Calculations; Computations. (a) The financial statements to be furnished to the Lenders pursuant hereto shall be made and prepared in accordance with GAAP consistently applied throughout the periods involved (except as set forth in the notes thereto); provided that, (i) except as otherwise specifically provided herein, all computations and all definitions (including accounting terms) used in determining compliance with Sections 2.14, 8.13 and 9 and calculations of the First Lien Net Leverage Ratio, Secured Net Leverage Ratio, Total Net Leverage Ratio and Interest Coverage Ratio, shall utilize GAAP and policies in conformity with those used to prepare the Pro Forma Financial Statements (subject to purchase accounting and other adjustments reasonably satisfactory to the Administrative Agent as a result of the Acquisition); 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 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of GAAP as in effect and applied immediately before such change becomes effective until such notice shall have been withdrawn or such provision amended in accordance herewith; provided, further, that if such an amendment is requested by the Borrower or the Required Lenders, then the Borrower and the Administrative Agent shall negotiate in good faith to enter into an amendment of the relevant affected provisions (without the payment of any amendment or similar fee to the Lenders) to preserve the original intent thereof in light of such change in GAAP or the application thereof, (ii) except as otherwise expressly provided herein, for purposes of calculating financial terms, all covenants and related definitions, all such calculations shall be based on the operations, assets and results of the Borrower and its Restricted Subsidiaries on a consolidated basis and shall be made without giving effect to the operations, assets or results of any Unrestricted Subsidiaries, (iii) notwithstanding anything to the contrary contained herein, all covenants and financial ratios contained herein or in any other Credit Document shall be calculated, in each case, without giving effect to any election under FASB ASC 825 (or any similar accounting principle) permitting a Person to value its financial liabilities at the fair value thereof, (iv) all financial statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of any accounting change shall contain a schedule showing the adjustments, in any, necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting changes, and (v) all references in this Agreement to a four-Fiscal Quarter period of the Borrower referring to a period prior to the Closing Date shall refer to the applicable period prior to the Closing Date as if the Borrower had existed and the Transaction has occurred on the first day of said period.
Appears in 1 contract
Calculations; Computations. (a) The financial statements to be furnished to the Lenders pursuant hereto shall be made and prepared in accordance with GAAP consistently applied throughout the periods involved (except as set forth in the notes thereto); provided that, (i) except as otherwise specifically provided herein, all computations and all definitions (including accounting terms) used in determining compliance with Sections 2.14, 8.13 and 9 and calculations of the First Lien Net Leverage Ratio, Secured Net Leverage Ratio, Total Net Leverage Ratio and Interest Coverage Ratio, shall utilize GAAP and policies in conformity with those used effect from time to prepare the Pro Forma Financial Statements (subject to purchase accounting and other adjustments reasonably satisfactory to the Administrative Agent as a result of the Acquisition)time; provided that if the Borrower Company notifies the Administrative Agent that the Borrower it requests an amendment to any provision hereof to eliminate the effect of any change occurring in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrower Company that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change becomes shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith; provided. The Company shall have the right, furtherif required by relevant regulatory authorities, that if such an amendment is requested to adopt the International Financial Reporting Standards, as promulgated by the Borrower International Accounting Standards Board (or any successor board or agency), as in effect on the Required Lenders, then the Borrower and the Administrative Agent shall negotiate in good faith to enter into an amendment date of the relevant affected provisions (without the payment of any amendment or similar fee to the Lenders) to preserve the original intent thereof in light of such change in GAAP or the application thereofelection, (ii) except as otherwise expressly provided hereinwhich election shall, for purposes of calculating financial termsthis Agreement, all covenants and related definitions, all such calculations shall be based on the operations, assets and results of the Borrower and its Restricted Subsidiaries on treated as a consolidated basis permitted change in GAAP and shall be made without giving effect subject to the operations, assets or results terms of the immediately preceding sentence. Notwithstanding any Unrestricted Subsidiaries, (iii) notwithstanding anything to the contrary other provision contained herein, all covenants and terms of an accounting or financial ratios contained nature used herein or in any other Credit Document shall be calculatedconstrued, in each caseand all computations of amounts and ratios referred to herein shall be made, without giving effect to any election under FASB (i) Statement of Financial Accounting Standards 141R or ASC 825 805 (or any other financial accounting standard having a similar result or effect) and (ii) Financial Accounting Standards Board Accounting Standards Codification 825 and Financial Accounting Standards Board Accounting Standards Codification 470-20 on financial liabilities. Notwithstanding any other provision contained herein, any lease which was (or would have been) classified as an operating lease under the Company’s accounting principle) permitting a Person to value its financial liabilities at the fair value thereof, (iv) all financial statements delivered to the Administrative Agent treatment thereof in accordance with the terms of this Agreement after the date of any accounting change shall contain a schedule showing the adjustments, in any, necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting changeson the date of the Existing Credit Agreement shall not constitute a capital lease under this Agreement, and the obligations or liabilities thereunder shall not constitute capitalized lease obligations under this Agreement, notwithstanding any changes in GAAP (vor the required implementation of any previously promulgated changes in GAAP) all references in this Agreement subsequent to a four-Fiscal Quarter period the date of the Borrower referring to a period prior Existing Credit Agreement (whether before or after the Closing Date) relating to the Closing Date shall refer to the applicable period prior to the Closing Date treatment of a lease as if the Borrower had existed and the Transaction has occurred on the first day of said periodan operating lease or capitalized lease.
Appears in 1 contract
Calculations; Computations. (axxxvii) The financial statements to be furnished to the Lenders pursuant hereto shall be made and prepared in accordance with GAAP generally accepted accounting principles in the United States consistently applied throughout the periods involved (except as set forth in the notes theretothereto or as otherwise disclosed in writing by Holdings to the Lenders); provided that, PROVIDED that (i) except as otherwise specifically provided herein, all computations of the Available Basket Amount, Consolidated Cumulative 25% Net Income, the Applicable Margins and all definitions (including accounting terms) used in computations determining compliance with Sections 2.144.02, 8.13 and 9 and calculations of the First Lien Net Leverage Ratio, Secured Net Leverage Ratio, Total Net Leverage Ratio and Interest Coverage Ratio, shall utilize GAAP accounting principles and policies in conformity with those used to prepare the Pro Forma Financial Statements historical financial statements for the fiscal year ended December 31, 1998 delivered to the Lenders pursuant to Section 7.05(a) (with the foregoing generally accepted accounting principles, subject to purchase accounting and other adjustments reasonably satisfactory the preceding proviso, herein called "GAAP"), (ii) to the Administrative Agent extent expressly required pursuant to the provisions of this Agreement, certain calculations shall be made on a PRO FORMA Basis, (iii) for all purposes of this Agreement, all Attributed Receivables Facility Indebtedness shall be included as a result of the Acquisition); provided that if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring in GAAP or Indebtedness in the application thereof on the operation consolidated financial statements of such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose)Holdings and its Subsidiaries, and shall be considered Indebtedness of a Subsidiary of Holdings hereunder, regardless of whether any such notice is given before differing treatment pursuant to generally acceptable accounting principles, (iv) for purposes of determining compliance with any incurrence tests set forth in Sections 8 and/or 9 (excluding Sections 9.08 and 9.09), any amounts so incurred or after such change expended (to the extent incurred or expended in GAAP or in the application thereof, then such provision a currency other than Dollars) shall be interpreted converted into Dollars on the basis of GAAP the Dollar Equivalent of such amounts as in effect on the date of such incurrence or expenditure under any provision of any such Section that has an aggregate Dollar limitation provided for therein (and applied immediately before such change becomes effective until such notice to the extent the respective incurrence test regulates the aggregate amount outstanding at any time and it is expressed in terms of Dollars, all outstanding amounts originally incurred or spent in currencies other than Dollars shall have been withdrawn or such provision amended in accordance herewith; provided, further, that if such an amendment is requested by be converted into Dollars on the Borrower or the Required Lenders, then the Borrower and the Administrative Agent shall negotiate in good faith to enter into an amendment basis of the relevant affected provisions (without Dollar Equivalent of such amounts as in effect on the payment date any new incurrence or expenditures made under any provision of any amendment or similar fee to such Section that regulates the LendersDollar amount outstanding at any time), and (v) to preserve the original intent thereof in light of such change in GAAP or the application thereof, (ii) except as otherwise expressly provided herein, for purposes of calculating financial terms, all covenants and related definitions, all such calculations shall be based on the operations, assets and results operations of the Borrower Holdings and its Restricted Subsidiaries on a consolidated basis and shall be made without giving effect to the operations, assets or results operations of any Unrestricted Subsidiaries, (iii) notwithstanding anything to the contrary contained herein, all covenants and financial ratios contained herein or in any other Credit Document shall be calculated, in each case, without giving effect to any election under FASB ASC 825 (or any similar accounting principle) permitting a Person to value its financial liabilities at the fair value thereof, (iv) all financial statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of any accounting change shall contain a schedule showing the adjustments, in any, necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting changes, and (v) all references in this Agreement to a four-Fiscal Quarter period of the Borrower referring to a period prior to the Closing Date shall refer to the applicable period prior to the Closing Date as if the Borrower had existed and the Transaction has occurred on the first day of said period.
Appears in 1 contract
Samples: Credit Agreement (Vertis Inc)
Calculations; Computations. (a) The financial statements to be furnished to the Lenders pursuant hereto shall be made and prepared in accordance with GAAP consistently applied throughout the periods involved (except as set forth in the notes thereto); provided provided, that, (i) except as otherwise specifically provided herein, all computations and all definitions (including accounting terms) used in determining compliance with Sections Section 2.14, 8.13 and 9 and calculations of the First Lien Net Leverage Ratio, Secured Net Leverage Ratio, Total Net Leverage Ratio and Interest Coverage Ratio, shall utilize GAAP and policies in conformity with those used to prepare the Pro Forma Financial Statements (subject to purchase accounting and other adjustments reasonably satisfactory to the Administrative Agent Required Lenders as a result of the Acquisition); provided 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 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 becomes effective until such notice shall have been withdrawn or such provision amended in accordance herewith; provided, further, that if such an amendment is requested by the Borrower or the Required Lenders, then the Borrower and the Administrative Agent Required Lenders shall negotiate in good faith to enter into an amendment of the relevant affected provisions (without the payment of any amendment or similar fee to the Lenders) to preserve the original intent thereof in light of such change in GAAP or the application thereof, (ii) except as otherwise expressly provided herein, for purposes of calculating financial terms, all covenants and related definitions, all such calculations shall be based on the operations, assets and results of the Borrower and its Restricted Subsidiaries on a consolidated basis and shall be made without giving effect to the operations, assets or results of any Unrestricted Subsidiariesbasis, (iii) notwithstanding anything to the contrary contained herein, all covenants and financial ratios contained herein or in any other Credit Document shall be calculated, in each case, without giving effect to any election under FASB ASC 825 (or any similar accounting principle) permitting a Person to value its financial liabilities at the fair value thereof, (iv) all financial statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of any accounting change shall contain a schedule showing the adjustments, in if any, necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting changes, and (v) all references in this Agreement to a four-Fiscal Quarter period of the Borrower referring to a period prior to the Closing Date shall refer to the applicable period prior to the Closing Date as if the Borrower had existed and the Transaction has occurred on the first day of said period.
