Other Definitional and Interpretive Provisions. Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in any Notes, any other Loan Document or any certificate or other document made or delivered pursuant hereto. (a) As used herein and in any Notes and any other Loan Document, and any certificate or other document made or delivered pursuant hereto or thereto, accounting terms relating to Holdings and its Restricted Subsidiaries not defined in Subsection 1.1 and accounting terms partly defined in Subsection 1.1, to the extent not defined, shall have the respective meanings given to them under GAAP. (b) The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, Subsection, Schedule and Exhibit references are to this Agreement unless otherwise specified. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” (c) For purposes of determining any financial ratio or making any financial calculation for any fiscal quarter (or portion thereof) ending prior to the Closing Date, the components of such financial ratio or financial calculation shall be determined on a pro forma basis to give effect to the Transactions as if they had occurred at the beginning of such four-quarter period; and each Person that is a Restricted Subsidiary upon giving effect to the Transactions shall be deemed to be a Restricted Subsidiary for purposes of the components of such financial ratio or financial calculation as of the beginning of such four-quarter period. (d) Any financial ratios required to be satisfied in order for a specific action to be permitted under this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (rounding up if there is no nearest number). (e) Any references in this Agreement to “cash and/or Cash Equivalents,” “cash, Cash Equivalents and/or Temporary Cash Investments” or any similar combination of the foregoing shall be construed as not double counting cash or any other applicable amount which would otherwise be duplicated therein. (f) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms. (g) In connection with any action being taken in connection with a Limited Condition Acquisition, for purposes of determining compliance with any provision of this Agreement which requires that no Default, Event of Default or specified Event of Default, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall, at the option of Holdings, be deemed satisfied, so long as no Default, Event of Default or specified Event of Default, as applicable, exists on the date the definitive agreements for such Limited Condition Acquisition are entered into. For the avoidance of doubt, if Holdings has exercised its option under the first sentence of this clause (g), and any Default or Event of Default occurs following the date the definitive agreements for the applicable Limited Condition Acquisition were entered into and prior to the consummation of such Limited Condition Acquisition, any such Default or Event of Default shall be deemed to not have occurred or be continuing for purposes of determining whether any action being taken in connection with such Limited Condition Acquisition is permitted hereunder. (h) In connection with any action being taken in connection with a Limited Condition Acquisition, for purposes of: (i) determining compliance with any provision of this Agreement which requires the calculation of the Consolidated Coverage Ratio, the Consolidated Secured Leverage Ratio or the Consolidated Total Leverage Ratio; or (ii) testing baskets set forth in this Agreement (including baskets measured as a percentage of Consolidated Total Assets or Foreign Consolidated Total Assets); in each case, at the option of Holdings (Holdings’ election to exercise such option in connection with any Limited Condition Acquisition, an “LCA Election”), the date of determination of whether any such action is permitted hereunder, shall be deemed to be the date the definitive agreements for such Limited Condition Acquisition are entered into (the “LCA Test Date”), and if, after giving pro forma effect to the Limited Condition Acquisition and the other transactions to be entered into in connection therewith (including any Incurrence of Indebtedness and the use of proceeds thereof and acquisition of Consolidated EBITDA) as if they had occurred at the beginning of the most recent four consecutive fiscal quarters ending prior to the LCA Test Date for which consolidated financial statements of Holdings are available, Holdings could have taken such action on the relevant LCA Test Date in compliance with such ratio or basket, such ratio or basket shall be deemed to have been complied with. For the avoidance of doubt, if Holdings has made an LCA Election and any of the ratios or baskets for which compliance was determined or tested as of the LCA Test Date are exceeded as a result of fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDA or Consolidated Total Assets or Foreign Consolidated Total Assets of Holdings or the Person subject to such Limited Condition Acquisition, at or prior to the consummation of the relevant transaction or action, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations. If Holdings has made an LCA Election for any Limited Condition Acquisition, then in connection with any subsequent calculation of any ratio or basket availability with respect to the Incurrence of Indebtedness or Liens, or the making of Restricted Payments or Permitted Investments, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of Holdings or the designation of an Unrestricted Subsidiary on or following the relevant LCA Test Date and prior to the earlier of the date on which such Limited Condition Acquisition is consummated or the definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition, any such ratio or basket shall be calculated on a pro forma basis assuming such Limited Condition Acquisition and other transactions in connection therewith (including any Incurrence of Indebtedness and the use of proceeds thereof) have been consummated.
