Consolidated Net Income. For any fiscal period, the consolidated net income of the Parent and its Subsidiaries for such period, as determined in accordance with GAAP, except that in no event shall such consolidated net income include: (a) any extraordinary or nonrecurring gains; (b) the net income of any Subsidiary during such period to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary of such income is not permitted by operation of the terms of its organizational documents or any agreement, instrument or law applicable to such Subsidiary during such period, except that Parent’s equity in any net loss of any such Subsidiary for such period shall be included in determining Consolidated Net Income; (c) any income (or loss) for such period of any Person if such Person is not a Subsidiary of Parent or its Subsidiaries, except that Parent’s or its Subsidiaries equity in the net income of any such Person for such period shall be included in Consolidated Net Income up to the aggregate amount of cash actually distributed by such Person during such Period to Parent or its Subsidiaries as a dividend or other distribution (and in the case of a dividend or other distribution to a Subsidiary, such Subsidiary is not precluded from further distributing such amount to Parent as described in clause (b) of this proviso); (d) any gain or loss arising from any write-up of assets or “gain-on-sale” accounting (including without limitation with respect to sales to a Special Purpose Subsidiary), except to the extent inclusion thereof shall be approved in writing by the Agent; (e) earnings of any Subsidiary accrued prior to the date it became a Subsidiary; (f) any non-cash stock based compensation income or expense related to restricted stock or stock options; (g) any deferred or other credit representing any excess of the equity of any Subsidiary at the date of acquisition thereof over the amount invested in such Subsidiary; (h) the proceeds of any life insurance policy; and (i) any reversal of any contingency reserve, except to the extent that provision for such contingency reserve shall be made from income arising during such period.
Appears in 2 contracts
Samples: Credit Agreement (Microfinancial Inc), Credit Agreement (Microfinancial Inc)
Consolidated Net Income. For any fiscal period, the consolidated net income of the Parent and its Subsidiaries for such period, as determined in accordance with GAAP, except that in no event shall such consolidated net income include: (a) any extraordinary or nonrecurring gains; (b) the net income of any Subsidiary during such period to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary of such income is not permitted by operation of the terms of its organizational documents or any agreement, instrument or law applicable to such Subsidiary during such period, except that Parent’s equity in any net loss of any such Subsidiary for such period shall be included in determining Consolidated Net Income; (c) any income (or loss) for such period of any Person if such Person is not a Subsidiary of Parent or its Subsidiaries, except that Parent’s or its Subsidiaries equity in the net income of any such Person for such period shall be included in Consolidated Net Income up to the aggregate amount of cash actually distributed by such Person during such Period to Parent or its Subsidiaries as a dividend or other distribution (and in the case of a dividend or other distribution to a Subsidiary, such Subsidiary is not precluded from further distributing such amount to Parent as described in clause (b) of this proviso); (d) any gain or loss arising from any write-up of assets or “gain-on-sale” accounting (including without limitation with respect to sales to a Special Purpose Subsidiary), except to the extent inclusion thereof shall be approved in writing by the Agent; (e) earnings of any Subsidiary accrued prior to the date it became a Subsidiary; (f) any non-cash stock based compensation income or expense related to restricted stock or stock options; (g) any deferred or other credit representing any excess of the equity of any Subsidiary at the date of acquisition thereof over the amount invested in such Subsidiary; (h) the proceeds of any life insurance policy; and (i) any reversal of any contingency reserve, except to the extent that provision for such contingency reserve shall be made from income arising during such period.the
Appears in 1 contract
