Less. Unrestricted cash and Cash Equivalents of any Loan Party (other than any Net Cash Proceeds from the issuance by Holdings of any Permitted Cure Securities, or cash common equity contributions received by Holdings pursuant to Section 8.04 of the Credit Agreement) with respect to which Administrative Agent has a perfected Lien, not to exceed $10,000,000 in the aggregate; provided, that notwithstanding the foregoing, until the expiration of the time period permitted under Section 6.14 of the Credit Agreement, such cash and Cash Equivalents shall be deducted for purposes of calculating Consolidated Total Net Funded Debt regardless of whether Administrative Agent has a perfected Lien on such cash and Cash Equivalents Consolidated Total Net Funded Debt as of the last day of the Measurement Period $ Adjusted Consolidated EBITDA for the Measurement Period is defined as follows1: Consolidated net income (or loss) for the Measurement Period of Holdings, the Borrowers, and their Subsidiaries, but excluding: (a) the income (or loss) of any Person that is not a Subsidiary, provided that consolidated net income shall be increased by the amount of dividends or distributions or other payments that are actually paid in cash to a Borrower or Subsidiary thereof from a Person that is not a Subsidiary in respect of such period and (b) except as otherwise provided below, the income (or loss) of any Person accrued prior to the date it became a Subsidiary of a Borrower or is merged into or consolidated with Borrower or a Subsidiary of a Borrower; provided, extraordinary, non-recurring or unusual gains, losses, charges or expenses shall be excluded from the calculation of consolidated net income (or loss) (it being understood, for the avoidance of doubt, that items that are subject to a cap in other areas of the calculation of Adjusted Consolidated EBITDA shall not be permitted to be added-back on the basis of being “unusual” or “non-recurring”) $ 1 To include Acquired EBITDA and exclude Disposed EBITDA per the paragraph on page 10 of this certificate. Plus (without duplication): Any provision for taxes based on income, profits or capital, including but not limited to federal, provincial, state, franchise and similar taxes and foreign withholding taxes of such Person paid or accrued during such period (including penalties, interest, costs and expenses related to such taxes or arising from any tax examinations) deducted in the determination of consolidated net income for the Measurement Period Interest expense (including but not limited to (i) net payments, if any, pursuant to interest rate Swap Contracts entered into for the purpose of hedging interest rate risk, (ii) bank fees, (iii) costs of surety bonds in connection with financing activities, and (iv) fees, charges, commissions, and discounts owed with respect to letters of credit or bankers acceptances) (less, interest income) deducted (or included) in the determination of consolidated net income for the Measurement Period Amortization and depreciation (including but not limited to the amortization of deferred financing fees or costs and the amortization of original issue discount resulting from the issuance of Indebtedness at less than par and, to the extent a synthetic or other similar financing lease is Indebtedness, rental payments in connection with such leases that are expensed) deducted in the determination of consolidated net income for the Measurement Period Losses (less gains) from asset Dispositions (other than asset Dispositions in the Ordinary Course of Business) included in the determination of consolidated net income for the Measurement Period Non-cash expenses, charges or losses (less non-cash gains or income), including any write-offs or write-downs, including impairment charges, deducted (or included) in the determination of consolidated net income for the Measurement Period; provided that if any such amount represents an accrual or reserve for a potential cash item in any future period, the cash payment in respect thereof that is paid in a subsequent Measurement Period shall be deducted from Adjusted Consolidated EBITDA to such extent in such subsequent Measurement Period Expenses and fees deducted in the determination of consolidated net income and incurred during the Measurement Period to consummate the Transaction, whether occurring before or within 180 days after the Closing Date or subsequently required to account for the Transaction from a GAAP perspective and in accordance with GAAP Expenses and fees (including expenses and fees paid to Administrative Agent and Lenders and the lenders under the Subordinated Indebtedness Documents and any other Indebtedness) deducted in the determination of consolidated net income and incurred during the Measurement Period and after the Closing Date in connection with the consummation or administration of the Loan Documents and the Subordinated Indebtedness Documents or the documents governing such other Indebtedness (including in connection with any actual or proposed amendment, supplement, waiver or other modification to the Loan Documents or Subordinated Indebtedness Documents or any other Indebtedness, whether or not consummated, including, for the avoidance of doubt, the First Amendment to Credit Agreement and the Second Amendment to Subordinated Loan Agreement) Fees and expenses incurred under the Management Agreement, and fees, expenses and indemnifications of directors, in each case permitted under the Credit Agreement and deducted in the determination of consolidated net income during the Measurement Period Expenses deducted in the determination of consolidated net income during the Measurement Period and covered by indemnification or other reimbursement provisions, or purchase price adjustments in connection with any Permitted Acquisition or other permitted Investment (to the extent deducted from the determination of consolidated net income during the Measurement Period), in each case to the extent actually received in cash during such Measurement Period, or to the extent that Borrower Agent reasonably expects a payment in respect of the applicable indemnification or other reimbursement provision, or purchase price adjustment will be received in cash within 180 days after the date such expense is incurred (with a deduction in the applicable future period for any amount so added back to the extent not actually paid, indemnified or reimbursed in a subsequent period and added back hereto in a prior period, and such amount shall not be permitted to be added back for such subsequent period) Expenses and fees deducted in the determination of consolidated net income during the Measurement Period and which are incurred in connection with the consummation (or attempted or proposed or anticipated consummation) of any Permitted Acquisitions or any Acquisitions which would reasonably be expected to have (if they had been consummated) satisfied the requirements of the defined term “Permitted Acquisition” but for the fact they are not consummated; provided that the add-back for all amounts attributable to all such non-consummated transactions shall not exceed $1,000,000 (or such higher amount reasonably acceptable to Administrative