Appears in 1 contract
Samples: Credit Agreement (J.Jill, Inc.)
Calculations; Computations. (a) The financial statements to be furnished to the Lenders pursuant hereto shall be made and prepared in accordance with GAAP consistently applied throughout the periods involved (except as set forth in the notes thereto); provided provided, that, (i) except as otherwise specifically provided herein, all computations and all definitions (including accounting terms) used in determining compliance with Sections 2.142.15, 8.13 and 9 and calculations of the First Lien Net Leverage Ratio, Secured Net Leverage Ratio, Ratio and Total Net Leverage Ratio and Interest Coverage Ratio, shall utilize GAAP and policies in conformity with those used to prepare the Pro Forma Financial Statements (subject to purchase accounting and other adjustments reasonably satisfactory to the Administrative Agent as a result of the Acquisition)GAAP; provided 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 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 becomes effective until such notice shall have been withdrawn or such provision amended in accordance herewith; provided, further, that if such an amendment is requested by the Borrower or the Required Lenders, then the Borrower and the Administrative Agent shall negotiate in good faith to enter into an amendment of the relevant affected provisions (without the payment of any amendment or similar fee to the Lenders) to preserve the original intent thereof in light of such change in GAAP or the application thereof, (ii) except as otherwise expressly provided herein, for purposes of calculating 154 financial terms, all covenants and related definitions, all such calculations shall be based on the operations, assets and results of the Borrower and its Restricted Subsidiaries on a consolidated basis and shall be made without giving effect to the operations, assets or results of any Unrestricted Subsidiariesbasis, (iii) notwithstanding anything to the contrary contained herein, all covenants and financial ratios contained herein or in any other Credit Document shall be calculated, in each case, without giving effect to any election under FASB ASC 825 (or any similar accounting principle) permitting a Person to value its financial liabilities at the fair value thereof, (iv) all financial statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of any accounting change shall contain a schedule showing the adjustments, in if any, necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting changes, and (v) all references in this Agreement to a four-Fiscal Quarter period of the Borrower referring to a period prior to the Closing Date shall refer to the applicable period prior to the Closing Date as if the Borrower had existed and the Transaction has occurred on the first day of said period.
Appears in 1 contract
Calculations; Computations. (a) The financial statements to be furnished to the Lenders pursuant hereto shall be made and prepared in accordance with GAAP consistently applied throughout the periods involved (except as set forth in the notes thereto); provided that, (i) except thereto or as otherwise specifically provided herein, all computations and all definitions (including accounting terms) used disclosed in determining compliance with Sections 2.14, 8.13 and 9 and calculations of writing by the First Lien Net Leverage Ratio, Secured Net Leverage Ratio, Total Net Leverage Ratio and Interest Coverage Ratio, shall utilize GAAP and policies in conformity with those used to prepare the Pro Forma Financial Statements (subject to purchase accounting and other adjustments reasonably satisfactory Borrower to the Administrative Agent as a result of the AcquisitionLenders); provided that (i) all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided, however, that (A) if Holdings or the Borrower notifies the Administrative Agent that the Borrower Holdings requests an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies Holdings that the Borrower that Administrative Agent or the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then until such notice shall have been withdrawn or such provision amended in accordance herewith such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change becomes effective until shall have become effective, (B) unless any such notice shall have delivered pursuant to clause (A) above has been withdrawn or such provision amended in accordance herewith; providedwithdrawn, furtherHoldings, that if such an amendment is requested by the Borrower or the Required Lenders, then the Borrower and the Administrative Agent requisite Lenders under Section 13.12 shall negotiate in good faith to enter into an amendment amend the provisions of the relevant affected provisions (without the payment of any amendment or similar fee this Agreement that relate to the Lenders) to preserve operation of such provision with the original intent thereof in light of having the respective positions of Holdings and the Lenders after such change in GAAP or the application thereof conform as nearly to their respective positions as of the Effective Date (which amendment shall not be subject to any amendment fee payable to the Lenders or any pricing change to the extent such amendment is solely related to eliminating the effect of such change in GAAP or in the application thereof), (C) GAAP as applied herein with respect to accounting for leases (including Capitalized Lease Obligations) shall be GAAP as in effect on the Effective Date and (D) Holdings shall include with the financial statements and other financial information and calculations required to be delivered to the Administrative Agent and Lenders hereunder a reconciliation of such financial statements, information and calculations before and after giving effect to such change in GAAP, (ii) except as otherwise expressly provided herein, for purposes of calculating financial terms, all covenants and related definitions, all such calculations shall be based on the operations, assets and results of the Borrower and its Restricted Subsidiaries on a consolidated basis and shall be made without giving effect to the operations, assets or results of any Unrestricted Subsidiaries, (iii) notwithstanding anything to the contrary contained herein, all such financial statements shall be prepared, and all financial covenants and financial ratios contained herein or in any other Credit Document shall be calculated, in each case, without giving effect to any election under FASB ASC 825 (or any similar accounting principle) principle permitting a Person to value its financial liabilities at the fair value thereof, (iviii) all financial statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of any accounting change extent expressly provided herein, certain calculations shall contain be made on a schedule showing the adjustments, in any, necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting changesPro Forma Basis, and (viv) all references in this Agreement to a four-Fiscal Quarter period of the Borrower referring to a period prior notwithstanding anything to the Closing Date contrary contained herein, for purposes of calculating all financial ratios and financial terms set forth herein and in the other Credit Documents, the financial results of Unrestricted Subsidiaries shall refer to the applicable period prior to the Closing Date as if the Borrower had existed and the Transaction has occurred on the first day of said periodbe ignored.
Appears in 1 contract
Samples: Intercreditor Agreement (Southeastern Grocers, LLC)
Calculations; Computations. (a) The financial statements to be furnished to the Lenders pursuant hereto shall be made and prepared in accordance with GAAP consistently applied throughout the periods involved (except as set forth in the notes thereto); provided that, (i) except as otherwise specifically provided herein, all computations and all definitions (including accounting terms) used in determining compliance with Sections 2.14, 8.13 and 9 and calculations of the First Lien Net Leverage Ratio, Secured Net Leverage Ratio, Total Net Leverage Ratio and Interest Coverage Ratio, shall utilize GAAP and policies in conformity with those used effect from time to prepare the Pro Forma Financial Statements (subject to purchase accounting and other adjustments reasonably satisfactory to the Administrative Agent as a result of the Acquisition)time; provided that if the Borrower Company notifies the Administrative Agent that the Borrower it requests an amendment to any provision hereof to eliminate the effect of any change occurring in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrower Company that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change becomes shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith; provided. The Company shall 113 CHAR1\0000000x0 have the right, furtherif required by relevant regulatory authorities, that if such an amendment is requested to adopt the International Financial Reporting Standards, as promulgated by the Borrower International Accounting Standards Board (or any successor board or agency), as in effect on the Required Lenders, then the Borrower and the Administrative Agent shall negotiate in good faith to enter into an amendment date of the relevant affected provisions (without the payment of any amendment or similar fee to the Lenders) to preserve the original intent thereof in light of such change in GAAP or the application thereofelection, (ii) except as otherwise expressly provided hereinwhich election shall, for purposes of calculating financial termsthis Agreement, all covenants and related definitions, all such calculations shall be based on the operations, assets and results of the Borrower and its Restricted Subsidiaries on treated as a consolidated basis permitted change in GAAP and shall be made without giving effect subject to the operations, assets or results terms of the immediately preceding sentence. Notwithstanding any Unrestricted Subsidiaries, (iii) notwithstanding anything to the contrary other provision contained herein, all covenants and terms of an accounting or financial ratios contained nature used herein or in any other Credit Document shall be calculatedconstrued, in each caseand all computations of amounts and ratios referred to herein shall be made, without giving effect to any election under FASB (i) Statement of Financial Accounting Standards 141R or ASC 825 805 (or any other financial accounting standard having a similar result or effect) and (ii) Financial Accounting Standards Board Accounting Standards Codification 825 and Financial Accounting Standards Board Accounting Standards Codification 470-20 on financial liabilities. Notwithstanding any other provision contained herein, any lease which was (or would have been) classified as an operating lease under the Company’s accounting principle) permitting a Person to value its financial liabilities at the fair value thereof, (iv) all financial statements delivered to the Administrative Agent treatment thereof in accordance with the terms of this Agreement after the date of any accounting change shall contain a schedule showing the adjustments, in any, necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting changeson the date of the Existing Credit Agreement shall not constitute a capital lease under this Agreement, and the obligations or liabilities thereunder shall not constitute capitalized lease obligations under this Agreement, notwithstanding any changes in GAAP (vor the required implementation of any previously promulgated changes in GAAP) all references in this Agreement subsequent to a four-Fiscal Quarter period the date of the Borrower referring to a period prior Existing Credit Agreement (whether before or after the Closing Date) relating to the Closing Date shall refer to the applicable period prior to the Closing Date treatment of a lease as if the Borrower had existed and the Transaction has occurred on the first day of said periodan operating lease or capitalized lease.
Appears in 1 contract
Calculations; Computations. (a) The financial statements to be furnished to the Lenders pursuant hereto shall be made and prepared in accordance with GAAP generally accepted accounting principles in the United States consistently applied throughout the periods involved (except as set forth in the notes theretothereto or as otherwise disclosed in writing by the Borrower to the Lenders and except that quarterly financial statements may not include notes and are subject to year-end adjustments); provided that, (i) except as otherwise specifically provided herein, all computations and all definitions (including accounting terms) used in determining compliance with Sections 2.149.08 through 9.10, 8.13 inclusive, and 9 and calculations of the First Lien Net Leverage Ratio, Secured Net Leverage Ratio, Total Net Leverage Ratio and Interest Coverage Ratio, Applicable Margin shall utilize GAAP accounting principles and policies in conformity with those used to prepare the Pro Forma Financial Statements historical financial statements delivered to the Lenders pursuant to Section 7.05(a) (with the foregoing generally accepted accounting principles, subject to purchase the preceding proviso, herein called “GAAP”). In the event of any changes (“Accounting Changes”) in accounting and other adjustments reasonably satisfactory to principles required by the Administrative Agent as a result promulgation of any rule, regulation, pronouncement or opinion of the Acquisition); provided that Financial Accounting Standards Board of the American Institute of Certified Public Accountants or, if applicable, the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any SEC, if such Accounting Changes result in a change occurring in GAAP or in the application thereof on the operation method of such provision (calculation of financial covenants, standards or if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless terms of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change becomes effective until such notice shall have been withdrawn or such provision amended in accordance herewith; provided, further, that if such an amendment is requested by the Borrower or the Required Lendersthis Agreement, then the Borrower and the Administrative Agent shall negotiate in good faith agree to enter into negotiations in order to amend such provisions of this Agreement so as to equitably reflect such Accounting Changes with the desired result that the criteria for evaluating the Borrower’s financial condition shall be the same after such Accounting Changes as if such Accounting Changes had not been made. Until such time as such an amendment of shall have been executed and delivered by the relevant affected provisions (without the payment of any amendment or similar fee to the Lenders) to preserve the original intent thereof in light of such change in GAAP or the application thereofBorrower, (ii) except as otherwise expressly provided herein, for purposes of calculating financial terms, all covenants and related definitions, all such calculations shall be based on the operations, assets and results of the Borrower and its Restricted Subsidiaries on a consolidated basis and shall be made without giving effect to the operations, assets or results of any Unrestricted Subsidiaries, (iii) notwithstanding anything to the contrary contained herein, all covenants and financial ratios contained herein or in any other Credit Document shall be calculated, in each case, without giving effect to any election under FASB ASC 825 (or any similar accounting principle) permitting a Person to value its financial liabilities at the fair value thereof, (iv) all financial statements delivered to the Administrative Agent in accordance with and the Required Lenders, all financial covenants, standards and terms of this Agreement after the date of any accounting change shall contain a schedule showing the adjustments, in any, necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting changes, and (v) all references in this Agreement shall continue to a four-Fiscal Quarter period of the Borrower referring to a period prior to the Closing Date shall refer to the applicable period prior to the Closing Date be calculated as if the Borrower such Accounting Changes had existed and the Transaction has occurred on the first day of said periodnot occurred.
