Indebtedness and Liens constituting Fixed Amounts shall be taken into account for purposes of any Incurrence Based Amounts under any covenant other than Incurrence Based Amounts contained in Section 7.01 or Section 7.02 and (ii) any such calculation should not give effect to any cash proceeds thereof for netting purposes. (c) For purposes of determining compliance at any time with Section 2.14 and any section in Article VI and VII (and any defined term used in any such section), in the event that any Lien, Indebtedness, Asset Sales and other dispositions, Permitted Investments, Restricted Payment, Affiliate transaction or prepayment of Indebtedness meets the criteria of more than one of the categories of transactions or items (or any combination of one or more thereof) permitted pursuant to any clause of such Section 2.14 and any section in Article VI or VII (or any defined term used in any such section), Parent, in its sole discretion, may classify and/or reclassify or divide such transaction or item (or portion thereof) from time to time and will only be required to include the amount and type of such transaction (or portion thereof) in any one category.

Calculation of Baskets. (a) If any of the baskets set forth in this Agreement are exceeded solely as a result of fluctuations to Consolidated EBITDA or Consolidated Total Assets for the most recently completed fiscal quarter after the last time such baskets were calculated for any purpose under this Agreement, such baskets will not be deemed not to have been exceeded solely as a result of such fluctuations. (b) . Notwithstanding anything to the contrary herein, with respect to any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement under any covenant that does not require compliance with a financial ratio or test (including, without limitation, pro forma compliance with the Financial Covenant, any First Lien Net Leverage Ratio test, Total any Secured Net Leverage Ratio test, Senior Secured any Total Net Leverage Ratio test and/or any Fixed Charge Coverage Ratio test but excluding any Consolidated EBITDA test) (any such ratio or test, a “Financial Incurrence Test”) (any such amounts, including for the avoidance of doubt, any grower component based on Consolidated EBITDA or Consolidated Total Assets, the “Fixed Amounts”) substantially concurrently with any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that requires compliance with any such financial ratio or test Financial Incurrence Test (any such amounts, the “Incurrence Incurrence-Based Amounts”), it is understood and agreed that the Fixed Amounts being substantially concurrently incurred (other than, in the case of and any Fixed Amounts contained in Section 7.01 or Section 7.02, any refinancings of any Indebtedness that was previously incurredcash proceeds thereof) shall be disregarded in the calculation of the financial ratio or test Financial Incurrence Test applicable to the Incurrence Incurrence-Based Amounts in connection with such substantially concurrent incurrence; provided that, except notwithstanding anything else provided herein, any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that is expressly limited by a fixed-dollar limitation (iincluding any grower component based on a percentage of Consolidated EBITDA or Consolidated Total Assets) incurrences and that includes, as a condition to incurring (or consummating) applicable amounts or transactions, in reliance on such provision limited by a fixed-dollar limitation, a requirement of Indebtedness compliance with a Financial Incurrence Test (including, without limitation, applicable amounts or transactions incurred (or consummated) under clause (b) of the definition of Cumulative Amount) shall constitute a “Fixed Amount” hereunder. For the purposes of calculating any Incurrence-Based Amount under Section 6.01(r) hereof by reference to a financial ratio or test under the Second Lien Credit Agreement, “Unrestricted Cash and Liens constituting Fixed Amounts shall be taken into account Cash Equivalents” (or similar term) for purposes of such calculation shall have the meaning given to the term “Unrestricted Cash and Cash Equivalents” herein. Notwithstanding anything to the contrary herein, with respect to any amounts incurred or transactions entered into (or consummated) in reliance on a Financial Incurrence Based Amounts Test, such Financial Incurrence Test shall be calculated without giving effect to, and shall disregard, any Indebtedness concurrently incurred under any covenant other than Incurrence Based Amounts contained revolving credit facility in Section 7.01 connection with such amount incurred or Section 7.02 and (ii) any such calculation should not give effect to any cash proceeds thereof for netting purposestransaction entered into. (c) For purposes of determining compliance at any time with Section 2.14 and any section in Article VI and VII (and any defined term used in any such section), in the event that any Lien, Indebtedness, Asset Sales and other dispositions, Permitted Investments, Restricted Payment, Affiliate transaction or prepayment of Indebtedness meets the criteria of more than one of the categories of transactions or items (or any combination of one or more thereof) permitted pursuant to any clause of such Section 2.14 and any section in Article VI or VII (or any defined term used in any such section), Parent, in its sole discretion, may classify and/or reclassify or divide such transaction or item (or portion thereof) from time to time and will only be required to include the amount and type of such transaction (or portion thereof) in any one category.