Agent) in any Fiscal Year Expenses and fees deducted in the determination of consolidated net income during the Measurement Period and which are incurred in connection with any proposed or actual issuance of debt or equity, restricted payment, Investment permitted under Section 7.03(b) or (l) of the Credit Agreement or asset Dispositions (other than asset Dispositions in the Ordinary Course of Business); provided, that the add-back for all amounts attributable to all such non-consummated transactions shall not exceed $1,000,000 (or such higher amount reasonably acceptable to Administrative Agent) in any Fiscal Year Without duplication of any other add-back set forth herein, losses, charges or expenses deducted in the determination of consolidated net income during the Measurement Period, but for which insurance or indemnity recovery is actually received in cash during the Measurement Period or to the extent that Borrower Agent reasonably expects such insurance or indemnity recovery will be received in cash within 180 days after the date such loss, charge or expense is incurred (with a deduction in the applicable future period for any amount so added back to the extent not actually indemnified or recovered in a subsequent period and added back hereto in a prior period, and such amount shall not be permitted to be added back for such subsequent period) Without duplication of any other add-back set forth herein, expenses, charges or losses deducted in the determination of consolidated net income during the Measurement Period and reimbursed by third parties to the extent such reimbursements are actually received in cash during the Measurement Period or to the extent that Borrower Agent reasonably expects such reimbursement will be received in cash within 180 days after the date such loss, charge or expense is incurred (with a deduction in the applicable future period for any amount so added back to the extent not actually reimbursed in a subsequent period and added back hereto in a prior period, and such amount shall not be permitted to be added back for such subsequent period) Non-cash exchange or translation losses (less non-cash gains) deducted (or included) in the determination of consolidated net income during the Measurement Period and arising from foreign currency hedging transactions or currency fluctuations Non-cash deductions or charges (less non-cash gains or positive adjustments, excluding any non-cash gains to the extent they represent the reversal of an accrual or reserve for a potential cash item that reduced Adjusted Consolidated EBITDA in any prior Measurement Period and excluding any non-cash gains with respect to cash actually received in a prior period so long as such cash did not increase Adjusted Consolidated EBITDA in such prior period) to net income attributable to purchase accounting adjustments made in accordance with GAAP the amount of any earn out or other similar deferred purchase price obligation (other than obligations constituting salary payments pursuant to ordinary course employment agreements and salary bonuses payable thereunder) which was reserved or paid during such Measurement Period and deducted in the calculation of consolidated net income for such Measurement Period, to the extent such obligations and, if paid, the payment thereof are permitted under the Credit Agreement
Appears in 1 contract
Less. Unrestricted cash and Cash Equivalents of any Loan Party (other than any Net Cash Proceeds from the issuance by Holdings of any Permitted Cure Securities, or cash common equity contributions received by Holdings pursuant to Section 8.04 of the Second Lien Credit Agreement) with respect to which Administrative Collateral Agent has a perfected Lien, not to exceed $10,000,000 in the aggregate; provided, that notwithstanding the foregoing, until the expiration of the time period permitted under Section 6.14 of the Second Lien Credit Agreement, such cash and Cash Equivalents shall be deducted for purposes of calculating Consolidated Total Net Funded Debt regardless of whether Administrative Collateral Agent has a perfected Lien on such cash and Cash Equivalents Consolidated Total Net Funded Debt as of the last day of the Measurement Period $ Adjusted Consolidated EBITDA for the Measurement Period is defined as follows1: Consolidated net income (or loss) for the Measurement Period of Holdings, the Borrowers, and their Subsidiaries, but excluding: (a) the income (or loss) of any Person that is not a Subsidiary, provided that consolidated net income shall be increased by the amount of dividends or distributions or other payments that are actually paid in cash to a Borrower or Subsidiary thereof from a Person that is not a Subsidiary in respect of such period and (b) except as otherwise provided below, the income (or loss) of any Person accrued prior to the date it became a Subsidiary of a Borrower or is merged into or consolidated with Borrower or a Subsidiary of a Borrower; provided, extraordinary, non-recurring or unusual gains, losses, charges or expenses shall be excluded from the calculation of consolidated net income (or loss) (it being understood, for the avoidance of doubt, that items that are subject to a cap in other areas of the calculation of Adjusted Consolidated EBITDA shall not be permitted to be added-back on the basis of being “unusual” or “non-recurring”) $ 1 To include Acquired EBITDA and exclude Disposed EBITDA per the paragraph on page 10 of this certificate. Plus (without duplication): Any provision for taxes based on income, profits or capital, including but not limited to federal, provincial, state, franchise and similar taxes and foreign withholding taxes of such Person paid or accrued during such period (including penalties, interest, costs and expenses related to such taxes or arising from any tax examinations) deducted in the determination of consolidated net income for the Measurement Period Interest expense (including but not limited to (i) net payments, if any, pursuant to interest rate Swap Contracts entered into for the purpose of hedging interest rate risk, (ii) bank fees, (iii) costs of surety bonds in connection with financing activities, and (iv) fees, charges, commissions, and discounts owed with respect to letters of credit or bankers acceptances) (less, interest income) deducted (or included) in the determination of consolidated net income for the Measurement Period Amortization and depreciation (including but not limited to the amortization of deferred financing fees or costs and the amortization of original issue discount resulting from the issuance of Indebtedness at less than par and, to the extent a synthetic or other similar financing lease is Indebtedness, rental payments in connection with such leases that are expensed) deducted in the determination of consolidated net income for the Measurement Period Losses (less gains) from asset Dispositions (other than asset Dispositions in the Ordinary Course of Business) included in the determination of consolidated net income for the Measurement Period Non-cash expenses, charges or losses (less non-cash gains or income), including any write-offs or write-downs, including impairment charges, deducted (or included) in the