Appears in 4 contracts
Samples: Credit Agreement (Univar Inc.), Credit Agreement (Univar Inc.), Credit Agreement (Univar Inc.)
Other Definitional and Interpretive Provisions. Unless otherwise specified therein, all All terms defined in this Agreement shall have be equally applicable to both the singular and plural forms of the defined meanings when used in any Notesterms. Unless the context otherwise requires, any other Loan Document reference to any law, rule or regulation (including, without limitation, all references to any certificate Rule) or other document made or delivered pursuant hereto.
(a) As used herein and in any Notes and any other Loan Document, and any certificate or other document made or delivered pursuant hereto or thereto, accounting terms relating to Holdings and its Restricted Subsidiaries not defined in Subsection 1.1 and accounting terms partly defined in Subsection 1.1, agreement shall be construed as a reference to the extent not definedsame as it may from time to time be amended, shall have modified, supplemented or replaced. Unless the respective meanings given to them under GAAP.
(b) The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not context requires otherwise, any reference herein to any particular provision of this Agreement, Person shall be construed to include such Person’s successors and Section, Subsection, Schedule and Exhibit references are to this Agreement unless otherwise specifiedassigns. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.”
(c) For purposes ” Except as provided to the contrary herein, all accounting terms used herein shall be interpreted and all accounting determinations hereunder shall be made in accordance with GAAP. Notwithstanding any other provision contained herein, all computations of determining amounts and ratios referred to in Section 7.7 shall be made without giving effect to any financial ratio or making any financial calculation for any fiscal quarter election under Statement of Financial Accounting Standards 159 (or portion thereofany other Financial Accounting Standard having a similar result or effect) ending prior to value any Indebtedness or other liabilities of the Company at “fair value” as defined therein. Notwithstanding anything in this Agreement or any other Loan Document to the Closing contrary, all obligations of any Person that are or would be characterized as operating lease obligations in accordance with GAAP on the Amendment No. 1 Effective Date (whether or not such operating lease obligations were in effect on such date) shall continue to be (or shall be, in the case of any such obligations not in effect on the Amendment No. 1 Effective Date) accounted for as operating lease obligations (and not as Capitalized Lease Obligations) for all purposes under this Agreement and the other Loan Documents, regardless of any change in GAAP following the components of Amendment No. 1 Effective Date that would otherwise require such financial ratio obligations to be treated or financial calculation shall be determined recharacterized (on a pro forma prospective or retroactive basis to give effect to the Transactions or otherwise) as if they had occurred at the beginning of such four-quarter period; Capitalized Lease Obligations and each Person that is a Restricted Subsidiary upon without giving effect to the Transactions shall be deemed implementation of FASB ASU No. 2016-02, Leases (Topic 842). Any reference herein to be a Restricted Subsidiary for purposes of the components of such financial ratio merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or financial calculation as of the beginning of such four-quarter period.
(d) Any financial ratios required to be satisfied in order for a specific action to be permitted under this Agreement shall be calculated by dividing the appropriate component by the other componenttransfer, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (rounding up if there is no nearest number).
(e) Any references in this Agreement to “cash and/or Cash Equivalents,” “cash, Cash Equivalents and/or Temporary Cash Investments” or any similar combination of the foregoing shall be construed as not double counting cash or any other applicable amount which would otherwise be duplicated therein.
(f) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.