Calculation of Baskets. (a) If any of the baskets set forth in this Agreement are exceeded solely as a result of fluctuations to Consolidated EBITDA or Consolidated Total Net Tangible Assets for the most recently completed fiscal quarter after the last time such baskets were calculated for any purpose under this Agreement, such baskets will not be deemed to have been exceeded solely as a result of such fluctuations. (b) Notwithstanding anything to the contrary hereinin this Agreement, with respect to any amounts incurred or transactions entered into (or consummated) in reliance on a Basket or other provision of this Agreement under (any covenant such Basket or other provision, a “Fixed Basket”) that does not require compliance with a financial ratio or test (including, without limitation, pro forma compliance Pro Forma Compliance with any Consolidated First Lien Net Leverage Ratio test, Consolidated Secured Net Leverage Ratio test, Consolidated Total Net Leverage Ratio test, Senior Secured Net Leverage Ratio test and/or any Fixed Charge Coverage Ratio test but excluding or any Consolidated EBITDA Interest Coverage Ratio test) (any such ratio or test, a “Financial Incurrence Test”) (any such amounts, including, for the avoidance of doubt, (i) Designated Funding Commitments and amounts drawn under the Facility and (ii) any grower component based on Consolidated EBITDA or Consolidated Net Tangible Assets, the “Fixed Amounts”) ), in each case, substantially concurrently with (or as part of a single transaction or a series of related transactions with) any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that requires compliance with any such financial ratio or test Financial Incurrence Test (any such amounts, the “Incurrence Incurrence-Based Amounts”), it is understood and agreed that the such Fixed Amounts being substantially concurrently (or any other amounts incurred under a Fixed Basket) (other than, in but giving full Pro Forma Effect to the case use of any Fixed Amounts contained in Section 7.01 or Section 7.02, any refinancings proceeds of any Indebtedness that was previously incurredall such amounts and concurrent related transactions) shall be disregarded in the calculation of the financial ratio or test any Financial Incurrence Test applicable to the Incurrence Incurrence-Based Amounts in connection with such that is substantially concurrent incurrence(or part of a single transaction or a series of related transactions); provided that, except notwithstanding anything to the contrary in this Agreement, any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that is expressly limited by a fixed-dollar limitation (iincluding any grower component based on a percentage of Consolidated EBITDA or Consolidated Net Tangible Assets) incurrences and that includes, as a condition to incurring amounts or entering into or consummating transactions, in reliance on such provision limited by a fixed-dollar limitation, a requirement of Indebtedness compliance with a Financial Incurrence Test (including, without limitation, incurring amounts or entering into or consummating transactions under clause (4) of the first paragraph of Section 7.05) shall constitute a “Fixed Amount” hereunder. If any Lien, Investment, Indebtedness, Asset Sale, Restricted Payment or Affiliate Transaction or other transaction, action, judgment or amount incurred under any provision in this Agreement or any other Loan Document (or any portion of the foregoing) previously divided and Liens constituting classified (or re-divided and re-classified) as set forth below under any Fixed Amounts Amount, could subsequently be re-divided and re-classified as an Incurrence-Based Amount, such re-division and re-classification shall be taken into account for purposes of any Incurrence Based Amounts under any covenant other than Incurrence Based Amounts contained deemed to occur automatically, in Section 7.01 or Section 7.02 and (ii) any such calculation should not give effect to any cash proceeds thereof for netting purposeseach case, unless otherwise elected by the Borrower Representative. (c) For purposes of determining compliance with Section 2.14 or any of the covenants set forth in Article VI or Article VII at any time with Section 2.14 and any section in Article VI and VII (and any defined term used in any such sectionwhether at the time of incurrence or thereafter), in the event that if any Lien, Investment, Indebtedness, Disqualified Stock, Preferred Stock, Asset Sale (or other disposition, sale or transfer of assets), Restricted Payment or Affiliate Transaction (or any portion of the foregoing) meets the criteria of one, or more than one, of the clauses of the provision permitting (including by way of exemption) such Lien, Investment, Indebtedness, Disqualified Stock, Preferred Stock, Asset Sale (or other disposition, sale or transfer of assets), Restricted Payment or Affiliate Transaction, as the case may be or any portion thereof, the