determination of consolidated net income for the Measurement Period; provided that if any such amount represents an accrual or reserve for a potential cash item in any future period, the cash payment in respect thereof that is paid in a subsequent Measurement Period shall be deducted from Adjusted Consolidated EBITDA to such extent in such subsequent Measurement Period Expenses and fees deducted in the determination of consolidated net income and incurred during the Measurement Period to consummate the Transaction, whether occurring before or within 180 days after the Closing Date or subsequently required to account for the Transaction from a GAAP perspective and in accordance with GAAP Expenses and fees (including expenses and fees paid to Administrative Collateral Agent and Lenders and the lenders under the Subordinated Senior Indebtedness Documents and any other Indebtedness) deducted in the determination of consolidated net income and incurred during the Measurement Period and after the Closing Date in connection with the consummation or administration of the Loan Documents and the Subordinated Senior Indebtedness Documents or the documents governing such other Indebtedness (including in connection with any actual or proposed amendment, supplement, waiver or other modification to the Loan Documents or Subordinated Senior Indebtedness Documents or any other Indebtedness, whether or not consummated, including, for the avoidance of doubt, the First Amendment to Credit Agreement and the Second Amendment to Subordinated Loan Agreement) Fees and expenses incurred under the Management Agreement, and fees, expenses and indemnifications of directors, in each case permitted under the Second Lien Credit Agreement and deducted in the determination of consolidated net income during the Measurement Period Expenses deducted in the determination of consolidated net income during the Measurement Period and covered by indemnification or other reimbursement provisions, or purchase price adjustments in connection with any Permitted Acquisition or other permitted Investment (to the extent deducted from the determination of consolidated net income during the Measurement Period), in each case to the extent actually received in cash during such Measurement Period, or to the extent that Borrower Agent reasonably expects a payment in respect of the applicable indemnification or other reimbursement provision, or purchase price adjustment will be received in cash within 180 days after the date such expense is incurred (with a deduction in the applicable future period for any amount so added back to the extent not actually paid, indemnified or reimbursed in a subsequent period and added back hereto in a prior period, and such amount shall not be permitted to be added back for such subsequent period) Expenses and fees deducted in the determination of consolidated net income during the Measurement Period and which are incurred in connection with the consummation (or attempted or proposed or anticipated consummation) of any Permitted Acquisitions or any Acquisitions which would reasonably be expected to have (if they had been consummated) satisfied the requirements of the defined term “Permitted Acquisition” but for the fact they are not consummated; provided that the add-back for all amounts attributable to all such non-consummated transactions shall not exceed $1,000,000 (or such higher amount reasonably acceptable to Administrative Collateral Agent) in any Fiscal Year Expenses and fees deducted in the determination of consolidated net income during the Measurement Period and which are incurred in connection with any proposed or actual issuance of debt or equity, restricted payment, Investment permitted under Section 7.03(b) or (l) of the Second Lien Credit Agreement or asset Dispositions (other than asset Dispositions in the Ordinary Course of Business); provided, that the add-back for all amounts attributable to all such non-consummated transactions shall not exceed $1,000,000 (or such higher amount reasonably acceptable to Administrative Collateral Agent) in any Fiscal Year Without duplication of any other add-back set forth herein, losses, charges or expenses deducted in the determination of consolidated net income during the Measurement Period, but for which insurance or indemnity recovery is actually received in cash during the Measurement Period or to the extent that Borrower Agent reasonably expects such insurance or indemnity recovery will be received in cash within 180 days after the date such loss, charge or expense is incurred (with a deduction in the applicable future period for any amount so added back to the extent not actually indemnified or recovered in a subsequent period and added back hereto in a prior period, and such amount shall not be permitted to be added back for such subsequent period) Without duplication of any other add-back set forth herein, expenses, charges or losses deducted in the determination of consolidated net income during the Measurement Period and reimbursed by third parties to the extent such reimbursements are actually received in cash during the Measurement Period or to the extent that Borrower Agent reasonably expects such reimbursement will be received in cash within 180 days after the date such loss, charge or expense is incurred (with a deduction in the applicable future period for any amount so added back to the extent not actually reimbursed in a subsequent period and added back hereto in a prior period, and such amount shall not be permitted to be added back for such subsequent period) Non-cash exchange or translation losses (less non-cash gains) deducted (or included) in the determination of consolidated net income during the Measurement Period and arising from foreign currency hedging transactions or currency fluctuations Non-cash deductions or charges (less non-cash gains or positive adjustments, excluding any non-cash gains to the extent they represent the reversal of an accrual or reserve for a potential cash item that reduced Adjusted Consolidated EBITDA in any prior Measurement Period and excluding any non-cash gains with respect to cash actually received in a prior period so long as such cash did not increase Adjusted Consolidated EBITDA in such prior period) to net income attributable to purchase accounting adjustments made in accordance with GAAP the amount of any earn out or other similar deferred purchase price obligation (other than obligations constituting salary payments pursuant to ordinary course employment agreements and salary bonuses payable thereunder) which was reserved or paid during such Measurement Period and deducted in the calculation of consolidated net income for such Measurement Period, to the extent such obligations and, if paid, the payment thereof are permitted under the Second Lien Credit Agreement
Appears in 1 contract
Less. Unrestricted cash and Cash Equivalents Ineligible accounts as of the Calculation Date(1)
(1) No deduction in the gross amount of any Loan Party account shall be required to be duplicated pursuant to any subsection below notwithstanding that the facts or circumstances giving rise to such deduction require deduction under more than one subsection.