Consolidated Net Income. For any fiscal period, the consolidated net income gross revenues of the Parent GNA and its Subsidiaries for such period, as less all expenses and other proper charges, all determined in accordance with GAAP, except that but in no any event there shall be excluded or deducted from such consolidated net income includegross revenues: (a) any extraordinary or nonrecurring gains; (b) the net income of any Subsidiary during such period to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary of such income is not permitted by operation of the terms of its organizational documents or any agreement, instrument or law applicable to such Subsidiary during such period, except that Parent’s equity in any net loss of any such Subsidiary for such period shall be included in determining Consolidated Net Income; (c) any income (or loss) for such period of any Person if such Person is not a Subsidiary of Parent or its Subsidiaries, except that Parent’s or its Subsidiaries equity in the net income of any such Person for such period shall be included in Consolidated Net Income up to the aggregate amount of cash actually distributed by such Person during such Period to Parent or its Subsidiaries as a dividend or other distribution (and in the case of a dividend or other distribution to a Subsidiary, such Subsidiary is not precluded from further distributing such amount to Parent as described in clause (b) of this proviso); (di) any gain or loss arising from any write-up of assets or “gain-on-sale” accounting (including without limitation with respect to sales to a Special Purpose Subsidiary)assets, except to the extent inclusion thereof shall be approved in writing by the AgentMajority Lenders; (eii) earnings of any Subsidiary accrued prior to the date it became a Subsidiary; (fiii) any non-cash stock based compensation income extraordinary or expense related to restricted stock or stock optionsnonrecurring gains; (giv) any deferred or other credit representing any excess of the equity of any Subsidiary at the date of acquisition thereof over the amount invested in such Subsidiary; (hv) the net earnings of any business entity (other than a Subsidiary) in which GNA or any Subsidiary has an ownership interest, except to the extent such net earnings shall have actually been received by GNA or such Subsidiary in the form of cash distributions; (vi) the proceeds of any life insurance policy; and (ivii) any reversal of any contingency reserve, except to the extent that provision for such contingency reserve shall be made from income arising during such period; and (viii) for any period when a Borrower is an S Corporation, an amount equal to the Sub S Distribution Amount with respect to such Borrower. Consolidated Net Worth. At any date as of which the amount thereof shall be determined, the consolidated total assets of GNA and its Subsidiaries, with Inventory and cost of goods determined on an average "first in, first out" basis consistent with the Borrowers' past practices, plus the value of the minority interests in Holding, and minus (a) Consolidated Total Liabilities and (b) the sum of any amounts attributable to (i) all reserves not already deducted from assets or included in Consolidated Total Liabilities, (ii) any write-up in the book value of assets resulting from any revaluation thereof subsequent to the date of the Initial Financial Statements, (iii) intercompany accounts with Subsidiaries and Affiliates (including receivables due from Subsidiaries and Affiliates), (iv) the value, if any, attributable to any capital stock of GNA or any Subsidiary held in treasury, (v) the value, if any, attributable to any notes or subscriptions receivable due from stockholders in respect of capital stock; and, (vi) an amount equal to the excess, if any, of the Sub S Distribution Amount for the twelve months preceding the date of computation of Consolidated Net Worth over the total amount distributed to stockholders in respect to such twelve month period pursuant to Section 7.6(b) and deducted in computing such Consolidated Net Worth.
Appears in 1 contract
Consolidated Net Income. For any fiscal period, (i) the consolidated net income (or loss) of the Parent Borrower and its Subsidiaries for such period, as period determined on a consolidated basis in accordance with GAAP, except GAAP on a consolidated basis (without duplication) for such period (without deduction for minority interests); ________ provided that in no event shall such consolidated net income include: determining Consolidated Net Income, (a) the net income of any extraordinary other Person which is not a Subsidiary of the Borrower, is an Unrestricted Subsidiary or nonrecurring gainsis accounted for by the Borrower by the equity method of accounting shall be included only to the extent of the payment of cash dividends or cash distributions by such other Person to the Borrower or a Guarantor that could be made during such period; provided, however, that for purposes of calculating the Cumulative Credit for purposes of Section 7.06(e)(y), such income shall only be included (directly or indirectly) to the extent such cash dividends or other cash distributions are actually received from such other Person by the Borrower or a Guarantor, (b) the net income of any Subsidiary during such period of the Borrower shall be excluded to the extent that the declaration or payment of cash dividends or similar cash distributions by such that Subsidiary of such that net income is not at the date of