Appears in 1 contract
Calculations; Computations. (a) The financial statements to be furnished to the Lenders pursuant hereto shall be made and prepared in accordance with GAAP generally accepted accounting principles in the United States consistently applied throughout the periods involved (except as set forth in the notes theretothereto or as otherwise disclosed in writing by the Borrower to the Lenders and except that monthly and quarterly financial statements may not include notes and are subject to year-end adjustments); provided that, (i) except as otherwise specifically provided herein, all computations of Excess Cash Flow and all definitions (including accounting terms) used in computations determining compliance with Sections 2.149.07 through 9.12, 8.13 inclusive, and 9 and calculations of the First Lien Net Leverage Ratio, Secured Net Leverage Ratio, Total Net Leverage Ratio and Interest Coverage Ratio, Applicable Margin shall utilize GAAP accounting principles and policies in conformity with those used to prepare the Pro Forma Financial Statements historical financial statements delivered to the Lenders pursuant to Section 7.05(a) (with the foregoing generally accepted accounting principles, subject to purchase the preceding proviso, herein called "GAAP"). In the event of any changes ("Accounting Changes") in accounting and other adjustments reasonably satisfactory to principles required by the Administrative Agent as a result promulgation of any rule, regulation, pronouncement or opinion of the Acquisition); provided that Financial Accounting Standards Board of the American Institute of Certified Public Accountants or, if applicable, the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any SEC, if such Accounting Changes result in a change occurring in GAAP or in the application thereof on the operation method of such provision (calculation of financial covenants, standards or if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless terms of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change becomes effective until such notice shall have been withdrawn or such provision amended in accordance herewith; provided, further, that if such an amendment is requested by the Borrower or the Required Lendersthis Agreement, then the Borrower and the Administrative Agent shall negotiate in good faith agree to enter into negotiations in order to amend such provisions of this Agreement so as to equitably reflect such Accounting Changes with the desired result that the criteria for evaluating the Borrower's financial condition shall be the same after such Accounting Changes as if such Accounting Changes had not been made. Until such time as such an amendment of shall have been executed and delivered by the relevant affected provisions (without the payment of any amendment or similar fee to the Lenders) to preserve the original intent thereof in light of such change in GAAP or the application thereofBorrower, (ii) except as otherwise expressly provided herein, for purposes of calculating financial terms, all covenants and related definitions, all such calculations shall be based on the operations, assets and results of the Borrower and its Restricted Subsidiaries on a consolidated basis and shall be made without giving effect to the operations, assets or results of any Unrestricted Subsidiaries, (iii) notwithstanding anything to the contrary contained herein, all covenants and financial ratios contained herein or in any other Credit Document shall be calculated, in each case, without giving effect to any election under FASB ASC 825 (or any similar accounting principle) permitting a Person to value its financial liabilities at the fair value thereof, (iv) all financial statements delivered to the Administrative Agent in accordance with and the Required Lenders, all financial covenants standards and terms of this Agreement after the date of any accounting change shall contain a schedule showing the adjustments, in any, necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting changes, and (v) all references in this Agreement shall continue to a four-Fiscal Quarter period of the Borrower referring to a period prior to the Closing Date shall refer to the applicable period prior to the Closing Date be calculated as if the Borrower such Accounting Changes had existed and the Transaction has occurred on the first day of said periodnot occurred.
Appears in 1 contract
Calculations; Computations. (a) The financial statements to be furnished to the Lenders pursuant hereto shall be made and prepared in accordance with GAAP consistently applied throughout the periods involved (except as set forth in the notes thereto); provided provided, that, (i) except as otherwise specifically provided herein, all computations and all definitions (including accounting terms) used in determining compliance with Sections 2.14, 8.13 and Section 9 and calculations of the First Lien Net Leverage Ratio, Secured Net Leverage Ratio, Total Net Leverage Ratio and Interest Coverage Ratio, shall utilize GAAP and policies in conformity with those used to prepare the Pro Forma Financial Statements (subject to purchase accounting and other adjustments reasonably satisfactory to the Administrative Agent as a result of the Acquisition)GAAP; provided 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 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 becomes effective until such notice shall have been withdrawn or such provision amended in accordance herewith; provided, further, that if such an amendment is requested by the Borrower or the Required Lenders, then the Borrower and the Administrative Agent Required Lenders shall negotiate in good faith to enter into an amendment of the relevant affected provisions (without the payment of any amendment or similar fee to the Lenders) to preserve the original intent thereof in light of such change in GAAP or the application thereof, (ii) except as otherwise expressly provided herein, for purposes of calculating financial terms, all covenants and related definitions, all such calculations shall be based on the operations, assets and results of the Borrower and its Restricted Subsidiaries on a consolidated basis and shall be made without giving effect to the operations, assets or results of any Unrestricted Subsidiariesbasis, (iii) notwithstanding anything to the contrary contained herein, all covenants and financial ratios contained herein or in any other Credit Document shall be calculated, in each case, without giving effect to any election under FASB ASC 825 (or any similar accounting principle) permitting a Person to value its financial liabilities at the fair value thereof, (iv) all financial statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of any accounting change shall contain a schedule showing the adjustments, in if any, necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting changes, and (v) all references in this Agreement to a four-Fiscal Quarter period of the Borrower referring to a period prior to the Closing Date shall refer to the applicable period prior to the Closing Date as if the Borrower had existed and the Transaction has occurred on the first day of said period.
Appears in 1 contract
Samples: Loan Credit Agreement (J.Jill, Inc.)
Calculations; Computations. (a) The financial statements to be furnished to the Lenders pursuant hereto shall be made and prepared in accordance with GAAP consistently applied throughout the periods involved (and, except as set forth in the notes thereto)thereto or as otherwise disclosed in writing by the US Borrower to the Lenders, be consistently applied throughout the periods involved; provided PROVIDED that, (i) except as otherwise specifically provided herein, all computations 156 determining the Adjusted Total Leverage Ratio, the Total Leverage Ratio and all definitions (including accounting terms) used in determining the Adjusted Senior Leverage Ratio and compliance with Sections 2.142.12, 8.13 6.14 and 9 Article VII, including definitions used therein shall, in each case, utilize accounting principles and calculations policies in effect at the time of the First Lien Net Leverage Ratiopreparation of, Secured Net Leverage Ratio, Total Net Leverage Ratio and Interest Coverage Ratio, shall utilize GAAP and policies in conformity with those used to prepare prepare, the December 31, 2000 financial statements delivered to the Lenders pursuant to Section 5.10(b); PROVIDED FURTHER that (i) to the extent expressly required pursuant to the provisions of this Agreement, certain calculations shall be made on a Pro Forma Financial Statements (subject to purchase accounting and other adjustments reasonably satisfactory to the Administrative Agent as a result of the Acquisition); provided that if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change becomes effective until such notice shall have been withdrawn or such provision amended in accordance herewith; provided, further, that if such an amendment is requested by the Borrower or the Required Lenders, then the Borrower and the Administrative Agent shall negotiate in good faith to enter into an amendment of the relevant affected provisions (without the payment of any amendment or similar fee to the Lenders) to preserve the original intent thereof in light of such change in GAAP or the application thereofBasis, (ii) except to the extent compliance with Section 7.09 or 7.10 or the determination of any of the Adjusted Total Leverage Ratio, the Total Leverage Ratio and the Adjusted Senior Leverage Ratio would include periods occurring prior to the Initial Borrowing Date, such calculation shall be adjusted on a Pro Forma Basis to give effect to the Transaction as otherwise expressly provided hereinif same had occurred on the first day of the respective period, (iii) in the case of any determinations of Consolidated Interest Expense or Consolidated EBITDA for any portion of any Test Period that ends prior to the Initial Borrowing Date, all computations determining compliance with Section 7.09 or 7.10 and all determinations of the Adjusted Total Leverage Ratio, the Adjusted Senior Leverage Ratio and the Total Leverage Ratio (including as used in the definition of Applicable Rate) shall be calculated in accordance with the definition of Test Period contained herein and (iv) for purposes of calculating the Applicable Rate, financial ratios, financial terms, all covenants and related definitions, all such calculations shall be based on the operations, assets and results operations of the US Borrower and its Restricted Subsidiaries on a consolidated basis and shall be made without giving effect to the operations, assets or results operations of any Unrestricted Subsidiaries, (iii) notwithstanding anything to the contrary contained herein, all covenants and financial ratios contained herein or in any other Credit Document shall be calculated, in each case, without giving effect to any election under FASB ASC 825 (or any similar accounting principle) permitting a Person to value its financial liabilities at the fair value thereof, (iv) all financial statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of any accounting change shall contain a schedule showing the adjustments, in any, necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting changes, and (v) all references in this Agreement to a four-Fiscal Quarter period of the Borrower referring to a period prior to the Closing Date shall refer to the applicable period prior to the Closing Date as if the Borrower had existed and the Transaction has occurred on the first day of said period.