(i) Accounts that are not binding and valid obligations of the obligor in full force and effect $
(ii) Accounts that are not evidenced by an invoice which has been issued to the obligor (either by (A) electronic transmission, (B) deposit in the United States mail, properly addressed and with postage paid, or (C) deposit with a commercial courier service for delivery not later than the 2nd Business Day) $
(iii) Accounts that are not genuine as appearing on their face or as represented in the books and records of Borrower $
(iv) Accounts that are not free from claims regarding rescission, cancellation or avoidance, whether by operation of law or otherwise $
(v) Accounts that have been outstanding for more than ninety (90) days past the original invoice date thereof $
(vi) The aggregate amount of all concessions, offsets, deductions, contras, chargebacks or understandings with any obligor on any account that in any way could reasonably be expected to adversely affect the payment of such account $
(vii) Accounts that are not subject to a first- priority perfected Lien in favor of the Administrative Agent, on behalf of the Lenders, or are subject to any other Lien other than rights of vendors arising under PACA but only to the extent no amounts owed such vendors is past due $
(viii) The aggregate amount of all accounts payable and other amounts owed by Borrower to the obligor (and Affiliates of the obligor) on any account $
(ix) Accounts that are owed by an obligor that is (A) an Affiliate of any of the Credit Parties (other than any Net Cash Proceeds from the issuance by Holdings commodities trading subsidiaries of Xxxxxx Xxxxxxx), or (B) an employee of any Permitted Cure Securities, or cash common equity contributions received by Holdings pursuant to Section 8.04 of the Credit AgreementParties $
(x) with respect to which Administrative Agent has a perfected Lien, Accounts that did not to exceed $10,000,000 arise out of the sale of goods in the aggregateordinary course of business of Borrower $
(xi) Accounts that are payable by a delinquent obligor; provided, that notwithstanding the foregoing, until the expiration a Person is a “delinquent obligor” if more than fifty percent (50%) of the time period permitted under Section 6.14 aggregate amount of the Credit Agreementaccounts owed by such obligor and its Affiliates to Borrower have been outstanding for more than ninety (90) days past the original invoice date thereof $
(xii) Accounts that lack any or all consents, such cash and Cash Equivalents shall be deducted for purposes of calculating Consolidated Total Net Funded Debt regardless of whether Administrative Agent has a perfected Lien on such cash and Cash Equivalents Consolidated Total Net Funded Debt as of the last day of the Measurement Period $ Adjusted Consolidated EBITDA for the Measurement Period is defined as follows1: Consolidated net income (licenses, approvals or loss) for the Measurement Period of Holdingsauthorizations of, the Borrowersor registrations or declarations with, and their Subsidiaries, but excluding: (a) the income (or loss) of any Person that is not a Subsidiary, provided that consolidated net income shall be increased by the amount of dividends or distributions or other payments that are actually paid in cash to a Borrower or Subsidiary thereof from a Person that is not a Subsidiary in respect of such period and (b) except as otherwise provided below, the income (or loss) of any Person accrued prior to the date it became a Subsidiary of a Borrower or is merged into or consolidated with Borrower or a Subsidiary of a Borrower; provided, extraordinary, non-recurring or unusual gains, losses, charges or expenses shall be excluded from the calculation of consolidated net income (or loss) (it being understood, for the avoidance of doubt, that items that are subject to a cap in other areas of the calculation of Adjusted Consolidated EBITDA shall not be permitted Governmental Authority required to be added-back on the basis of being “unusual” obtained, effected or “non-recurring”) $ 1 To include Acquired EBITDA and exclude Disposed EBITDA per the paragraph on page 10 of this certificate. Plus (without duplication): Any provision for taxes based on income, profits or capital, including but not limited to federal, provincial, state, franchise and similar taxes and foreign withholding taxes of such Person paid or accrued during such period (including penalties, interest, costs and expenses related to such taxes or arising from any tax examinations) deducted in the determination of consolidated net income for the Measurement Period Interest expense (including but not limited to (i) net payments, if any, pursuant to interest rate Swap Contracts entered into for the purpose of hedging interest rate risk, (ii) bank fees, (iii) costs of surety bonds in connection with financing activities, and (iv) fees, charges, commissions, and discounts owed with respect to letters of credit or bankers acceptances) (less, interest income) deducted (or included) in the determination of consolidated net income for the Measurement Period Amortization and depreciation (including but not limited to the amortization of deferred financing fees or costs and the amortization of original issue discount resulting from the issuance of Indebtedness at less than par and, to the extent a synthetic or other similar financing lease is Indebtedness, rental payments in connection with such leases that are expensed) deducted in the determination of consolidated net income for the Measurement Period Losses (less gains) from asset Dispositions (other than asset Dispositions in the Ordinary Course of Business) included in the determination of consolidated net income for the Measurement Period Non-cash expenses, charges or losses (less non-cash gains or income), including any write-offs or write-downs, including impairment charges, deducted (or included) in the determination of consolidated net income for the Measurement Period; provided that if any such amount represents an accrual or reserve for a potential cash item in any future period, the cash payment in respect thereof that is paid in a subsequent Measurement Period shall be deducted from Adjusted Consolidated EBITDA to such extent in such subsequent Measurement Period Expenses and fees deducted in the determination of consolidated net income and incurred during the Measurement Period to consummate the Transaction, whether occurring before or within 180 days after the Closing Date or subsequently required to account for the Transaction from a GAAP perspective and in accordance with GAAP Expenses and fees (including expenses and fees paid to Administrative Agent and Lenders and the lenders under the Subordinated Indebtedness Documents and any other Indebtedness) deducted in the determination of consolidated net income and incurred during the Measurement Period and after the Closing Date given in connection with the consummation execution,delivery and performance of said account by each party obligated thereunder $