(g) In connection with any action being taken in connection with a Limited Condition Acquisition, for purposes of determining compliance with any provision of this Agreement which requires that no Default, Event of Default or specified Event of Default, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall, at the option of Holdings, be deemed satisfied, so long as no Default, Event of Default or specified Event of Default, as applicable, exists on the date the definitive agreements for such Limited Condition Acquisition are entered into. For the avoidance of doubt, if Holdings has exercised its option under the first sentence of this clause (g), and any Default or Event of Default occurs following the date the definitive agreements for the applicable Limited Condition Acquisition were entered into and prior to the consummation of such Limited Condition Acquisition, any such Default or Event of Default shall be deemed to not have occurred or be continuing for purposes of determining whether any action being taken in connection with such Limited Condition Acquisition is permitted hereunder.
(h) In connection with any action being taken in connection with a Limited Condition Acquisition, for purposes of:
(i) determining compliance with any provision of this Agreement which requires the calculation of the Consolidated Coverage Ratio, the Consolidated Secured Leverage Ratio or the Consolidated Total Leverage Ratio; or
(ii) testing baskets set forth in this Agreement (including baskets measured as a percentage of Consolidated Total Assets or Foreign Consolidated Total Assets); in each case, at the option of Holdings (Holdings’ election to exercise such option in connection with any Limited Condition Acquisition, an “LCA Election”), the date of determination of whether any such action is permitted hereunderterm, shall be deemed to be apply to a division of or by a limited liability company, or an allocation of assets to a series of a limited liability company (or the date the definitive agreements for unwinding of such Limited Condition Acquisition are entered into (the “LCA Test Date”a division or allocation), and if, after giving pro forma effect to the Limited Condition Acquisition and the other transactions to be entered into in connection therewith (including any Incurrence of Indebtedness and the use of proceeds thereof and acquisition of Consolidated EBITDA) as if they had occurred at the beginning it were a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, as applicable, to, of the most recent four consecutive fiscal quarters ending prior to the LCA Test Date for which consolidated financial statements or with a separate Person. Any division of Holdings are available, Holdings could have taken such action on the relevant LCA Test Date in compliance with such ratio or basket, such ratio or basket a limited liability company shall be deemed to have been complied with. For the avoidance of doubt, if Holdings has made an LCA Election constitute a separate Person hereunder (and any of the ratios or baskets for which compliance was determined or tested as of the LCA Test Date are exceeded as a result of fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDA or Consolidated Total Assets or Foreign Consolidated Total Assets of Holdings or the Person subject to such Limited Condition Acquisition, at or prior to the consummation of the relevant transaction or action, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations. If Holdings has made an LCA Election for any Limited Condition Acquisition, then in connection with any subsequent calculation each division of any ratio limited liability company that is a Subsidiary, joint venture or basket availability with respect to the Incurrence of Indebtedness any other like term shall also constitute such a Person or Liens, or the making of Restricted Payments or Permitted Investments, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of Holdings or the designation of an Unrestricted Subsidiary on or following the relevant LCA Test Date and prior to the earlier of the date on which such Limited Condition Acquisition is consummated or the definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition, any such ratio or basket shall be calculated on a pro forma basis assuming such Limited Condition Acquisition and other transactions in connection therewith (including any Incurrence of Indebtedness and the use of proceeds thereof) have been consummatedentity).
Appears in 4 contracts
Samples: Credit Agreement (Cme Group Inc.), Credit Agreement (Cme Group Inc.), Credit Agreement (Cme Group Inc.)
Other Definitional and Interpretive Provisions. Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in any Notes, any other Loan Document or any certificate or other document made or delivered pursuant hereto.
(a) As used herein and in any Notes and any other Loan Document, and any certificate or other document made or delivered pursuant hereto or thereto, accounting terms relating to Holdings the Parent Borrower and its Restricted Subsidiaries not defined in Subsection 1.1 and accounting terms partly defined in Subsection 1.1, to the extent not defined, shall have the respective meanings given to them under GAAP.