determination permitted by operation of the terms of its organizational documents charter or any agreement, instrument or law applicable to such Subsidiary during such period(other than (i) restrictions that have been waived or otherwise released, except that Parent’s equity (ii) restrictions pursuant to the Loan Documents and or the ABL Facility Documentation and (iii) restrictions arising pursuant to an agreement or instrument if the encumbrances and restrictions contained in any net such agreement or instrument taken as a whole are not materially less favorable to the Secured Parties than the encumbrances and restrictions contained in the Loan Documents (as determined by the Borrower in good faith)) and (c) the income or loss of any such Subsidiary for such period shall be included in determining Consolidated Net Income; (c) any income (or loss) for such period of any Person if such Person is not a Subsidiary of Parent or its Subsidiaries, except that Parent’s or its Subsidiaries equity in the net income of any such Person for such period shall be included in Consolidated Net Income up to the aggregate amount of cash actually distributed by such Person during such Period to Parent or its Subsidiaries as a dividend or other distribution (and in the case of a dividend or other distribution to a Subsidiary, such Subsidiary is not precluded from further distributing such amount to Parent as described in clause (b) of this proviso); (d) any gain or loss arising from any write-up of assets or “gain-on-sale” accounting (including without limitation with respect to sales to a Special Purpose Subsidiary), except to the extent inclusion thereof shall be approved in writing by the Agent; (e) earnings of any Subsidiary accrued prior to the date it became becomes a Subsidiary; (f) any non-cash stock based compensation income Subsidiary or expense related to restricted stock is merged into or stock options; (g) any deferred consolidated with the Borrower or other credit representing any excess of the equity of any Subsidiary at or the date of acquisition thereof over that such Person’s assets are acquired by the amount invested in such Subsidiary; (h) the proceeds of Borrower or any life insurance policy; and (i) any reversal of any contingency reserve, except to the extent that provision for such contingency reserve Subsidiary shall be made from income arising during such period.excluded. Consolidated Net Income = ________
Appears in 1 contract
Consolidated Net Income. For At any date of determination for any fiscal period, the consolidated net income (or loss) of the Parent Borrowers and its their Subsidiaries on a Consolidated basis for such fiscal period; provided that Consolidated Net Income shall exclude, as determined in accordance with GAAP, except that in no event shall such consolidated net income includewithout duplication: (a) any extraordinary or nonrecurring gainsgains and extraordinary losses for such fiscal period; (b) the net income of any Subsidiary during such fiscal period to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary of such income is not permitted by operation of the terms of its organizational organization documents or any agreement, instrument or law applicable to such Subsidiary during such fiscal period, except that Parent’s the Borrowers’ equity in any net loss of any such Subsidiary for such fiscal period shall be included in determining Consolidated Net Income; (c) any income (or loss) for such period Period of any Person if such Person is not a Subsidiary of Parent or its SubsidiariesSubsidiary, except that Parent’s or its Subsidiaries the Borrowers’ equity in the net income of any such Person for such fiscal period shall be included in Consolidated Net Income up to the aggregate amount of cash actually distributed by such Person during such Period to Parent the Borrowers or its Subsidiaries a Subsidiary as a dividend or other distribution (and in the case of a dividend or other distribution to a Subsidiary, such Subsidiary is not precluded from further distributing such amount to Parent the Borrowers as described in clause (b) of this proviso); (d) any gain or loss arising from any write-up of assets or “gain-on-sale” accounting (including without limitation with respect to sales to a Special Purpose Subsidiary)assets, except to the extent inclusion thereof shall be approved in writing by the Administrative Agent; (e) earnings of any Subsidiary accrued prior to the date it became a Subsidiary; (f) any non-cash stock based compensation income or expense related to restricted stock or stock options; (g) any deferred or other credit representing any excess of the equity of any Subsidiary at the date of acquisition thereof over the amount invested in such Subsidiary; and (h) the proceeds of any life insurance policy; and (i) any reversal of any contingency reserve, except to the extent that provision for such contingency reserve shall be made from income arising during such period.