(xiii) Accounts that are owed by an obligor that is the subject of any bankruptcy or administration insolvency proceeding, has had a trustee or receiver appointed for all or a substantial part of the Loan Documents and the Subordinated Indebtedness Documents or the documents governing such other Indebtedness (including in connection with any actual or proposed amendmentits property, supplement, waiver or other modification to the Loan Documents or Subordinated Indebtedness Documents or any other Indebtedness, whether or not consummated, including, has made an assignment for the avoidance benefit of doubtcreditors, the First Amendment admitted its inability to Credit Agreement and the Second Amendment to Subordinated Loan Agreement) Fees and expenses incurred under the Management Agreement, and fees, expenses and indemnifications of directors, in each case permitted under the Credit Agreement and deducted in the determination of consolidated net income during the Measurement Period Expenses deducted in the determination of consolidated net income during the Measurement Period and covered by indemnification pay its debts as they mature or other reimbursement provisions, or purchase price adjustments in connection with any Permitted Acquisition or other permitted Investment (to the extent deducted from the determination of consolidated net income during the Measurement Period), in each case to the extent actually received in cash during such Measurement Period, or to the extent that Borrower Agent reasonably expects a payment in respect of the applicable indemnification or other reimbursement provision, or purchase price adjustment will be received in cash within 180 days after the date such expense is incurred (with a deduction in the applicable future period for any amount so added back to the extent not actually paid, indemnified or reimbursed in a subsequent period and added back hereto in a prior period, and such amount shall not be permitted to be added back for such subsequent period) Expenses and fees deducted in the determination of consolidated net income during the Measurement Period and which are incurred in connection with the consummation (or attempted or proposed or anticipated consummation) of any Permitted Acquisitions or any Acquisitions which would reasonably be expected to have (if they had been consummated) satisfied the requirements of the defined term “Permitted Acquisition” but for the fact they are not consummated; provided that the add-back for all amounts attributable to all such non-consummated transactions shall not exceed $1,000,000 (or such higher amount reasonably acceptable to Administrative Agent) in any Fiscal Year Expenses and fees deducted in the determination of consolidated net income during the Measurement Period and which are incurred in connection with any proposed or actual issuance of debt or equity, restricted payment, Investment permitted under Section 7.03(b) or (l) of the Credit Agreement or asset Dispositions (other than asset Dispositions in the Ordinary Course of Business); provided, that the add-back for all amounts attributable to all such non-consummated transactions shall not exceed $1,000,000 (or such higher amount reasonably acceptable to Administrative Agent) in any Fiscal Year Without duplication of any other add-back set forth herein, losses, charges or expenses deducted in the determination of consolidated net income during the Measurement Period, but for which insurance or indemnity recovery is actually received in cash during the Measurement Period or to the extent that Borrower Agent reasonably expects such insurance or indemnity recovery will be received in cash within 180 days after the date such loss, charge or expense is incurred (with a deduction in the applicable future period for any amount so added back to the extent not actually indemnified or recovered in a subsequent period and added back hereto in a prior period, and such amount shall not be permitted to be added back for such subsequent period) Without duplication of any other add-back set forth herein, expenses, charges or losses deducted in the determination of consolidated net income during the Measurement Period and reimbursed by third parties to the extent such reimbursements are actually received in cash during the Measurement Period or to the extent that Borrower Agent reasonably expects such reimbursement will be received in cash within 180 days after the date such loss, charge or expense is incurred (with a deduction in the applicable future period for any amount so added back to the extent not actually reimbursed in a subsequent period and added back hereto in a prior period, and such amount shall not be permitted to be added back for such subsequent period) Non-cash exchange or translation losses (less non-cash gains) deducted (or included) in the determination of consolidated net income during the Measurement Period and arising from foreign currency hedging transactions or currency fluctuations Non-cash deductions or charges (less non-cash gains or positive adjustments, excluding any non-cash gains to the extent they represent the reversal of an accrual or reserve for a potential cash item that reduced Adjusted Consolidated EBITDA in any prior Measurement Period and excluding any non-cash gains with respect to cash actually received in a prior period so long as such cash did not increase Adjusted Consolidated EBITDA in such prior period) to net income attributable to purchase accounting adjustments made in accordance with GAAP the amount of any earn out or other similar deferred purchase price obligation (other than obligations constituting salary payments pursuant to ordinary course employment agreements and salary bonuses payable thereunder) which was reserved or paid during such Measurement Period and deducted in the calculation of consolidated net income for such Measurement Periodsuspended its business, to the extent such obligations andaccounts are not secured by letters of credit assigned to the Administrative Agent and otherwise satisfactory to the Administrative Agent $
(xiv) Accounts that are owed by an obligor that is not a corporation, if paidpartnership, limited liability company or other entity incorporated or organized under the laws of a State of the United States of America, the payment thereof District of Columbia, or Canada to the extent such accounts are permitted under not (A) secured by letters of credit assigned to the Credit AgreementAdministrative Agent and otherwise satisfactory to the Administrative Agent or (B) covered by export/import credit insurance assigned tothe Administrative Agent and naming AdministrativeAgent as loss payee and otherwise satisfactory to the Administrative Agent $
(xv) Accounts that are owed by an obligor that is a state, commonwealth, federal, foreign, territorial, or othercourt or governmental department, commission,board, bureau, agency orinstrumentality $
(xvi) Accounts for which the goods sold that resulted in the creation of the account have not been shipped or delivered to the obligor on a true sale basis on open account, but rather on consignment, on approval, on a “sale or return” basis, or on a “xxxx and hold” or “pre-sale” basis or subject to any other repurchase or return agreement $
(xvii) Accounts for which a material part of goods sold which resulted in the creation of such account have been returned, rejected, lost or damaged $
(xviii) Accounts that are evidenced by chattel paper or an instrument of any kind $
(xix) Accounts with respect to which each of the representations and warranties set forth in the Security Instruments is not true and correct $
(xx) Accounts that are payable other than in cash or that are “exchange accounts” $