Borrower Representative (i) shall in its sole discretion determine under which clause or clauses such Lien, Investment, Indebtedness, Asset Sales and Sale (or other dispositionsdisposition, Permitted Investmentssale or transfer of assets), Restricted Payment, Payment or Affiliate transaction or prepayment of Indebtedness meets the criteria of more than one of the categories of transactions or items (or or, in each case, any combination of one or more portion thereof) permitted pursuant to any clause of such Section 2.14 and any section in Article VI or VII (or any defined term used in any such section), Parentas the case may be, is classified and (ii) shall be permitted, in its sole discretion, to make any subsequent redetermination and/or to divide, classify or reclassify under which clause or clauses such Lien, Investment, Indebtedness, Disqualified Stock, Preferred Stock, Asset Sale (or other disposition, sale or transfer of assets), Restricted Payment or Affiliate Transaction, as the case may be, is permitted from time to time as it may determine and without notice to the Administrative Agent or any Lender (including to re-classify and/or utilization of any Fixed Amounts as being incurred under any Incurrence-Based Amounts or other Fixed Amounts or utilization of any Incurrence-Based Amounts as being incurred under any Fixed Amount or other Incurrence-Based Amounts); provided that (i) any amount incurred under a Fixed Amount which may later be reclassified as incurred under an Incurrence-Based Amount shall automatically be reclassified as incurred under the applicable Incurrence-Based Amount, unless otherwise elected by the Borrower Representative, (ii) all Indebtedness under this Agreement Incurred on or after the Closing Date shall be deemed to have been Incurred pursuant to Section 7.01(a) and the Borrower Representative shall not be permitted to reclassify all or divide any portion of Indebtedness Incurred on or after the Closing Date pursuant to Section 7.01(a), and (iii) all Indebtedness under the First Lien Credit Agreement Incurred on or after the Third Amendment Effective Date will be deemed to have been Incurred pursuant to Section 7.01(b) and all Indebtedness under the Second Lien Credit Agreement Incurred on or after the Closing Date will be deemed to have been Incurred pursuant to Section 7.01(b) and the Borrowers shall not be permitted to reclassify all or any portion of such Indebtedness. (d) If any Lien, Investment, Indebtedness, Disqualified Stock or Preferred Stock, Asset Sale (or other disposition or other sale or transfer of assets), Restricted Payment, Affiliate Transaction, or other transaction or item action is incurred, issued or consummated in reliance on a Basket measured by reference to a percentage of Consolidated EBITDA or Consolidated Net Tangible Assets, and any such Lien, Investment, Indebtedness, Disqualified Stock or preferred Capital Stock, disposition or other sale or transfer of assets, Restricted Payment, Affiliate transaction, Contractual Requirement, prepayment or redemption of Indebtedness or other transaction or action would subsequently exceed the applicable percentage of Consolidated EBITDA or Consolidated Net Tangible Assets, as applicable, under such Basket if calculated based on the Consolidated EBITDA or Consolidated Net Tangible Assets, as applicable, on a later date (including the date of any refinancing), such percentage of Consolidated EBITDA or portion Consolidated Net Tangible Assets, as applicable, will be deemed not to be exceeded; provided that, in the case of refinancing any Indebtedness, Disqualified Stock or Preferred Stock (and any related Lien) in reliance on this clause (d), the principal amount of such refinancing Indebtedness, Disqualified Stock or Preferred Stock does not exceed the aggregate outstanding principal amount, accreted value or liquidation preference of the refinanced Indebtedness, Disqualified Stock or Preferred Stock, plus any Incremental Amounts Incurred in connection with the refinancing of such Indebtedness, Disqualified Stock or Preferred Stock and the incurrence or issuance of such refinancing Indebtedness, Disqualified Stock or Preferred Stock. (e) With respect to any Designated Funding Commitment (to the extent loans funded under such Designated Funding Commitment would constitute Indebtedness, or Capital Stock issued pursuant to such Designated Funding Commitment would constitute Disqualified Stock or Preferred Stock, in each case, that is subject to Section 7.01), except for purposes of determining the “Applicable Rate”, the incurrence or issuance of such Indebtedness (and any Lien in connection therewith), Disqualified Stock or Preferred Stock, as applicable, by a Borrower or any Restricted Subsidiary provided for under such Designated Funding Commitment shall be deemed to occur (on a Pro Forma Basis after giving effect to the incurrence or issuance of the entire committed amount thereof (but without netting any