Appears in 1 contract
Calculations; Computations. (a) The financial statements to be furnished to the Lenders pursuant hereto shall be made and prepared in accordance with GAAP consistently applied throughout the periods involved (except as set forth in the notes theretothereto or as otherwise disclosed in writing by the Company to the Lenders); provided that, (i) except as otherwise specifically provided herein, all computations and all definitions (including accounting terms) used in determining the Fixed Charge Coverage Ratio and the Total Leverage Ratio in determining compliance with Sections 2.14, 8.13 and 9 and calculations of the First Lien Net Leverage Ratio, Secured Net Leverage Ratio, Total Net Leverage Ratio and Interest Coverage Ratio, Section 10 shall (x) utilize GAAP and policies in conformity with those used to prepare the Pro Forma Financial Statements (subject to purchase accounting and other adjustments reasonably satisfactory to the Administrative Agent as a result audited financial statements of the Acquisition); provided Company referred to in Section 8.05(a) for its fiscal year ended, and otherwise in effect as of, December 31, 2014 and (y) be made in a manner such that if any obligations relating to a lease that was accounted for by such Person as an operating lease as of the Borrower notifies Effective Date and any similar lease entered into after the Administrative Agent that Effective Date by the Borrower requests an amendment to Company or any provision hereof to eliminate the effect of any change occurring in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the 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 Subsidiary shall be interpreted on the basis of GAAP accounted for as in effect obligations relating to an operating lease and applied immediately before such change becomes effective until such notice shall have been withdrawn or such provision amended in accordance herewith; provided, further, that if such an amendment is requested by the Borrower or the Required Lenders, then the Borrower and the Administrative Agent shall negotiate in good faith to enter into an amendment of the relevant affected provisions (without the payment of any amendment or similar fee to the Lenders) to preserve the original intent thereof in light of such change in GAAP or the application thereofnot as Capital Lease Obligations, (ii) except as otherwise expressly provided herein, for purposes of calculating financial terms, all covenants and related definitions, all such calculations shall be based on the operations, assets and results of the Borrower and its Restricted Subsidiaries on a consolidated basis and shall be made without giving effect to the operations, assets or results of any Unrestricted Subsidiaries, (iii) notwithstanding anything to the contrary contained herein, all such financial statements shall be prepared, and all financial covenants and financial ratios contained herein or in any other Credit Document shall be calculated, in each case, without giving effect to (x) any election under FASB ASC 825 (or any similar accounting principle) principle permitting a Person to value its financial liabilities at the fair value thereof), or (y) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof, (iii) to the extent expressly provided herein, certain calculations shall be made on a Pro Forma Basis and (iv) all financial statements delivered for purposes of determining compliance with any incurrence or expenditure tests set forth herein, amounts so incurred or expended (to the extent 152 incurred or expended in a currency other than U.S. Dollars) shall be converted into U.S. Dollars on the basis of the exchange rates (as shown for the prior day as published on Bloomberg or, if same does not provide such exchange rates, on such other basis as is reasonably satisfactory to the Administrative Agent Agent) as in accordance with effect on the date of such incurrence or expenditure under any provision of any such Section that has an aggregate U.S. Dollar limitation provided for therein (and to the extent the respective incurrence or expenditure test regulates the aggregate amount outstanding at any time and it is expressed in terms of this Agreement after U.S. Dollars, all outstanding amounts originally incurred or spent in currencies other than U.S. Dollars shall be converted into U.S. Dollars on the basis of the exchange rates (as shown for the prior day as published on Bloomberg or, if same does not provide such exchange rates, on such other basis as is reasonably satisfactory to the Administrative Agent) as in effect on the date of any accounting change shall contain a schedule showing new incurrence or expenditures made under any provision of any such Section that regulates the adjustments, in any, necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting changes, and (v) all references in this Agreement to a four-Fiscal Quarter period of the Borrower referring to a period prior to the Closing Date shall refer to the applicable period prior to the Closing Date as if the Borrower had existed and the Transaction has occurred on the first day of said periodU.S. Dollar amount outstanding at any time).
Appears in 1 contract
Calculations; Computations. (a) The financial statements to be furnished to the Lenders pursuant hereto shall be made and prepared in accordance with GAAP consistently applied throughout the periods involved (except as set forth in the notes thereto); provided provided, that, (i) except as otherwise specifically provided herein, all computations and all definitions (including accounting terms) used in determining compliance with Sections 2.14, 8.13 2.14 and 9 and calculations of the First Lien Net Leverage Ratio, Secured Net Leverage Ratio, Total Net Leverage Ratio and Interest Coverage Ratio, shall utilize GAAP and policies in conformity with those used to prepare the Pro Forma Financial Statements (subject to purchase accounting and other adjustments reasonably satisfactory to the Administrative Agent as a result of the Acquisition)GAAP; provided 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 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 becomes effective until such notice shall have been withdrawn or such provision amended in accordance herewith; provided, further, that if such an amendment is requested by the Borrower or the Required Lenders, then the Borrower and the Administrative Agent Required Lenders shall negotiate in good faith to enter into an amendment of the relevant affected provisions (without the payment of any amendment or similar fee to the Lenders) to preserve the original intent thereof in light of such change in GAAP or the application thereof, (ii) except as otherwise expressly provided herein, for purposes of calculating financial terms, all covenants and related definitions, all such calculations shall be based on the operations, assets and results of the Borrower and its Restricted Subsidiaries on a consolidated basis and shall be made without giving effect to the operations, assets or results of any Unrestricted Subsidiariesbasis, (iii) notwithstanding anything to the contrary contained herein, all covenants and financial ratios contained herein or in any other Credit Document shall be calculated, in each case, without giving effect to any election under FASB ASC 825 (or any similar accounting principle) permitting a Person to value its financial liabilities at the fair value thereof, (iv) all financial statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of any accounting change shall contain a schedule showing the adjustments, in if any, necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting changes, and (v) all references in this Agreement to a four-Fiscal Quarter period of the Borrower referring to a period prior to the Closing Date shall refer to the applicable period prior to the Closing Date as if the Borrower had existed and the Transaction has occurred on the first day of said period.
Appears in 1 contract
Samples: Loan Credit Agreement (J.Jill, Inc.)
Calculations; Computations. (a) The financial statements to be furnished to the Lenders pursuant hereto shall be made and prepared in accordance with GAAP consistently applied throughout the periods involved (except as set forth in the notes theretothereto or as otherwise disclosed in writing by the Company to the Lenders); provided that, (i) except as otherwise specifically provided herein, all computations and all definitions (including accounting terms) used in determining the Fixed Charge Coverage Ratio and the Total Leverage Ratio in determining compliance with Sections 2.14, 8.13 and 9 and calculations of the First Lien Net Leverage Ratio, Secured Net Leverage Ratio, Total Net Leverage Ratio and Interest Coverage Ratio, Section 10 shall (x) utilize GAAP and policies in conformity with those used to prepare the Pro Forma Financial Statements (subject to purchase accounting and other adjustments reasonably satisfactory to the Administrative Agent as a result audited financial statements of the Acquisition); provided Company referred to in Section 8.05(a) for its fiscal year ended, and otherwise in effect as of, December 31, 2014 and (y) be made in a manner such that if any obligations relating to a lease that was accounted for by such Person as an operating lease as of the Borrower notifies Effective Date and any similar lease entered into after the Administrative Agent that Effective Date by the Borrower requests an amendment to Company or any provision hereof to eliminate the effect of any change occurring in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the 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 Subsidiary shall be interpreted on the basis of GAAP accounted for as in effect obligations relating to an operating lease and applied immediately before such change becomes effective until such notice shall have been withdrawn or such provision amended in accordance herewith; provided, further, that if such an amendment is requested by the Borrower or the Required Lenders, then the Borrower and the Administrative Agent shall negotiate in good faith to enter into an amendment of the relevant affected provisions (without the payment of any amendment or similar fee to the Lenders) to preserve the original intent thereof in light of such change in GAAP or the application thereofnot as Capital Lease Obligations, (ii) except as otherwise expressly provided herein, for purposes of calculating financial terms, all covenants and related definitions, all such calculations shall be based on the operations, assets and results of the Borrower and its Restricted Subsidiaries on a consolidated basis and shall be made without giving effect to the operations, assets or results of any Unrestricted Subsidiaries, (iii) notwithstanding anything to the contrary contained herein, all such financial statements shall be prepared, and all financial covenants and financial ratios contained herein or in any other Credit Document shall be calculated, in each case, without giving effect to (x) any election under FASB ASC 825 (or any similar accounting principle) principle permitting a Person to value its financial liabilities at the fair value thereof), or (y) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof, (iii) to the extent expressly provided herein, certain calculations shall be made on a Pro Forma Basis and (iv) all financial statements delivered for purposes of determining compliance with any incurrence or expenditure tests set forth herein, amounts so incurred or expended (to the extent incurred or expended in a currency other than U.S. Dollars) shall be converted into U.S. Dollars on the basis of the exchange rates (as shown for the prior day as published on Bloomberg or, if same does not provide such exchange rates, on such other basis as is reasonably satisfactory to the Administrative Agent Agent) as in accordance with effect on the date of such incurrence or expenditure under any provision of any such Section that has an aggregate U.S. Dollar limitation provided for therein (and to the extent the respective incurrence or expenditure test regulates the aggregate amount outstanding at any time and it is expressed in terms of this Agreement after U.S. Dollars, all outstanding amounts originally incurred or spent in currencies other than U.S. Dollars shall be converted into U.S. Dollars on the basis of the exchange rates (as shown for the prior day as published on Bloomberg or, if same does not provide such exchange rates, on such other basis as is reasonably satisfactory to the Administrative Agent) as in effect on the date of any accounting change shall contain a schedule showing new incurrence or expenditures made under any provision of any such Section that regulates the adjustments, in any, necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting changes, and (v) all references in this Agreement to a four-Fiscal Quarter period of the Borrower referring to a period prior to the Closing Date shall refer to the applicable period prior to the Closing Date as if the Borrower had existed and the Transaction has occurred on the first day of said periodU.S. Dollar amount outstanding at any time).