(xxi) Accounts owed by obligors that the Administrative Agent has notified the Borrower that, in its sole but reasonable judgment, it is dissatisfied with the credit worthiness of $
(xxii) If any otherwise Eligible Account, when added to all other accounts that are obligations of the same obligor and its Affiliates, results in a total sum that exceeds, in the case of any other obligor, 20%, of the total balance then due on all Eligible Accounts (without giving effect to any reduction in Eligible Accounts pursuant to this proviso), the amount of said account in excess of such percentage of such total balance then due $
(xxiii) Other ineligible accounts pursuant to such standards of eligibility as the Administrative Agent shall establish from time to time in its sole but reasonable discretion $
Appears in 1 contract
Samples: Credit Agreement (Aventine Renewable Energy Holdings Inc)
Less. Unrestricted cash and Cash Equivalents of any Loan Party (other than any Net Cash Proceeds from the issuance by Holdings of any Permitted Cure Securities, or cash common equity contributions received by Holdings pursuant to Section 8.04 of the Second Lien Credit Agreement) with respect to which Administrative Collateral Agent has a perfected Lien, not to exceed $10,000,000 in the aggregate; provided, that notwithstanding the foregoing, until the expiration of the time period permitted under Section 6.14 of the Second Lien Credit Agreement, such cash and Cash Equivalents shall be deducted for purposes of calculating Consolidated Total Net Funded Debt regardless of whether Administrative Collateral Agent has a perfected Lien on such cash and Cash Equivalents Consolidated Total Net Funded Debt as of the last day of the Measurement Period $ Adjusted Consolidated EBITDA for the Measurement Period is defined as follows1: Consolidated net income (or loss) for the Measurement Period of Holdings, the Borrowers, and their Subsidiaries, but excluding: (a) the income (or loss) of any Person that is not a Subsidiary, provided that consolidated net income shall be increased by the amount of dividends or distributions or other payments that are actually paid in cash to a Borrower or Subsidiary thereof from a Person that is not a Subsidiary in respect of such period and (b) except as otherwise provided below, the income (or loss) of any Person accrued prior to the date it became a Subsidiary of a Borrower or is merged into or consolidated with Borrower or a Subsidiary of a Borrower; provided, extraordinary, non-recurring or unusual gains, losses, charges or expenses shall be excluded from the calculation of consolidated net income (or loss) (it being understood, for the avoidance of doubt, that items that are subject to a cap in other areas of the calculation of Adjusted Consolidated EBITDA shall not be permitted to be added-back on the basis of being “unusual” or “non-recurring”) $ 1 To include Acquired EBITDA and exclude Disposed EBITDA per the paragraph on page 10 of this certificate. Plus (without duplication): Any provision for taxes based on income, profits or capital, including but not limited to federal, provincial, state, franchise and similar taxes and foreign withholding taxes of such Person paid or accrued during such period (including penalties, interest, costs and expenses related to such taxes or arising from any tax examinations) deducted in the determination of consolidated net income for the Measurement Period Interest expense (including but not limited to (i) net payments, if any, pursuant to interest rate Swap Contracts entered into for the purpose of hedging interest rate risk, (ii) bank fees, (iii) costs of surety bonds in connection with financing activities, and (iv) fees, charges, commissions, and discounts owed with respect to letters of credit or bankers acceptances) (less, interest income) deducted (or included) in the determination of consolidated net income for the Measurement Period Amortization and depreciation (including but not limited to the amortization of deferred financing fees or costs and the amortization of original issue discount resulting from the issuance of Indebtedness at less than par and, to the extent a synthetic or other similar financing lease is Indebtedness, rental payments in connection with such leases that are expensed) deducted in the determination of consolidated net income for the Measurement Period Losses (less gains) from asset Dispositions (other than asset Dispositions in the Ordinary Course of Business) included in the determination of consolidated net income for the Measurement Period Non-cash expenses, charges or losses (less non-cash gains or income), including any write-offs or write-downs, including impairment charges, deducted (or included) in the determination of consolidated net income for the Measurement Period; provided that if any such amount represents an accrual or reserve for a potential cash item in any future period, the cash payment in respect thereof that is paid in a subsequent Measurement Period shall be deducted from Adjusted Consolidated EBITDA to such extent in such subsequent Measurement Period Expenses and fees deducted in the determination of consolidated net income and incurred during the Measurement Period to consummate the Transaction, whether occurring before or within 180 days after the Closing Date or subsequently required to account for the Transaction from a GAAP perspective and in accordance with GAAP Expenses and fees (including expenses and fees paid to Administrative Collateral Agent and Lenders and the lenders under the Subordinated Senior Indebtedness Documents and any other Indebtedness) deducted in the determination of consolidated net income and incurred during the Measurement Period and after the Closing Date in connection with the consummation or administration of the Loan Documents and the Subordinated Senior Indebtedness Documents or the documents governing such other Indebtedness (including in connection with any actual or proposed amendment, supplement, waiver or other modification to the Loan Documents or Subordinated Senior Indebtedness Documents or any other Indebtedness, whether or not consummated, including, for the avoidance of doubt, the First Second Amendment to Second Lien Credit Agreement and the Second First Amendment to Subordinated Senior Loan Agreement) Fees and expenses incurred under the Management Agreement, and fees, expenses and indemnifications of directors, in each case permitted under the Second Lien Credit Agreement and deducted in the determination of consolidated net income during the Measurement Period Expenses deducted in the determination of consolidated net income during the Measurement Period and covered by indemnification or other reimbursement provisions, or purchase price adjustments in connection with any Permitted Acquisition or other permitted Investment (to the extent deducted from the determination of consolidated net income during the Measurement Period), in each case to the extent actually received in cash during such Measurement Period, or to the extent that Borrower Agent reasonably expects a payment in respect of the applicable indemnification or other reimbursement provision, or purchase price adjustment will be received in cash within 180 days after the date such expense is incurred (with a deduction in the applicable future period for any amount so added back to the extent not actually paid, indemnified or reimbursed in a subsequent period and