(b) The words “hereof,” ”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, Subsection, Schedule and Exhibit references are to this Agreement unless otherwise specified. The words “include,” ”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. Any reference herein to any Person shall be construed to include such Person’s successors and assigns permitted hereunder. Any reference herein to financial statements of the Parent Borrower shall be construed to include financial statements of the Parent Borrower or any Parent Entity whose financial statements satisfy the Parent Borrower’s reporting obligations under Subsection 7.1.”
(c) For purposes of determining any financial ratio or making any financial calculation for any fiscal quarter (or portion thereof) ending prior to the Closing Date, the components of such financial ratio or financial calculation shall be determined on a pro forma basis to give effect to the Transactions as if they had occurred at the beginning of such four-quarter period; and each Person that is a Restricted Subsidiary upon giving effect to the Transactions shall be deemed to be a Restricted Subsidiary for purposes of the components of such financial ratio or financial calculation as of the beginning of such four-quarter period.
(d) [Reserved].
(e) Any financial ratios required to be satisfied in order for a specific action to be permitted under this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (rounding up if there is no nearest number).
(ef) Any references in this Agreement to “cash and/or Cash Equivalents,” ”, “cash, Cash Equivalents and/or Temporary Cash Investments” or any similar combination of the foregoing shall be construed as not double counting cash or any other applicable amount which would otherwise be duplicated therein.
(fg) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.
(gh) In connection with any action being taken in connection with a Limited Condition AcquisitionTransaction, for purposes of determining compliance with any provision of this Agreement which requires that no Default, Event of Default or specified Default or Event of Default, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall, at the option of Holdingsthe Borrower Representative, be deemed satisfied, so long as no Default, Event of Default or specified Default or Event of Default, as applicable, exists on the date the (x) a definitive agreements agreement, notice or announcement, as applicable, for such Limited Condition Acquisition are Transaction is entered into, (y) in connection with an acquisition to which the United Kingdom City Code on Takeovers and Mergers (or any equivalent thereof under the laws, rules or regulations in any other applicable jurisdiction) applies, on which a “Rule 2.7 announcement” of a firm intention to make an offer in respect of a target of a Limited Condition Transaction is made (or the equivalent notice under such equivalent laws, rules or regulations in such other applicable jurisdiction) or (z) irrevocable notice of redemption, repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness, Disqualified Stock or Preferred Stock is given. For the avoidance of doubt, if Holdings the Borrower Representative has exercised its option under the first sentence of this clause (gh), and any Default, Event of Default or specified Default or Event of Default Default, as applicable, occurs following the date the (x) a definitive agreements agreement, notice or announcement, as applicable, for the applicable Limited Condition Acquisition were Transaction was entered into into, (y) in connection with an acquisition to which the United Kingdom City Code on Takeovers and Mergers (or any equivalent thereof under the laws, rules or regulations in any other applicable jurisdiction) applies, on which a “Rule 2.7 announcement” of a firm intention to make an offer in respect of a target of a Limited Condition Transaction is made (or the equivalent notice under such equivalent laws, rules or regulations in such other applicable jurisdiction) or (z) irrevocable notice of redemption, repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness, Disqualified Stock or Preferred Stock is given and prior to the consummation of such Limited Condition AcquisitionTransaction, any such Default, Event of Default or specified Default or Event of Default Default, as applicable, shall be deemed to not have occurred or be continuing for purposes of determining whether any action being taken in connection with such Limited Condition Acquisition Transaction is permitted hereunder.