Appears in 1 contract
Calculations; Computations. (a) The financial statements to be furnished to the Administrative Agent and the Lenders pursuant hereto shall be made and prepared in accordance with GAAP consistently applied throughout as in effect from time to time during the periods involved (except as set forth in the notes thereto); provided that, (i) except thereto or as otherwise specifically provided herein, all computations and all definitions (including accounting terms) used disclosed in determining compliance with Sections 2.14, 8.13 and 9 and calculations of writing by Holdings or the First Lien Net Leverage Ratio, Secured Net Leverage Ratio, Total Net Leverage Ratio and Interest Coverage Ratio, shall utilize GAAP and policies in conformity with those used to prepare the Pro Forma Financial Statements (subject to purchase accounting and other adjustments reasonably satisfactory Borrower to the Administrative Agent Agent). Any changes in GAAP after the Closing Date, as applied in the preparation of such financial statements, or changes in the presentation of such financial statements that are mandated or otherwise required by a result of Governmental Authority, will be incorporated in such calculations, computations and presentation unless Holdings, by written notice to the Acquisition); provided that if the Borrower notifies Administrative Agent, or the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change becomes effective until such notice shall have been withdrawn or such provision amended in accordance herewith; provided, further, that if such an amendment is requested by the Borrower or the Required Lenders, then the Borrower and the Administrative Agent shall negotiate in good faith by written notice to enter into an amendment of the relevant affected provisions (without the payment of any amendment or similar fee Holdings, objects to the Lenders) inclusion of such changes in GAAP or presentation, whereupon such changes in GAAP or presentation shall be excluded from calculations and computations hereunder until such time as the parties hereto have amended this Agreement to preserve reflect appropriately the original intent thereof in light effect of such change in GAAP or presentation, and, in any event, Holdings shall provide to the application thereofAdministrative 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 GAAP or presentation. In furtherance of the foregoing, (ii) except Holdings, CAM, the Borrower, the Administrative Agent and the Lenders agree that to the extent there is an amendment to this Agreement to reflect appropriately the effect of any change in GAAP or presentation as otherwise expressly provided herein, for purposes of calculating financial terms, all covenants and related definitions, all in the foregoing sentence the entrance into such calculations amendment shall be at no cost to the Credit Parties other than the reimbursement of the Administrative Agent’s costs and expenses as contemplated by Section 12.1. Interest hereunder based on the operations, assets Administrative Agent’s prime lending rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year) and results paid for the actual number of days elapsed (including the Borrower first day but excluding the last day). All other interest and its Restricted Subsidiaries all fees hereunder shall be computed on the basis of a consolidated basis year of 360 days and paid for the actual number of days elapsed (including the first day but excluding the last day). Each determination by the Administrative Agent of an interest rate or fee hereunder shall be made without giving effect in good faith and, except for manifest error, shall be final, conclusive and binding for all purposes. Any change in the interest rate on a Loan resulting from a change in the Base Rate or any reserve requirement with respect to eurocurrency funding shall become effective as of the operationsopening of business on the day on which such change in the Base Rate is announced or such change in the reserve requirement with respect to eurocurrency funding becomes effective, assets or results of as the case may be. Notwithstanding any Unrestricted Subsidiaries, (iii) notwithstanding anything to the contrary other provision contained herein, (a) all covenants and terms of an accounting or financial ratios contained nature used herein or in any other Credit Document shall be calculatedconstrued, in each caseand all computations of amounts and ratios referred to herein shall be made, without giving effect to any election under FASB ASC 825 Accounting Standards Codification Section 825-10 (or any other Financial Accounting Standard having a similar accounting principleresult or effect including ASU 2015-03, 1 and any other related treatment for debt discounts and premiums, such as original issue discount) permitting a Person to value its financial any Indebtedness or other liabilities of any Credit Party or any Subsidiary of any Credit Party at the “fair value thereofvalue”, as defined therein and (ivb) for all financial statements delivered to the Administrative Agent in accordance with the terms purposes of this Agreement after and the date of any accounting change shall contain other Credit Documents, including negative covenants, financial covenants and component definitions, GAAP will be deemed to treat operating leases and Capital Leases in a schedule showing manner consistent with the adjustments, in any, necessary to reconcile such financial statements with treatment under GAAP as in effect immediately prior to such accounting changes, and (v) all references in this Agreement to a four-Fiscal Quarter period of the Borrower referring to a period prior to the Closing Date shall refer to issuance by the applicable period prior to the Closing Date as if the Borrower had existed and the Transaction has occurred Financial Accounting Standards Board on the first day February 25, 2016 of said periodAccounting Standards Update No. 2016-02.
Appears in 1 contract
Samples: Credit Agreement (Air Transport Services Group, Inc.)
Calculations; Computations. (a) The financial statements to be furnished to the Lenders pursuant hereto shall be made and prepared in accordance with GAAP accounting principles generally accepted in the United States consistently applied throughout the periods involved (except as set forth in the notes theretothereto or as otherwise disclosed in writing by Silgan to the Lenders); provided that, (i) except as otherwise specifically provided herein, (i) all computations and all definitions (including accounting terms) used in determining compliance with Sections 2.14Section 4.02, 8.13 Section 8 and 9 the definitions of Applicable Commitment Commission Percentage and calculations of the First Lien Net Leverage Ratio, Secured Net Leverage Ratio, Total Net Leverage Ratio and Interest Coverage Ratio, Applicable Margin shall utilize GAAP accounting principles and policies in conformity with those used to prepare the Pro Forma Financial Statements (subject audited historical financial statements referred to purchase accounting and other adjustments reasonably satisfactory to the Administrative Agent as a result of the Acquisitionin Section 6.07(a); 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 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 becomes effective until such notice shall have been withdrawn or such provision amended in accordance herewith; provided, further, that if such an amendment is requested by the Borrower or the Required Lenders, then the Borrower and the Administrative Agent shall negotiate in good faith to enter into an amendment of the relevant affected provisions (without the payment of any amendment or similar fee to the Lenders) to preserve the original intent thereof in light of such change in GAAP or the application thereof, (ii) except as otherwise expressly provided hereinin determining Interest Expense for any period, for purposes of calculating financial terms, all covenants and related definitions, all such calculations no effect shall be based on the operations, assets and results of the Borrower and its Restricted Subsidiaries on a consolidated basis and shall be made without giving effect given (but only to the operations, assets extent not already otherwise excluded for the calculation of Interest Expense under this Agreement) to non-cash amounts recorded (or results of any Unrestricted Subsidiariesrequired to be recorded) in accord with FAS 133, (iii) all computations determining compliance with Sections 8.07 and 8.08 and the definitions of Applicable Commitment Commission Percentage and Applicable Margin shall be determined on a Pro Forma Basis, and (iv) notwithstanding anything to the contrary contained herein, all such financial statements shall be prepared, and all financial covenants and financial ratios contained herein or in any other Credit Document shall be calculated, in each case, without giving effect to any election under FASB ASC 825 FAS 159 (or any similar accounting principle) permitting a Person to value its financial liabilities at the fair value thereof; provided further that (i) in determining EBITDA for any period, no effect shall be given (but only to the extent not already otherwise excluded from the calculation of EBITDA under this Agreement) (I) to FAS 106, (ivII) all financial statements delivered to the Administrative Agent non-cash amounts recorded (or required to be recorded) in accordance with FAS 133 or (III) to FAS 141R to the terms extent relating to third party expenses incurred in connection with business combinations as part of this Agreement after the date of any accounting change shall contain a schedule showing the adjustments, in any, necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting changesPermitted Acquisition, and (vii) for purposes of calculating the Applicable Commitment Commission Percentage, the Applicable Margin and all references in this Agreement to a four-Fiscal Quarter period financial ratios and financial terms, the financial results of the Borrower referring to a period prior to the Closing Date Unrestricted Subsidiaries shall refer to the applicable period prior to the Closing Date as if the Borrower had existed and the Transaction has occurred on the first day of said periodbe ignored.
Appears in 1 contract
Calculations; Computations. (a) The financial statements to be furnished to the Lenders pursuant hereto shall be made and prepared in accordance with GAAP consistently applied throughout the periods involved (except as set forth in the notes theretothereto or as otherwise disclosed in writing by the Company to the Lenders); provided that, (i) except as otherwise specifically provided herein, all computations and all definitions (including accounting terms) used in determining the Fixed Charge Coverage Ratio and the Total Leverage Ratio in determining compliance with Sections 2.14, 8.13 and 9 and calculations of the First Lien Net Leverage Ratio, Secured Net Leverage Ratio, Total Net Leverage Ratio and Interest Coverage Ratio, Section 10 shall (x) utilize GAAP and policies in conformity with those used to prepare the Pro Forma Financial Statements (subject to purchase accounting and other adjustments reasonably satisfactory to the Administrative Agent as a result audited financial statements of the Acquisition); provided Company referred to in Section 8.05(a) for its fiscal year ended, and otherwise in effect as of, December 31, 2014 and (y) be made in a manner such that if any obligations relating to a lease that was accounted for by such Person as an operating lease as of the Borrower notifies Effective Date and any similar lease entered into after the Administrative Agent that Effective Date by the Borrower requests an amendment to Company or any provision hereof to eliminate the effect of any change occurring in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the 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 Subsidiary shall be interpreted on the basis of GAAP accounted for as in effect obligations relating to an operating lease and applied immediately before such change becomes effective until such notice shall have been withdrawn or such provision amended in accordance herewith; provided, further, that if such an amendment is requested by the Borrower or the Required Lenders, then the Borrower and the Administrative Agent shall negotiate in good faith to enter into an amendment of the relevant affected provisions (without the payment of any amendment or similar fee to the Lenders) to preserve the original intent thereof in light of such change in GAAP or the application thereofnot as Capital Lease Obligations, (ii) except as otherwise expressly provided herein, for purposes of calculating financial terms, all covenants and related definitions, all such calculations shall be based on the operations, assets and results of the Borrower and its Restricted Subsidiaries on a consolidated basis and shall be made without giving effect to the operations, assets or results of any Unrestricted Subsidiaries, (iii) notwithstanding anything to the contrary contained herein, all such financial statements shall be prepared, and all financial covenants and financial ratios contained herein or in any other Credit Document shall be calculated, in each case, without giving effect to (x) any election under FASB ASC 825 (or any similar accounting principle) principle permitting a Person to value its financial liabilities at the fair value thereof), or (y) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof, (iii) to the extent expressly provided herein, certain calculations shall be made on a Pro Forma Basis and (iv) all financial statements delivered for purposes of determining compliance with any incurrence or expenditure tests set forth herein, amounts so incurred or expended (to the extent 188 incurred or expended in a currency other than U.S. Dollars) shall be converted into U.S. Dollars on the basis of the exchange rates (as shown for the prior day as published on Bloomberg or, if same does not provide such exchange rates, on such other basis as is reasonably satisfactory to the Administrative Agent Agent) as in accordance with effect on the date of such incurrence or expenditure under any provision of any such Section that has an aggregate U.S. Dollar limitation provided for therein (and to the extent the respective incurrence or expenditure test regulates the aggregate amount outstanding at any time and it is expressed in terms of this Agreement after U.S. Dollars, all outstanding amounts originally incurred or spent in currencies other than U.S. Dollars shall be converted into U.S. Dollars on the basis of the exchange rates (as shown for the prior day as published on Bloomberg or, if same does not provide such exchange rates, on such other basis as is reasonably satisfactory to the Administrative Agent) as in effect on the date of any accounting change shall contain a schedule showing new incurrence or expenditures made under any provision of any such Section that regulates the adjustments, in any, necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting changes, and (v) all references in this Agreement to a four-Fiscal Quarter period of the Borrower referring to a period prior to the Closing Date shall refer to the applicable period prior to the Closing Date as if the Borrower had existed and the Transaction has occurred on the first day of said periodU.S. Dollar amount outstanding at any time).
Appears in 1 contract
Samples: Abl Credit Agreement (Tesla, Inc.)