added back hereto in a prior period, and such amount shall not be permitted to be added back for such subsequent period) Expenses and fees deducted in the determination of consolidated net income during the Measurement Period and which are incurred in connection with the consummation (or attempted or proposed or anticipated consummation) of any Permitted Acquisitions or any Acquisitions which would reasonably be expected to have (if they had been consummated) satisfied the requirements of the defined term “Permitted Acquisition” but for the fact they are not consummated; provided that the add-back for all amounts attributable to all such non-consummated transactions shall not exceed $1,000,000 (or such higher amount reasonably acceptable to Administrative Collateral Agent) in any Fiscal Year Expenses and fees deducted in the determination of consolidated net income during the Measurement Period and which are incurred in connection with any proposed or actual issuance of debt or equity, restricted payment, Investment permitted under Section 7.03(b) or (l) of the Second Lien Credit Agreement or asset Dispositions (other than asset Dispositions in the Ordinary Course of Business); provided, that the add-back for all amounts attributable to all such non-consummated transactions shall not exceed $1,000,000 (or such higher amount reasonably acceptable to Administrative Collateral Agent) in any Fiscal Year Without duplication of any other add-back set forth herein, losses, charges or expenses deducted in the determination of consolidated net income during the Measurement Period, but for which insurance or indemnity recovery is actually received in cash during the Measurement Period or to the extent that Borrower Agent reasonably expects such insurance or indemnity recovery will be received in cash within 180 days after the date such loss, charge or expense is incurred (with a deduction in the applicable future period for any amount so added back to the extent not actually indemnified or recovered in a subsequent period and added back hereto in a prior period, and such amount shall not be permitted to be added back for such subsequent period) Without duplication of any other add-back set forth herein, expenses, charges or losses deducted in the determination of consolidated net income during the Measurement Period and reimbursed by third parties to the extent such reimbursements are actually received in cash during the Measurement Period or to the extent that Borrower Agent reasonably expects such reimbursement will be received in cash within 180 days after the date such loss, charge or expense is incurred (with a deduction in the applicable future period for any amount so added back to the extent not actually reimbursed in a subsequent period and added back hereto in a prior period, and such amount shall not be permitted to be added back for such subsequent period) Non-cash exchange or translation losses (less non-cash gains) deducted (or included) in the determination of consolidated net income during the Measurement Period and arising from foreign currency hedging transactions or currency fluctuations Non-cash deductions or charges (less non-cash gains or positive adjustments, excluding any non-cash gains to the extent they represent the reversal of an accrual or reserve for a potential cash item that reduced Adjusted Consolidated EBITDA in any prior Measurement Period and excluding any non-cash gains with respect to cash actually received in a prior period so long as such cash did not increase Adjusted Consolidated EBITDA in such prior period) to net income attributable to purchase accounting adjustments made in accordance with GAAP the amount of any earn out or other similar deferred purchase price obligation (other than obligations constituting salary payments pursuant to ordinary course employment agreements and salary bonuses payable thereunder) which was reserved or paid during such Measurement Period and deducted in the calculation of consolidated net income for such Measurement Period, to the extent such obligations and, if paid, the payment thereof are permitted under the Second Lien Credit Agreement
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Less. Unrestricted cash and Cash Equivalents of any Loan Party (other than any Net Cash Proceeds from the issuance by Holdings of any Permitted Cure Securities, or cash common equity contributions received by Holdings pursuant to Section 8.04 of the Credit Agreement) with respect to which Administrative Agent has a perfected Lien, not to exceed $10,000,000 in the aggregate; provided, that notwithstanding the foregoing, until the expiration of the time period permitted under Section 6.14 of the Credit Agreement, such cash and Cash Equivalents shall be deducted for purposes of calculating Consolidated Total Net Funded Debt regardless of whether Administrative Agent has a perfected Lien on such cash and Cash Equivalents Consolidated Total Net Funded Debt as of the last day of the Measurement Period $ Adjusted Consolidated EBITDA for the Measurement Period is defined as follows1: Consolidated net income (or loss) for the Measurement Period of Holdings, the Borrowers, and their Subsidiaries, but excluding: (a) the income (or loss) of any Person that is not a Subsidiary, provided that consolidated net income shall be increased by the amount of dividends or distributions or other payments that are actually paid in cash to a Borrower or Subsidiary thereof from a Person that is not a Subsidiary in respect of such period and (b) except as otherwise provided below, the income (or loss) of any Person accrued prior to the date it became a Subsidiary of a Borrower or is merged into or consolidated with Borrower or a Subsidiary of a Borrower; provided, extraordinary, non-recurring or unusual gains, losses, charges or expenses shall be excluded from the calculation of consolidated net income (or loss) (it being understood, for the avoidance of doubt, that items that are subject to a cap in other areas of the calculation of Adjusted Consolidated EBITDA shall not be permitted to be added-back on the basis of being “unusual” or “non-recurring”) $ 1 To include Acquired EBITDA and exclude Disposed EBITDA per the paragraph on page 10 of this certificate. Plus (without duplication): Any provision for taxes based on income, profits or capital, including but not limited to federal, provincial, state, franchise and similar taxes and foreign withholding taxes of such Person paid or accrued during such period (including penalties, interest, costs and expenses related to such taxes or arising from any tax examinations) deducted in the determination of consolidated net income for the Measurement Period Interest expense (including but not limited to (i) net payments, if any, pursuant to interest rate Swap Contracts entered into for the purpose of hedging interest rate risk, (ii) bank fees, (iii) costs of surety bonds in connection with financing activities, and (iv) fees, charges, commissions, and discounts owed with respect to letters of credit or bankers acceptances) (less, interest income) deducted (or included) in the determination of consolidated net income for the Measurement Period Amortization and depreciation (including but not limited to the amortization of deferred financing fees or costs and the amortization of original issue discount resulting from the issuance of Indebtedness at less