cash proceeds thereof)) on the date of designation of such commitment as a Designated Funding Commitment (and any such unfunded commitment constituting a Designated Funding Commitment under this Agreement shall be deemed outstanding for purposes of incurring or issuing any other Indebtedness, Disqualified Stock or Preferred Stock or Lien under this Agreement, in each case, at all times such designated commitments remain outstanding) and, from and after such designation, so long as such incurrence or issuance is permitted under this Agreement on the date of such designation, Borrower and/or its applicable Restricted Subsidiaries may incur or issue such Indebtedness (including any borrowing, re-borrowing and issuance of letters of credit thereunder)) (and any Lien in connection therewith), Disqualified Stock or Preferred Stock up to the committed amount thereof so designated under such Designated Funding Commitment without further compliance with, or determination of availability under, any Financial Incurrence Test, Incurrence-Based Amount, Fixed Amount, Fixed Basket or other Basket under this Agreement; provided that, for the avoidance of doubt, (i) the Borrower Representative may revoke any such designation as a Designated Funding Commitment in accordance with the definition thereof at any time and from time to time and will only (ii) if any such Designated Funding Commitment is drawn, such Indebtedness shall be required deemed to include be outstanding for purposes of testing each applicable Financial Incurrence Test. (f) Notwithstanding anything to the amount contrary set forth herein, for the avoidance of doubt and type without duplication of such transaction any applicable Basket set forth herein, the Loan Documents shall be deemed to permit (x) the Transactions and (y) any Transition Arrangements (or portion thereof) any other transition or shared services agreements and arrangements in any one categoryconnection with the Acquisition or otherwise contemplated under the Purchase Agreement that, in each case, are not materially more adverse to the interest of the Borrower and its Restricted Subsidiaries than the Transition Arrangements entered into on or prior to the Third Amendment Effective Date).

Calculation of Baskets. (a) If any of the baskets set forth in this Agreement are exceeded solely as a result of fluctuations to Consolidated EBITDA or Consolidated Total Assets for the most recently completed fiscal quarter after the last time such baskets were calculated for any purpose under this Agreement, such baskets will not be deemed to have been exceeded solely as a result of such fluctuations. (b) Notwithstanding anything to the contrary herein, with respect to any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement under any covenant that does not require compliance with a financial ratio or test (including, without limitation, pro forma compliance with any First Lien Net Leverage Ratio test, Total Net Leverage Ratio test, Senior Secured Net Leverage Ratio test and/or Fixed Charge Coverage Ratio test but excluding any Consolidated EBITDA test) (any such amounts, the “Fixed Amounts”) substantially concurrently with any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that requires compliance with any such financial ratio or test (any such amounts, the “Incurrence Based Amounts”), it is understood and agreed that the Fixed Amounts being substantially concurrently incurred (other than, in the case of any Fixed Amounts contained in Section 7.01 or Section 7.02, any refinancings of any Indebtedness that was previously incurred) shall be disregarded in the calculation of the financial ratio or test applicable to the Incurrence Based Amounts in connection with such substantially concurrent incurrence, except that (i) incurrences of Indebtedness and Liens constituting Fixed Amounts shall be taken into account for purposes of any Incurrence Based Amounts under any 98 covenant other than Incurrence Based Amounts contained in Section 7.01 or Section 7.02 and (ii) any such calculation should not give effect to any cash proceeds thereof for netting purposes. (c) For purposes of determining compliance at any time with Section 2.14 and any section in Article VI and VII (and any defined term used in any such section), in the event that any Lien, Indebtedness, Asset Sales and other dispositions, Permitted Investments, Restricted Payment, Affiliate transaction or prepayment of Indebtedness meets the criteria of more than one of the categories of transactions or items (or any combination of one or more thereof) permitted pursuant to any clause of such Section 2.14 and any section in Article VI or VII (or any defined term used in any such section), Parent, in its sole discretion, may classify and/or reclassify or divide such transaction or item (or portion thereof) from time to time and will only be required to include the amount and type of such transaction (or portion thereof) in any one category.