Calculations; Computations. (a) The financial statements to be furnished to the Lenders pursuant hereto shall be made and prepared in accordance with GAAP consistently applied throughout the periods involved (subject, in the case of quarterly financial statements, to year end adjustments and the absence of footnotes and except as set forth in the notes thereto, if any, or as otherwise disclosed in writing by the Borrower to the Lenders); , provided that, that (ix) except as otherwise specifically provided herein, all computations of Excess Cash Flow and all definitions (including accounting terms) used in computations determining compliance with Sections 2.14the Financial Covenants, 8.13 and 9 and calculations of the First Lien Net Leverage Ratio, Secured Net Leverage Ratio, Total Net Leverage Ratio and Interest Coverage Ratioincluding definitions used therein, shall utilize GAAP accounting principles and policies in effect at the time of the preparation of, and in conformity with those used to prepare prepare, the Pro Forma Financial Statements historical financial statements of Holdings and its Subsidiaries referred to in the first sentence of Section 6.10(b) and (subject to purchase accounting and other adjustments reasonably satisfactory to the Administrative Agent y) if, as a result of any change after the Acquisition); provided that if Restatement Effective Date in GAAP, any change in such accounting principles and policies used in the Borrower notifies preparation of such financial statements occurs, then, following the request of the Borrower, or the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change becomes effective until such notice shall have been withdrawn or such provision amended in accordance herewith; provided, further, that if such an amendment is requested by the Borrower or the Required Lenders, then the Borrower and the Administrative Agent parties hereto shall negotiate in good faith to enter into an amendment of the relevant affected provisions (without the payment of any amendment or similar fee modifications to the Lenders) definitions, covenants and other provisions of this Agreement relating to preserve the original intent thereof financial covenant calculations required to be made under this Agreement in light order to reflect the impact and the projected impact of such change in GAAP or the application thereof, (ii) except as otherwise expressly provided herein, for purposes of calculating financial terms, all covenants and related definitions, all such calculations shall be based on the operations, assets consolidated financial position and results of the Borrower operations of Holdings and its Restricted Subsidiaries on a consolidated basis (and if an amendment to this Agreement is entered into as contemplated above in this clause (y), then from and after the date thereof the computations pursuant to preceding clause (x) of this proviso shall be made without giving in conformity with the accounting principles and policies referenced in preceding clause (x), but adjusted to give effect to the operations, assets changes to GAAP made after the Restatement Effective Date and on or results of any Unrestricted Subsidiaries, (iii) notwithstanding anything prior to the contrary contained herein, all covenants and financial ratios contained herein or in any other Credit Document shall be calculated, in each case, without giving effect to any election under FASB ASC 825 (or any similar accounting principle) permitting a Person to value its financial liabilities at the fair value thereof, (iv) all financial statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of the respective such amendment), provided further, that until such time as any accounting modifications have become effective as contemplated by clause (y) of the immediately preceding proviso, if there has been any change after the Restatement Effective Date (or the date of the last amendment effected pursuant to clause (y) of the immediately preceding proviso) in GAAP, then the financial statements furnished to the Lenders pursuant hereto shall contain a schedule be accompanied by reconciliation worksheets showing the adjustments, information required to determine compliance with the provisions referenced in any, necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting changes, and clause (vx) all references in this Agreement to a four-Fiscal Quarter period of the Borrower referring to a period prior to the Closing Date shall refer to the applicable period prior to the Closing Date as if the Borrower had existed and the Transaction has occurred on the first day of said periodimmediately preceding proviso.
Appears in 1 contract
Samples: Credit Agreement (RBS Global Inc)
Calculations; Computations. (a) The financial statements to be furnished to the Lenders pursuant hereto shall be made and prepared in accordance with GAAP consistently applied throughout the periods involved (except as set forth in the notes thereto); provided thatprovided, that (i) except as otherwise specifically provided herein, all computations and all definitions (including accounting terms) used in determining compliance with Sections 2.14, 8.13 9.16 and 9 10 and calculations of the Fixed Charge Coverage Ratio and the First Lien Net Leverage Ratio, Secured Net Leverage Ratio, Total Net Leverage Ratio and Interest Coverage Ratio, shall utilize GAAP and policies in conformity with those used to prepare the Pro Forma Financial Statements (subject to purchase accounting and other adjustments reasonably satisfactory to the Administrative Agent as a result of the Acquisition); provided provided, that if the Borrower notifies Borrowers notify the Administrative Agent that the Borrower requests Borrowers request an amendment to any provision hereof to eliminate the effect of any change occurring in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrower Borrowers that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change becomes effective until such notice shall have been withdrawn or such provision amended in accordance herewith; provided, further, that if such an amendment is requested by the Borrower Borrowers or the Required Lenders, then the Borrower Borrowers and the Administrative Agent shall negotiate in good faith to enter into an amendment of the relevant affected provisions (without the payment of any amendment or similar fee to the Lenders) to preserve the original intent thereof in light of such change in GAAP or the application thereof, (ii) except as otherwise expressly provided herein, for purposes of calculating financial terms, all covenants and related definitions, all such calculations shall be based on the operations, assets and results of the Borrower Company and its Restricted Subsidiaries on a consolidated basis and shall be made without giving effect to the operations, assets or results of any Unrestricted Subsidiaries, (iii) notwithstanding anything to the contrary contained herein, all covenants and financial ratios contained herein or in any other Credit Document shall be calculated, in each case, without giving effect to any election under FASB ASC 825 (or any similar accounting principle) permitting a Person to value its financial liabilities at the fair value thereof, (iv) all financial statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of any accounting change shall contain a schedule showing the adjustments, in any, necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting changes, and (v) all references in this Agreement to a four-Fiscal Quarter period of the Borrower Company referring to a period prior to the Closing Effective Date shall refer to the applicable period prior to the Closing Effective Date as if the Borrower Company had existed and the Transaction has occurred on the first day of said period.
Appears in 1 contract
Calculations; Computations. (a) The financial statements to be furnished to the Lenders pursuant hereto shall be made and prepared in accordance with GAAP consistently applied throughout the periods involved (except as set forth in the notes thereto); provided that, (i) except thereto or as otherwise specifically provided herein, all computations and all definitions (including accounting terms) used disclosed in determining compliance with Sections 2.14, 8.13 and 9 and calculations of writing by the First Lien Net Leverage Ratio, Secured Net Leverage Ratio, Total Net Leverage Ratio and Interest Coverage Ratio, shall utilize GAAP and policies in conformity with those used to prepare the Pro Forma Financial Statements (subject to purchase accounting and other adjustments reasonably satisfactory Borrower to the Administrative Agent as a result of the AcquisitionLenders); 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 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 becomes effective until such notice shall have been withdrawn or such provision amended in accordance herewith; provided, further, that if such an amendment is requested by the Borrower or the Required Lenders, then the Borrower and the Administrative Agent shall negotiate in good faith to enter into an amendment of the relevant affected provisions (without the payment of any amendment or similar fee to the Lenders) to preserve the original intent thereof in light of such change in GAAP or the application thereof, (ii) except as otherwise expressly provided herein, for purposes of calculating financial terms, all covenants and related definitions, all such calculations shall be based on the operations, assets and results of the Borrower and its Restricted Subsidiaries on a consolidated basis and shall be made without giving effect to the operations, assets or results of any Unrestricted Subsidiaries, (iiii) notwithstanding anything to the contrary contained herein, all such financial statements shall be prepared, and all financial covenants and financial ratios contained herein or in any other Credit Document shall be calculated, in each case, without giving effect to any election under FASB ASC 825 (or any similar accounting principle) permitting a Person to value its financial liabilities at the fair value thereof, (ivii) all financial statements delivered to the extent expressly provided herein, certain calculations shall be made on a pro forma basis, and (iii) for the avoidance of doubt, all operating lease expense and other liabilities with respect to leases of the Borrower and its Subsidiaries that would constitute operating leases under GAAP as of the Initial Borrowing Date shall not be included in the calculations of Indebtedness, Capital Expenditures or Consolidated Interest Expense hereunder. The Borrower and the Administrative Agent Agent, on behalf of the Lenders, agree that in accordance with the terms event of any material change in GAAP (any such change, for the purpose of this Agreement Section 13.07, an “Accounting Change”) that occurs after the date of this Agreement, then following the written request of any accounting change of the Borrower, the Administrative Agent or the Required Lenders, the Borrower and the Administrative Agent shall contain a schedule showing enter into good faith negotiations in order to amend such provisions of this Agreement so as to equitably reflect any such Accounting Change with the adjustmentsdesired result that the criteria for evaluating the financial condition of the Borrower and its Subsidiaries shall be the same after such Accounting Change as if such Accounting Change had not been made, and until such time as such an amendment shall have been executed and delivered by the Borrower and the Required Lenders, (a) all financial covenants, standards and terms in any, necessary to reconcile this Agreement shall be calculated and/or construed as if such financial statements with GAAP as in effect immediately prior to such accounting changesAccounting Change had not been made, and (vb) all references in this Agreement to a four-Fiscal Quarter period of the Borrower referring shall prepare footnotes to a period prior to the Closing Date shall refer to the applicable period prior to the Closing Date as if the Borrower had existed each certificate and the Transaction has occurred on financial statements required to be delivered pursuant to Sections 9.01(a), (b), (c) and (f) that show the first day of said periodmaterial differences between the financial statements delivered (which reflect such Accounting Change) and the basis for calculating financial covenant compliance (without reflecting such Accounting Change).
Appears in 1 contract
Calculations; Computations. (a) The financial statements to be furnished to the Lenders pursuant hereto shall be made and prepared in accordance with GAAP consistently applied throughout the periods involved (except as set forth in the notes thereto); provided thatprovided, that (i) except as otherwise specifically provided herein, all computations and all definitions (including accounting terms) used in determining compliance with Sections 2.14, 8.13 9.17 and 9 10 and calculations of the First Lien Net Leverage Fixed Charge Coverage Ratio, the Secured Net Leverage Ratio, Total Net Leverage Ratio and Interest Coverage the Total Net Leverage Ratio, shall utilize GAAP and policies in conformity with those used to prepare the Pro Forma Financial Statements (subject to purchase accounting and other adjustments reasonably satisfactory to the Administrative Agent as a result of the Acquisition); provided provided, that if the Borrower notifies Borrowers notify the Administrative Agent that the Borrower requests Borrowers request an amendment to any provision hereof to eliminate the effect of any change occurring in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrower Borrowers that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change becomes effective until such notice shall have been withdrawn or such provision amended in accordance herewith; provided, further, that if such an amendment is requested by the Borrower Borrowers or the Required Lenders, then the Borrower Borrowers and the Administrative Agent shall negotiate in good faith to enter into an amendment of the relevant affected provisions (without the payment of any amendment or similar fee to the Lenders) to preserve the original intent thereof in light of such change in GAAP or the application thereof, (ii) except as otherwise expressly provided herein, for purposes of calculating financial terms, all covenants and related definitions, all such calculations shall be based on the operations, assets and results of the Borrower Company and its Restricted Subsidiaries on a consolidated basis and shall be made without giving effect to the operations, assets or results of any Unrestricted Subsidiariesbasis, (iii) notwithstanding anything to the contrary contained herein, all covenants and financial ratios contained herein or in any other Credit Document shall be calculated, in each case, without giving effect to any election under FASB ASC 825 (or any similar accounting principle) permitting a Person to value its financial liabilities at the fair value thereof, (iv) all financial statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of any accounting change shall contain a schedule showing the adjustments, in any, necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting changes, and (v) all references in this Agreement to a four-Fiscal Quarter period of the Borrower Company referring to a period prior to the Closing Effective Date shall refer to the applicable period prior to the Closing Effective Date as if the Borrower Company had existed and the Transaction has occurred on the first day of said period.
Appears in 1 contract
Samples: Schedules (J.Jill, Inc.)