than par and, to the extent a synthetic or other similar financing lease is Indebtedness, rental payments in connection with such leases that are expensed) deducted in the determination of consolidated net income for the Measurement Period Losses (less gains) from asset Dispositions (other than asset Dispositions in the Ordinary Course of Business) included in the determination of consolidated net income for the Measurement Period Non-cash expenses, charges or losses (less non-cash gains or income), including any write-offs or write-downs, including impairment charges, deducted (or included) in the determination of consolidated net income for the Measurement Period; provided that if any such amount represents an accrual or reserve for a potential cash item in any future period, the cash payment in respect thereof that is paid in a subsequent Measurement Period shall be deducted from Adjusted Consolidated EBITDA to such extent in such subsequent Measurement Period Expenses and fees deducted in the determination of consolidated net income and incurred during the Measurement Period to consummate the Transaction, whether occurring before or within 180 days after the Closing Date or subsequently required to account for the Transaction from a GAAP perspective and in accordance with GAAP Expenses and fees (including expenses and fees paid to Administrative Agent and Lenders and the lenders under the Subordinated Indebtedness Documents and any other Indebtedness) deducted in the determination of consolidated net income and incurred during the Measurement Period and after the Closing Date in connection with the consummation or administration of the Loan Documents and the Subordinated Indebtedness Documents or the documents governing such other Indebtedness (including in connection with any actual or proposed amendment, supplement, waiver or other modification to the Loan Documents or Subordinated Indebtedness Documents or any other Indebtedness, whether or not consummated, including, for the avoidance of doubt, the First Amendment to Credit Agreement and the Second Amendment to Subordinated Loan Agreement) Fees and expenses incurred under the Management Agreement, and fees, expenses and indemnifications of directors, in each case permitted under the Credit Agreement and deducted in the determination of consolidated net income during the Measurement Period Expenses deducted in the determination of consolidated net income during the Measurement Period and covered by indemnification or other reimbursement provisions, or purchase price adjustments in connection with any Permitted Acquisition or other permitted Investment (to the extent deducted from the determination of consolidated net income during the Measurement Period), in each case to the extent actually received in cash during such Measurement Period, or to the extent that Borrower Agent reasonably expects a payment in respect of the applicable indemnification or other reimbursement provision, or purchase price adjustment will be received in cash within 180 days after the date such expense is incurred (with a deduction in the applicable future period for any amount so added back to the extent not actually paid, indemnified or reimbursed in a subsequent period and added back hereto in a prior period, and such amount shall not be permitted to be added back for such subsequent period) Expenses and fees deducted in the determination of consolidated net income during the Measurement Period and which are incurred in connection with the consummation (or attempted or proposed or anticipated consummation) of any Permitted Acquisitions or any Acquisitions which would reasonably be expected to have (if they had been consummated) satisfied the requirements of the defined term “Permitted Acquisition” but for the fact they are not consummated; provided that the add-back for all amounts attributable to all such non-consummated transactions shall not exceed $1,000,000 (or such higher amount reasonably acceptable to Administrative Agent) in any Fiscal Year Expenses and fees deducted in the determination of consolidated net income during the Measurement Period and which are incurred in connection with any proposed or actual issuance of debt or equity, restricted payment, Investment permitted under Section 7.03(b) or (l) of the Credit Agreement or asset Dispositions (other than asset Dispositions in the Ordinary Course of Business); provided, that the add-back for all amounts attributable to all such non-consummated transactions shall not exceed $1,000,000 (or such higher amount reasonably acceptable to Administrative Agent) in any Fiscal Year Without duplication of any other add-back set forth herein, losses, charges or expenses deducted in the determination of consolidated net income during the Measurement Period, but for which insurance or indemnity recovery is actually received in cash during the Measurement Period or to the extent that Borrower Agent reasonably expects such insurance or indemnity recovery will be received in cash within 180 days after the date such loss, charge or expense is incurred (with a deduction in the applicable future period for any amount so added back to the extent not actually indemnified or recovered in a subsequent period and added back hereto in a prior period, and such amount shall not be permitted to be added back for such subsequent period) Without duplication of any other add-back set forth herein, expenses, charges or losses deducted in the determination of consolidated net income during the Measurement Period and reimbursed by third parties to the extent such reimbursements are actually received in cash during the Measurement Period or to the extent that Borrower Agent reasonably expects such reimbursement will be received in cash within 180 days after the date such loss, charge or expense is incurred (with a deduction in the applicable future period for any amount so added back to the extent not actually reimbursed in a subsequent period and added back hereto in a prior period, and such amount shall not be permitted to be added back for such subsequent period) Non-cash exchange or translation losses (less non-cash gains) deducted (or included) in the determination of consolidated net income during the Measurement Period and arising from foreign currency hedging transactions or currency fluctuations Non-cash deductions or charges (less non-cash gains or positive adjustments, excluding any non-cash gains to the extent they represent the reversal of an accrual or reserve for a potential cash item that reduced Adjusted Consolidated EBITDA in any prior Measurement Period and excluding any non-cash gains with respect to cash actually received in a prior period so long as such cash did not increase Adjusted Consolidated EBITDA in such prior period) to net income attributable to purchase accounting adjustments made in accordance with GAAP the amount of any earn out or other similar deferred purchase price obligation (other than obligations constituting salary payments pursuant to ordinary course employment agreements and salary bonuses payable thereunder) which was reserved or paid during such Measurement Period and deducted in the calculation of consolidated net income for such Measurement Period, to the extent such obligations and, if paid, the payment thereof are permitted under the Credit Agreement
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