Appears in 1 contract
Samples: Credit Agreement (Star Buffet Inc)
Consolidated Net Income. For any fiscal period, (i) the consolidated net income aggregate Net Income of the Parent Borrower and its Restricted Subsidiaries for such period, as on a consolidated basis, and otherwise determined in accordance with GAAP; provided, except that however, that, without duplication: ____________ 1 This section to track language agreed to in no event shall such consolidated net income include: the Credit Agreement
(aA) any extraordinary after-tax effect of extraordinary, non-recurring or nonrecurring unusual gains; , charges, costs, losses, income or expenses (bless all fees and expenses relating thereto) or expenses (including expenses relating to (i) severance and relocation costs, or (ii) any rebranding or corporate name change) shall be excluded, ____________
(B) the Net Income for such period shall not include the cumulative effect of a change in accounting principles during such period, ____________
(C) any after-tax effect of income (loss) from disposed, abandoned or discontinued operations and any net income after-tax gains or losses on disposal of disposed, abandoned or discontinued operations shall be excluded, ____________
(D) any after-tax effect of gains or losses (less all fees and expenses relating thereto) attributable to asset dispositions other than in the ordinary course of business, as determined in good faith by the Borrower shall be excluded, ____________
(E) the Net Income for such period of any Subsidiary during such period Person that is not a Subsidiary, or is an Unrestricted Subsidiary, or that is accounted for by the equity method of accounting, shall be excluded; provided, that Consolidated Net Income of the Borrower shall be increased by the amount of dividends or distributions or other payments that are actually paid in cash (or to the extent that converted into cash or Cash Equivalents) to the Borrower or a Restricted Subsidiary in respect of such period, ____________
(F) Solely for the purposes of determining the amount available for Restricted Payments and Permitted Investments under the Available Amount, the Net Income for such period of any Restricted Subsidiary (other than any Guarantor) shall be excluded if the declaration or payment of dividends or similar distributions by such that Restricted Subsidiary of such income its Net Income is not at the date of determination wholly permitted without any prior governmental approval (which has not been obtained) or, directly or indirectly, by the operation of the terms of its organizational documents charter or any agreement, instrument instrument, judgment, decree, order, statute, rule, or law governmental regulation applicable to that Restricted Subsidiary or its stockholders, unless such restriction with respect to the payment of dividends or similar distributions has been legally waived; provided, that Consolidated Net Income of the Borrower will be increased by the amount of dividends or other distributions or other payments actually paid in cash (or to the extent converted into cash or Cash Equivalents) to the Borrower or a Restricted Subsidiary thereof in respect of such period, to the extent not already included therein, ____________
(G) any after-tax effect of income (loss) from the early extinguishment of Indebtedness or Hedging Obligations or other derivative instruments shall be excluded, ____________ (H) any royalties incurred during such period in connection with the Transaction and any fees and expenses incurred during such period, except that Parent’s equity or any amortization thereof for such period, in connection with the Transactions and any net loss acquisition, Investment, Disposition, issuance or repayment of Indebtedness, issuance of Equity Interests, refinancing transaction or amendment or modification of any debt instrument (in each case, including any such transaction consummated prior to the Closing Date and any such transaction undertaken but not completed) and any charges or non-recurring merger costs incurred during such period as a result of any such Subsidiary for such period transaction shall be included excluded, (I) to the extent covered by insurance and actually reimbursed, or, so long as the Issuer has made a determination that there exists reasonable evidence that such amount will in determining Consolidated Net Income; fact be reimbursed by the insurer and only to the extent that such amount is in fact reimbursed within 365 days of the date of such determination (c) any income (or loss) for such period of any Person if such Person is not with a Subsidiary of Parent or its Subsidiaries, except that Parent’s or its Subsidiaries equity deduction in the net income of applicable future period for any such Person for such period shall be included in Consolidated Net Income up amount so excluded to the aggregate amount of cash actually distributed by extent not so reimbursed within such Person during such Period to Parent 365 day period), expenses, charges or its Subsidiaries as a dividend or other distribution (and in the case of a dividend or other distribution to a Subsidiary, such Subsidiary is not precluded from further distributing such amount to Parent as described in clause (b) of this proviso); (d) any gain or loss arising from any write-up of assets or “gain-on-sale” accounting (including without limitation losses with respect to sales to a Special Purpose Subsidiary), except to the extent inclusion thereof liability or casualty events or business interruption shall be approved in writing by the Agent; excluded, (e) earnings of any Subsidiary accrued prior to the date it became a Subsidiary; (fJ) any non-cash compensation expense realized from employee benefit plans or other post-employment benefit plans, grants of stock based compensation income appreciation or expense related similar rights, stock options or other rights to restricted stock officers, directors and employees of such Person or stock options; any of its Restricted Subsidiaries shall be excluded, (gK) any deferred impairment charge or other credit representing any excess asset write-off, in each case, pursuant to GAAP and the amortization of the equity of any Subsidiary at the date of acquisition thereof over the amount invested in such Subsidiary; (h) the proceeds of any life insurance policy; and (i) any reversal of any contingency reserve, except intangibles arising pursuant to the extent that provision for such contingency reserve GAAP shall be made from income arising during such period.excluded, and ____________
Appears in 1 contract
Consolidated Net Income. For any fiscal period, (i) the consolidated net income aggregate Net Income of the Parent Borrower and its Restricted Subsidiaries for such period, as on a consolidated basis, and otherwise determined in accordance with GAAP; provided, except that in no event shall such consolidated net income include: however, that, without duplication:
(aA) any extraordinary after-tax effect of extraordinary, non-recurring or nonrecurring gains; unusual gains or losses (bless all fees and expenses relating thereto) or expenses (including expenses relating to (i) severance and relocation costs, (ii) any rebranding or corporate name change or (iii) uninsured storm or other weather-related damage, in excess of $5 million for any single weather event) shall be excluded, 1 provided that for purposes of determining the Consolidated Net Secured Leverage Ratio in connection with the incurrence of any Incremental Facilities incurred pursuant to Section 2.14 of the Credit Agreement or any Permitted Debt Offerings incurred pursuant to Section 7.02(b)(20) of the Credit Agreement, the cash proceeds of such Incremental Facilities and/or Permitted Debt Offering shall not be deemed to be included on the consolidated balance sheet of the Borrower and its Restricted Subsidiaries.