Calculations; Computations. (a) The financial statements to be furnished to the Lenders pursuant hereto shall be made and prepared in accordance with GAAP consistently applied throughout the periods involved (except as set forth in the notes theretothereto or as otherwise disclosed in writing by Holdings to the Lenders); provided that, that (iA) except as otherwise specifically provided herein, all computations of Excess Cash Flow and the Applicable Margin, and all computations and all definitions (including accounting terms) used in determining compliance with Sections 2.14, 8.13 the Total Leverage Covenant and 9 and calculations of in determining the Total First Lien Net Leverage Ratio, Secured Net Leverage Ratio, the Total Net Leverage Ratio and Interest Coverage Ratiothe Total Secured Leverage Ratio (the “Leverage Ratios”), shall utilize GAAP and policies in conformity with those used to prepare the Pro Forma Financial Statements (subject audited financial statements referred to purchase accounting and other adjustments reasonably satisfactory to in Section 6.1(b) for the Administrative Agent as a result of the Acquisition); 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 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)fiscal year ended January 31, regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change becomes effective until such notice shall have been withdrawn or such provision amended in accordance herewith; provided, further, that if such an amendment is requested by the Borrower or the Required Lenders, then the Borrower and the Administrative Agent shall negotiate in good faith to enter into an amendment of the relevant affected provisions (without the payment of any amendment or similar fee to the Lenders) to preserve the original intent thereof in light of such change in GAAP or the application thereof2011, (ii) except as otherwise expressly provided herein, for purposes of calculating financial terms, all covenants and related definitions, all such calculations shall be based on the operations, assets and results of the Borrower and its Restricted Subsidiaries on a consolidated basis and shall be made without giving effect to the operations, assets or results of any Unrestricted Subsidiaries, (iiiB) notwithstanding anything to the contrary contained herein, all covenants such financial statements shall be prepared, and financial ratios contained herein or in any other Credit Document the Total Leverage Covenant and the Leverage Ratios shall be calculated, in each case, without giving effect to any election under FASB ASC 825 (or any similar accounting principle) permitting a Person to value its financial liabilities at the fair value thereofthereof and (C) to the extent expressly provided herein, certain calculations shall be made on a Pro Forma Basis. In the event that any “Accounting Change” (ivas defined below) shall occur and such change results in a change in the method of calculation of all financial statements delivered to computations and all definitions (including accounting terms) used in determining compliance with the Total Leverage Covenant, then at the U.S. Borrower’s request, the Administrative Agent shall enter into negotiations with the U.S. Borrower in order to amend such provisions of this Agreement so as to reflect equitably such Accounting Changes with the desired result that the criteria for evaluating the U.S. Borrower’s financial condition shall be the same after such Accounting Changes as if such Accounting Changes had not been made; provided, that (i) no amendment fee shall be payable in connection therewith, (ii) any such amendments that relate to Section 9.1 shall be subject to the prior written consent of the Required Revolving Lenders (such consent not to be unreasonably withheld or delayed) and not the Required Lenders and (iii) all amendments relating to the Leverage Ratios (other than in connection with Section 9.1) shall be subject to the prior written consent of the Required Lenders (such consent not to be unreasonably withheld or delayed) and not the Required Revolving Lenders. Until such time as such an amendment shall have been executed and delivered by the parties hereto in accordance with the this Section 13.7, standards and terms of this Agreement after the date of any accounting change shall contain a schedule showing the adjustments, in any, necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting changes, and (v) all references in this Agreement shall continue to a four-Fiscal Quarter period be calculated or construed as if such Accounting Changes had not occurred (other than for purposes of delivery of financial statements under Sections 8.1(a) and (b)). “Accounting Changes” refers to changes in accounting principles (i) required by the promulgation of any rule, regulation, pronouncement or opinion by the Financial Accounting Standards Board of the American Institute of Certified Public Accountants or, if applicable, the SEC or (ii) otherwise proposed by the U.S. Borrower referring to a period prior to to, and approved by, the Closing Date shall refer to the applicable period prior to the Closing Date as if the Borrower had existed and the Transaction has occurred on the first day of said periodAdministrative Agent.
Appears in 1 contract
Calculations; Computations. (a) The financial statements to be furnished to the Lenders pursuant hereto shall be made and prepared in accordance with GAAP consistently applied throughout the periods involved (except as set forth in the notes thereto); provided that, (i) except as otherwise specifically provided herein, all computations and all definitions (including accounting terms) used in determining compliance with Sections 2.14, 8.13 and 9 and calculations of the First Lien Net Leverage Ratio, Secured Net Leverage Ratio, Total Net Leverage Ratio and Interest Coverage Ratio, shall utilize GAAP and policies in conformity with those used to prepare the Pro Forma Financial Statements (subject to purchase accounting and other adjustments reasonably satisfactory to the Administrative Agent as a result of the Acquisition); 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 in GAAP or in the application thereof on the operation of such provision (or if the Administrative 146 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 becomes effective until such notice shall have been withdrawn or such provision amended in accordance herewith; provided, further, that if such an amendment is requested by the Borrower or the Required Lenders, then the Borrower and the Administrative Agent shall negotiate in good faith to enter into an amendment of the relevant affected provisions (without the payment of any amendment or similar fee to the Lenders) to preserve the original intent thereof in light of such change in GAAP or the application thereof, (ii) except as otherwise expressly provided herein, for purposes of calculating financial terms, all covenants and related definitions, all such calculations shall be based on the operations, assets and results of the Borrower and its Restricted Subsidiaries on a consolidated basis and shall be made without giving effect to the operations, assets or results of any Unrestricted Subsidiaries, (iii) notwithstanding anything to the contrary contained herein, all covenants and financial ratios contained herein or in any other Credit Document shall be calculated, in each case, without giving effect to any election under FASB ASC 825 (or any similar accounting principle) permitting a Person to value its financial liabilities at the fair value thereof, (iv) all financial statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of any accounting change shall contain a schedule showing the adjustments, in any, necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting changes, and (v) all references in this Agreement to a four-Fiscal Quarter period of the Borrower referring to a period prior to the Closing Date shall refer to the applicable period prior to the Closing Date as if the Borrower had existed and the Transaction has occurred on the first day of said period.
Appears in 1 contract
Samples: Security Agreement
Calculations; Computations. (a) The financial statements to be furnished to the Lenders pursuant hereto shall be made and prepared in accordance with GAAP consistently applied throughout the periods involved (except as set forth in the notes thereto); provided that, (i) except thereto or as otherwise specifically provided herein, all computations and all definitions (including accounting terms) used disclosed in determining compliance with Sections 2.14, 8.13 and 9 and calculations of writing by the First Lien Net Leverage Ratio, Secured Net Leverage Ratio, Total Net Leverage Ratio and Interest Coverage Ratio, shall utilize GAAP and policies in conformity with those used to prepare the Pro Forma Financial Statements (subject to purchase accounting and other adjustments reasonably satisfactory Borrower to the Administrative Agent as a result of the AcquisitionLenders); 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 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 becomes effective until such notice shall have been withdrawn or such provision amended in accordance herewith; provided, further, that if such an amendment is requested by the Borrower or the Required Lenders, then the Borrower and the Administrative Agent shall negotiate in good faith to enter into an amendment of the relevant affected provisions (without the payment of any amendment or similar fee to the Lenders) to preserve the original intent thereof in light of such change in GAAP or the application thereof, (ii) except as otherwise expressly provided herein, for purposes of calculating financial terms, all covenants and related definitions, all such calculations shall be based on the operations, assets and results of the Borrower and its Restricted Subsidiaries on a consolidated basis and shall be made without giving effect to the operations, assets or results of any Unrestricted Subsidiaries, (iiii) notwithstanding anything to the contrary contained herein, all such financial statements shall be prepared, and all financial covenants and financial ratios contained herein or in any other Credit Document shall be calculated, in each case, without giving effect to any election under FASB ASC 825 (or any similar accounting principle) permitting a Person to value its financial liabilities at the fair value thereof, (ivii) all financial statements delivered to the extent expressly provided herein, certain calculations shall be made on a pro forma basis, and (iii) for the avoidance of doubt, all operating lease expense and other liabilities with respect to leases of the Borrower and its Subsidiaries that would constitute operating leases under GAAP as of the Effective Date shall not be included in the calculations of Indebtedness or Consolidated Interest Expense hereunder. The Borrower and the Administrative Agent Agent, on behalf of the Lenders, agree that in accordance with the terms event of any material change in GAAP (any such change, for the purpose of this Agreement Section 13.07, an “Accounting Change”) that occurs after the date of this Agreement, then following the written request of any accounting change of the Borrower, the Administrative Agent or the Required Lenders, the Borrower and the Administrative Agent shall contain a schedule showing enter into good faith negotiations in order to amend such provisions of this Agreement so as to equitably reflect any such Accounting Change with the adjustmentsdesired result that the criteria for evaluating the financial condition of the Borrower and its Subsidiaries shall be the same after such Accounting Change as if such Accounting Change had not been made, and until such time as such an amendment shall have been executed and delivered by the Borrower and the Required Lenders, (a) all financial covenants, standards and terms in any, necessary to reconcile this Agreement shall be calculated and/or construed as if such financial statements with GAAP as in effect immediately prior to such accounting changesAccounting Change had not been made, and (vb) all references in this Agreement to a four-Fiscal Quarter period of the Borrower referring shall prepare footnotes to a period prior to the Closing Date shall refer to the applicable period prior to the Closing Date as if the Borrower had existed each certificate and the Transaction has occurred on financial statements required to be delivered pursuant to Sections 9.01(a), (b), (c) and (f) that show the first day of said periodmaterial differences between the financial statements delivered (which reflect such Accounting Change) and the basis for calculating financial covenant compliance (without reflecting such Accounting Change).
Appears in 1 contract
Calculations; Computations. (a) The financial statements to be furnished to the Lenders Banks pursuant hereto shall be made and prepared in accordance with GAAP generally accepted accounting principles in the United States consistently applied throughout the periods involved (except as set forth in the notes theretothereto or as otherwise disclosed in writing by the Borrower to the Banks); provided that, (iw) except as otherwise specifically provided herein, all computations of the Applicable Commitment Commission Percentage, the Interest Reduction Discount and all definitions (including accounting terms) used in computations determining compliance with Sections 2.14, 8.13 and Section 9 and calculations of the First Lien Net Leverage Ratio, Secured Net Leverage Ratio, Total Net Leverage Ratio and Interest Coverage Ratio, shall utilize GAAP accounting principles and policies in conformity with those used to prepare the Pro Forma Financial Statements (subject to purchase accounting and other adjustments reasonably satisfactory to the Administrative Agent as a result of the Acquisition); provided that if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change becomes effective until such notice shall have been withdrawn or such provision amended in accordance herewith; provided, further, that if such an amendment is requested by the Borrower or the Required Lenders, then the Borrower and the Administrative Agent shall negotiate in good faith to enter into an amendment of the relevant affected provisions (without the payment of any amendment or similar fee to the Lenders) to preserve the original intent thereof in light of such change in GAAP or the application thereof, (ii) except as otherwise expressly provided herein, for purposes of calculating financial terms, all covenants and related definitions, all such calculations shall be based on the operations, assets and results of the Borrower and its Restricted Subsidiaries on a consolidated basis and shall be made without giving effect to the operations, assets or results of any Unrestricted Subsidiaries, (iii) notwithstanding anything to the contrary contained herein, all covenants and financial ratios contained herein or in any other Credit Document shall be calculated, in each case, without giving effect to any election under FASB ASC 825 (or any similar accounting principle) permitting a Person to value its financial liabilities at the fair value thereof, (iv) all pro forma financial statements delivered to the Administrative Agent in accordance Banks pursuant to Section 7.05(a)(V) (with the terms foregoing generally accepted accounting principles, subject to the preceding proviso, herein called "GAAP"), (x) any interest income earned with respect to funds from time to time on deposit pursuant to the Existing Seller Letter of this Credit Collateral Agreement after the date shall not be included for purposes of any accounting change shall contain a schedule showing of the adjustments, in any, necessary to reconcile such financial statements with GAAP covenants as in effect immediately prior to such accounting changes, and (v) all references in this Agreement to a four-Fiscal Quarter period income of the Borrower referring to a period prior or its Subsidiaries, (y) any interest expense with respect to the Closing Date Existing Seller Installment Note shall refer not be included in Consolidated Interest Expense, and shall not reduce Consolidated Net Income, to the applicable period prior extent such interest expense is offset by earnings with respect to funds deposited pursuant to the Closing Date as if Existing Seller Letter of Credit Collateral Agreement and Consolidated Interest Expense shall not include, and Consolidated Net Income shall not be reduced by, fees owing pursuant to the Borrower had existed Existing Seller Letter of Credit (or the agreement pursuant to which same was issued) to the extent such fees are paid (whether directly to the issuer of the Existing Seller Letter of Credit or by way of reimbursement to the Borrower) by the XX Xxxxxxx (although such payments by the XX Xxxxxxx shall likewise not be included in Consolidated Net Income) and (z) to the Transaction has occurred extent expressly required pursuant to the provisions of this Agreement, certain calculations shall be made on the first day of said perioda Pro Forma Basis.