(hi) In connection with any action being taken in connection with a Limited Condition AcquisitionTransaction, for purposes of:
(i) determining compliance with any provision of this Agreement which requires the calculation of the Consolidated Coverage Ratio, the Consolidated Secured First Lien Leverage Ratio or the Consolidated Total Leverage Ratio; orRatio or other financial measure;
(ii) testing baskets set forth in this Agreement (including baskets measured as a percentage of Consolidated Total Assets or Foreign Consolidated Total Assets); or
(iii) any other determination as to whether any such Limited Condition Transaction and any related transactions (including any financing thereof) complies with the covenants or agreements contained in this Agreement; in each case, at the option of Holdings the Borrower Representative (Holdings’ the Borrower Representative’s election to exercise such option in connection with any Limited Condition AcquisitionTransaction, an “LCA LCT Election”), the date of determination of whether any such action is permitted hereunder, shall be deemed to be the date the (x) a definitive agreements agreement, notice or announcement, as applicable, for such Limited Condition Acquisition are Transaction is entered into into, (y) in connection with an acquisition to which the United Kingdom City Code on Takeovers and Mergers (or any equivalent thereof under the laws, rules or regulations in any other applicable jurisdiction) applies, on which a “Rule 2.7 announcement” of a firm intention to make an offer in respect of a target of a Limited Condition Transaction is made (or the equivalent notice under such equivalent laws, rules or regulations in such other applicable jurisdiction) or (z) irrevocable notice of redemption, repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness, Disqualified Stock or Preferred Stock is given, as applicable (the “LCA LCT Test Date”), and if, after giving pro forma effect to the Limited Condition Acquisition Transaction and the other transactions to be entered into in connection therewith (including any Incurrence or Discharge of Indebtedness and Liens and the use of proceeds thereof and acquisition of Consolidated EBITDAthereof) as if they had occurred at the beginning of the most recent four consecutive fiscal quarters of the Parent Borrower ending prior to the LCA LCT Test Date for which consolidated financial statements of Holdings the Parent Borrower are available, Holdings such Borrower could have taken such action on the relevant LCA LCT Test Date in compliance with such ratio ratio, basket or basketamount, such ratio ratio, basket or basket amount shall be deemed to have been complied with. For the avoidance of doubt, if Holdings the Borrower Representative has made an LCA LCT Election and any of the ratios ratios, baskets or baskets amounts, for which compliance was determined or tested as of the LCA LCT Test Date are exceeded as a result of fluctuations in any such ratio ratio, basket or basketamount, including due to fluctuations in exchange rates or in Consolidated EBITDA or Consolidated Total Assets or Foreign Consolidated Total Assets of Holdings the Parent Borrower or the Person subject to such Limited Condition AcquisitionTransaction or any applicable currency exchange rate, at or prior to the consummation of the relevant transaction or action, such ratios, baskets or ratios amounts will not be deemed to have been exceeded as a result of such fluctuations. If Holdings the Borrower Representative has made an LCA LCT Election for any Limited Condition AcquisitionTransaction, then in connection with any subsequent calculation of any ratio ratio, basket or basket availability amount with respect to the Incurrence or Discharge of Indebtedness or Liens, or the making of Restricted Payments or Permitted InvestmentsPayments, Asset Dispositions, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of Holdings the Parent Borrower or the designation of an Unrestricted Subsidiary on or following the relevant LCA LCT Test Date and prior to the earlier of the date on which such Limited Condition Acquisition Transaction is consummated or the definitive agreement for such Limited Condition Acquisition Transaction (if an acquisition or investment) is terminated or expires without consummation of such Limited Condition AcquisitionTransaction, any such ratio ratio, basket or basket amount shall be calculated on a pro forma basis assuming such Limited Condition Acquisition Transaction and other transactions in connection therewith (including any Incurrence or Discharge of Indebtedness and Liens and the use of proceeds thereof) have been consummated.
(j) For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws) (collectively, a “Division”): if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized and acquired on the first date of its existence by the holders of its Capital Stock at such time.
Appears in 3 contracts
Samples: Credit Agreement (SiteOne Landscape Supply, Inc.), Credit Agreement (SiteOne Landscape Supply, Inc.), Credit Agreement (SiteOne Landscape Supply, Inc.)
Other Definitional and Interpretive Provisions. Unless otherwise specified therein, all (a) All terms defined in this Agreement Agreement, the Exhibits and Schedules hereto shall have the same defined meanings when used in any Notes, any other Loan Document or any certificate or other document made or delivered pursuant hereto.