(B) the Net Income for such period shall not include the cumulative effect of a change in accounting principles during such period,
(C) any after-tax effect of income (loss) from disposed or discontinued operations and any net income after-tax gains or losses on disposal of disposed, abandoned or discontinued operations shall be excluded,
(D) any after-tax effect of gains or losses (less all fees and expenses relating thereto) attributable to asset dispositions other than in the ordinary course of business, as determined in good faith by the Borrower shall be excluded,
(E) the Net Income for such period of any Subsidiary during such period Person that is not a Subsidiary, or is an Unrestricted Subsidiary, or that is accounted for by the equity method of accounting, shall be excluded; provided, that Consolidated Net Income of the Borrower shall be increased by the amount of dividends or distributions or other payments that are actually paid in cash (or to the extent that converted into cash or Cash Equivalents) to the Borrower or a Restricted Subsidiary in respect of such period,
(F) the Net Income for such period of any Restricted Subsidiary (other than any Guarantor) shall be excluded if the declaration or payment of dividends or similar distributions by such that Restricted Subsidiary of such income its Net Income is not at the date of determination wholly permitted without any prior governmental approval (which has not been obtained) or, directly or indirectly, by the operation of the terms of its organizational documents charter or any agreement, instrument instrument, judgment, decree, order, statute, rule, or law governmental regulation applicable to that Restricted Subsidiary or its stockholders, unless such restriction with respect to the payment of dividends or similar distributions has been legally waived; provided, that Consolidated Net Income of the Borrower will be increased by the amount of dividends or other distributions or other payments actually paid in cash (or to the extent converted into cash or Cash Equivalents) to the Borrower or a Restricted Subsidiary thereof in respect of such period, to the extent not already included therein,
(G) any after-tax effect of income (loss) from the early extinguishment of Indebtedness or Hedging Obligations or other derivative instruments shall be excluded, and
(H) any fees and expenses incurred during such period, except that Parent’s equity or any amortization thereof for such period, in connection with the Transactions and any net loss Acquisition, Investment, Disposition, issuance or repayment of Indebtedness, issuance of Equity Interests, refinancing transaction or amendment or modification of any debt instrument (in each case, including any such transaction consummated prior to the Closing Date and any such transaction undertaken but not completed) and any charges or non-recurring merger costs incurred during such period as a result of any such Subsidiary for such period transaction shall be included in determining Consolidated Net Income; (c) any income (or loss) for such period of any Person if such Person is not a Subsidiary of Parent or its Subsidiaries, except that Parent’s or its Subsidiaries equity in the net income of any such Person for such period shall be included in Consolidated Net Income up to the aggregate amount of cash actually distributed by such Person during such Period to Parent or its Subsidiaries as a dividend or other distribution (and in the case of a dividend or other distribution to a Subsidiary, such Subsidiary is not precluded from further distributing such amount to Parent as described in clause (b) of this proviso); (d) any gain or loss arising from any write-up of assets or “gain-on-sale” accounting (including without limitation with respect to sales to a Special Purpose Subsidiary), except to the extent inclusion thereof shall be approved in writing by the Agent; (e) earnings of any Subsidiary accrued prior to the date it became a Subsidiary; (f) any non-cash stock based compensation income or expense related to restricted stock or stock options; (g) any deferred or other credit representing any excess of the equity of any Subsidiary at the date of acquisition thereof over the amount invested in such Subsidiary; (h) the proceeds of any life insurance policy; and (i) any reversal of any contingency reserve, except to the extent that provision for such contingency reserve shall be made from income arising during such period.excluded,
Appears in 1 contract