Calculation of Baskets. (a) If any of the baskets set forth in this Agreement are exceeded solely as a result of fluctuations to Consolidated EBITDA or Consolidated Total Assets for the most recently completed fiscal quarter after the last time such baskets were calculated for any purpose under this Agreement, such baskets will not be deemed not to have been exceeded solely as a result of such fluctuations. (b) . Notwithstanding anything to the contrary herein, with respect to any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement under any covenant that does not require compliance with a financial ratio or test (including, without limitation, pro forma compliance with any First Lien Secured Net Leverage Ratio test, any Total Net Leverage Ratio test, Senior Secured Net Leverage Ratio test and/or any Fixed Charge Coverage Ratio test but excluding any Consolidated EBITDA test) (any such ratio or test, a “Financial Incurrence Test”) (any such amounts, including for the avoidance of doubt, any grower component based on Consolidated EBITDA or Consolidated Total Assets, the “Fixed Amounts”) substantially concurrently with any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that requires compliance with any such financial ratio or test Financial Incurrence Test (any such amounts, the “Incurrence Incurrence-Based Amounts”), it is understood and agreed that the Fixed Amounts being substantially concurrently incurred (other than, in the case of and any Fixed Amounts contained in Section 7.01 or Section 7.02, any refinancings of any Indebtedness that was previously incurredcash proceeds thereof) shall be disregarded in the calculation of the financial ratio or test Financial Incurrence Test applicable to the Incurrence Incurrence-Based Amounts in connection with such substantially concurrent incurrence; provided that, except notwithstanding anything else provided herein, any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that is expressly limited by a fixed-dollar limitation (iincluding any grower component based on a percentage of Consolidated EBITDA or Consolidated Total Assets) incurrences and that includes, as a condition to incurring (or consummating) applicable amounts or transactions, in reliance on such provision limited by a fixed-dollar limitation, a requirement of Indebtedness and Liens constituting compliance with a Financial Incurrence Test (including, without limitation, applicable amounts or transactions incurred (or consummated) under clause (b) of the definition of Cumulative Amount) shall constitute a “Fixed Amounts Amount” hereunder. Notwithstanding anything to the contrary herein, with respect to any amounts incurred or transactions entered into (or consummated) in reliance on a Financial Incurrence Test, such Financial Incurrence Test shall be taken into account for purposes of calculated without giving effect to, and shall disregard, any Incurrence Based Amounts Indebtedness concurrently incurred under any covenant other than Incurrence Based Amounts contained revolving credit facility in Section 7.01 connection with such amount incurred or Section 7.02 and (ii) any such calculation should not give effect to any cash proceeds thereof for netting purposestransaction entered into. (c) For purposes of determining compliance at any time with Section 2.14 and any section in Article VI and VII (and any defined term used in any such section), in the event that any Lien, Indebtedness, Asset Sales and other dispositions, Permitted Investments, Restricted Payment, Affiliate transaction or prepayment of Indebtedness meets the criteria of more than one of the categories of transactions or items (or any combination of one or more thereof) permitted pursuant to any clause of such Section 2.14 and any section in Article VI or VII (or any defined term used in any such section), Parent, in its sole discretion, may classify and/or reclassify or divide such transaction or item (or portion thereof) from time to time and will only be required to include the amount and type of such transaction (or portion thereof) in any one category.