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Calculations; Computations. (a) The financial statements to be furnished to the Lenders pursuant hereto shall be made and prepared in accordance with GAAP consistently applied throughout the periods involved (except as set forth in the notes theretothereto or as otherwise disclosed in writing by the Company to the Lenders); provided that, (i) except as otherwise specifically provided herein, all computations and all definitions (including accounting terms) used in determining the Fixed Charge Coverage Ratio and the Total Secured Leverage Ratio in determining compliance with Sections 2.14, 8.13 Section 9.13 and 9 and calculations of the First Lien Net Leverage Ratio, Secured Net Leverage Ratio, Total Net Leverage Ratio and Interest Coverage Ratio, Section 10 shall utilize GAAP and policies in conformity with those used to prepare the Pro Forma Financial Statements audited financial statements of the Company referred to in Section 8.05(a) for its fiscal year ended, and otherwise in effect as of, October 31, 2011not specifically or completely defined herein shall be construed in conformity with, and all financial data (subject to purchase accounting including financial ratios and other adjustments reasonably satisfactory financial calculations) required to the Administrative Agent as a result of the Acquisition); be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP (provided that if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to at any provision hereof to eliminate the effect of time any change occurring in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the 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 would affect the computation of any financial ratio or financial term or definition set forth in effect any Credit Document and applied immediately before such change becomes effective until such notice shall have been withdrawn or such provision amended in accordance herewith; provided, further, that if such an amendment is requested by either the Borrower Company or the Required LendersLenders shall so request, then the Borrower Administrative Agent, the Lenders and the Administrative Agent Borrowers shall negotiate in good faith to enter into an amendment amend (subject to the approval of the relevant affected provisions (without the payment of any amendment or similar fee to the Required Lenders) such ratio or covenant to preserve the original intent thereof in light of such change in GAAP (or in the application thereofof) GAAP; provided, further, that, until so amended, (i) such ratio shall continue to be computed in accordance with GAAP prior to such change and (ii) the Company shall provide to the Administrative Agent financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or financial covenant made before and after giving effect to such change in (or in the application of) GAAP as is reasonably necessary to demonstrate the calculation of and compliance (or non-compliance) with such ratio) , (ii) except as otherwise expressly provided herein, for purposes of calculating financial terms, all covenants and related definitions, all such calculations shall be based on the operations, assets and results of the Borrower and its Restricted Subsidiaries on a consolidated basis and shall be made without giving effect to the operations, assets or results of any Unrestricted Subsidiaries, (iii) notwithstanding anything to the contrary contained herein, all such financial statements shall be prepared, and all financial covenants and financial ratios contained herein or in any other Credit Document shall be calculated, in each case, without giving effect to (x) any election under FASB ASC 825 (or any similar accounting principle) principle permitting a Person to value its financial liabilities at the fair value thereof), or (y) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof, (iii) to the extent expressly provided herein, certain calculations shall be made on a Pro Forma Basis and (iv) all financial statements delivered notwithstanding anything in the foregoing to the Administrative Agent contrary, for purposes of determining compliance with Section 5.02(b) or (c), Section 10 or any other incurrence or expenditure test set forth herein with respect to any amount in accordance a currency other than U.S. Dollars, no Default or Event of Default shall be deemed to have occurred solely as a result of changes in rates of currency exchange occurring after the time of such incurrence or expenditure or receipt of any such amount (so long as such incurrence or expenditure or receipt of any such amount, at the time incurred, made, received or acquired, was permitted hereunder). For purposes of determining compliance with any U.S. Dollar-denominated restriction or exception provided for in Section 5.02(b) or (c), Section 10 or any other incurrence or expenditure test set forth herein, the terms of this Agreement after U.S. Dollar-equivalent amount thereof denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date of such incurrence or expenditure or receipt of any accounting change shall contain a schedule showing the adjustmentssuch amount, or first committed, in anythe case of revolving credit debt; provided that if any Indebtedness otherwise permitted to be incurred hereunder is incurred to extend, necessary replace, refund, refinance, renew or defease other Indebtedness denominated in a foreign currency, and such extension, replacement, refunding, refinancing, renewal or defeasance would cause the applicable U.S. Dollar-denominated restriction to reconcile such financial statements with GAAP as be exceeded if calculated at the relevant currency exchange rate in effect immediately prior to such accounting changes, and (v) all references in this Agreement to a four-Fiscal Quarter period of the Borrower referring to a period prior to the Closing Date shall refer to the applicable period prior to the Closing Date as if the Borrower had existed and the Transaction has occurred on the first day date of said periodsuch extension, replacement, refunding, refinancing, renewal or defeasance, such U.S. Dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being extended, replaced, refunded, refinanced, renewed or defeased, plus the aggregate amount of fees, underwriting discounts, premiums (including tender premiums) and other reasonable costs and expenses (including original issue discount) incurred in connection with such refinancing.
Appears in 1 contract
Samples: Credit Agreement (Ciena Corp)
Calculations; Computations. (a) The financial statements to be furnished to the Administrative Agent and the Lenders pursuant hereto shall be made and prepared in accordance with GAAP consistently applied throughout as in effect from time to time during the periods involved (except as set forth in the notes thereto); provided that, (i) except thereto or as otherwise specifically provided herein, all computations and all definitions (including accounting terms) used disclosed in determining compliance with Sections 2.14, 8.13 and 9 and calculations of writing by Holdings or the First Lien Net Leverage Ratio, Secured Net Leverage Ratio, Total Net Leverage Ratio and Interest Coverage Ratio, shall utilize GAAP and policies in conformity with those used to prepare the Pro Forma Financial Statements (subject to purchase accounting and other adjustments reasonably satisfactory Borrower to the Administrative Agent Agent). Any changes in GAAP after the Closing Date, as applied in the preparation of such financial statements, or changes in the presentation of such financial statements that are mandated or otherwise required by a result of Governmental Authority, will be incorporated in such calculations, computations and presentation unless Holdings, by written notice to the Acquisition); provided that if the Borrower notifies Administrative Agent, or the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change becomes effective until such notice shall have been withdrawn or such provision amended in accordance herewith; provided, further, that if such an amendment is requested by the Borrower or the Required Lenders, then the Borrower and the Administrative Agent shall negotiate in good faith by written notice to enter into an amendment of the relevant affected provisions (without the payment of any amendment or similar fee Holdings, objects to the Lenders) inclusion of such changes in GAAP or presentation, whereupon such changes in GAAP or presentation shall be excluded from calculations and computations hereunder until such time as the parties hereto have amended this Agreement to preserve reflect appropriately the original intent thereof in light effect of such change in GAAP or presentation, and, in any event, Holdings shall provide to the application thereof, (ii) except Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as otherwise expressly provided herein, for purposes reasonably requested hereunder setting forth a reconciliation between calculations of calculating financial terms, all covenants such ratio or requirement made before and related definitions, all after giving effect to such calculations change in GAAP or presentation. Interest and Fees shall be calculatedIn furtherance of the foregoing, Holdings, the Borrower, the Administrative Agent and the Lenders agree that to the extent there is an amendment to this Agreement to reflect appropriately the effect of any change in GAAP or presentation as provided in the foregoing sentence the entrance into such amendment shall be at no cost to the Credit Parties other than the reimbursement of the Administrative Agent’s costs and expenses as contemplated by Section 12.1. Interest hereunder based on the operations, assets Administrative Agent’s prime lending rate shall be computed on the basis of a 360-day year of 365 days (or 366 days in a leap year) and results paid for the actual number of days elapsed (including the Borrower first day but excluding the last day). All other interest and its Restricted Subsidiaries all fees hereunder shall be computed on the basis of a consolidated basis year of 360 days and paid for the actual number of days elapsed (including the first day but excluding the last day). Each determination by the Administrative Agent of an interest rate or fee hereunder shall be made without giving effect in good faith and, except for manifest error, shall be final, conclusive and binding for all purposes. Any change in the interest rate on a Loan resulting from a change in the Base Rate or the Eurocurrency Reserve Requirementsany reserve requirement with respect to eurocurrency funding shall become effective as of the operationsopening of business on the day on which such change in the Base Rate is announced or such change in the Eurocurrency Reserve Requirementsreserve requirement with respect to eurocurrency funding becomes effective, assets or results of as the case may be. Notwithstanding any Unrestricted Subsidiaries, (iii) notwithstanding anything to the contrary other provision contained herein, (a) all covenants and terms of an accounting or financial ratios contained nature used herein or in any other Credit Document shall be calculatedconstrued, in each caseand all computations of amounts and ratios referred to herein shall be made, without giving effect to any election under FASB ASC 825 Accounting Standards Codification Section 825-10 (or any other Financial Accounting Standard having a similar accounting principleresult or effect including ASU 2015-03, 1 and any other related treatment for debt discounts and premiums, such as original issue discount) permitting a Person to value its financial any Indebtedness or other liabilities of any Credit Party or any Subsidiary of any Credit Party at the “fair value thereofvalue”, as defined therein and (ivb) for all financial statements delivered to the Administrative Agent in accordance with the terms purposes of this Agreement after and the date of any accounting change shall contain other Credit Documents, including negative covenants, financial covenants and component definitions, GAAP will be deemed to treat operating leases and Capital Leases in a schedule showing manner consistent with the adjustments, in any, necessary to reconcile such financial statements with treatment under GAAP as in effect immediately prior to such accounting changes, and (v) all references in this Agreement to a four-Fiscal Quarter period of the Borrower referring to a period prior to the Closing Date shall refer to issuance by the applicable period prior to the Closing Date as if the Borrower had existed and the Transaction has occurred Financial Accounting Standards Board on the first day February 25, 2016 of said periodAccounting Standards Update No. 2016-02.
Appears in 1 contract
Samples: Credit Agreement (Air Transport Services Group, Inc.)