(a) As used herein and in any Notes and any other Loan DocumentDocuments, and any certificate or other document made or delivered pursuant hereto or thereto, accounting terms relating to Holdings and its Restricted Subsidiaries not defined in Subsection 1.1 and accounting terms partly defined in Subsection 1.1, to unless the extent not defined, context shall have the respective meanings given to them under GAAPrequire otherwise.
(b) Except as otherwise expressly provided herein, all accounting terms not specifically defined or specified herein shall have the meanings generally attributed to such terms under GAAP, including applicable statements and interpretations issued by the Financial Accounting Standards Board and bulletins, opinions, interpretations and statements issued by the American Institute of Certified Public Accountants or its committees.
(c) All personal pronouns used in this Agreement, whether used in the masculine, feminine or neuter gender, shall include all other genders; the singular shall include the plural, and the plural shall include the singular.
(d) The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision provisions of this Agreement.
(e) The preamble hereto is part of this Agreement. Titles of Sections in this Agreement are for convenience only, do not constitute part of this Agreement and neither limit nor amplify the provisions of this Agreement, and Section, Subsection, Schedule and Exhibit references are to this Agreement unless otherwise specified. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.”
(c) For purposes of determining any financial ratio or making any financial calculation for any fiscal quarter (or portion thereof) ending prior to the Closing Date, the components of such financial ratio or financial calculation shall be determined on a pro forma basis to give effect to the Transactions as if they had occurred at the beginning of such four-quarter period; and each Person that is a Restricted Subsidiary upon giving effect to the Transactions shall be deemed to be a Restricted Subsidiary for purposes of the components of such financial ratio or financial calculation as of the beginning of such four-quarter period.
(d) Any financial ratios required to be satisfied in order for a specific action to be permitted under this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (rounding up if there is no nearest number).
(e) Any all references in this Agreement to “cash and/or Cash Equivalents,” “cashSections, Cash Equivalents and/or Temporary Cash Investments” Subsections, paragraphs, clauses, subclasses, Schedules or any similar combination Exhibits shall refer to the corresponding Section, Subsection, paragraph clause, subclause, Schedule or Exhibit attached to this Agreement, unless specific reference is made to the articles, sections or other subdivisions or divisions of the foregoing shall be construed as not double counting cash such Schedule or any other applicable amount which would otherwise be duplicated thereinExhibit to or in another document or instrument.
(f) The meanings given Each definition of a document in this Agreement shall include such document as amended, modified, supplemented, restated, renewed or extended from time to terms defined herein shall be equally applicable to both the singular and plural forms of such termstime.
(g) In connection with any action being taken Except where specifically restricted, reference to a party in connection with a Limited Condition Acquisition, for purposes of determining compliance with any provision of this Agreement which requires Loan Document includes that no Default, Event of Default party and its successors and assigns permitted hereunder or specified Event of Default, as applicable, has occurred, is continuing or would result from any under such action, as applicable, such condition shall, at the option of Holdings, be deemed satisfied, so long as no Default, Event of Default or specified Event of Default, as applicable, exists on the date the definitive agreements for such Limited Condition Acquisition are entered into. For the avoidance of doubt, if Holdings has exercised its option under the first sentence of this clause (g), and any Default or Event of Default occurs following the date the definitive agreements for the applicable Limited Condition Acquisition were entered into and prior to the consummation of such Limited Condition Acquisition, any such Default or Event of Default shall be deemed to not have occurred or be continuing for purposes of determining whether any action being taken in connection with such Limited Condition Acquisition is permitted hereunderLoan Document.
(h) In connection with Unless otherwise specifically stated, whenever a time is referred to in this Agreement or in any action being taken other Loan Document, such time shall be the local time in connection with a Limited Condition AcquisitionProvidence, for purposes of:Rhode Island and New York, New York.
(i) determining compliance with any provision of this Agreement which requires the calculation of the Consolidated Coverage Ratio, the Consolidated Secured Leverage Ratio or the Consolidated Total Leverage Ratio; or
(ii) testing baskets set forth Any list in this Agreement (including baskets measured as a percentage of Consolidated Total Assets one or Foreign Consolidated Total Assets); in each case, at more items preceded by the option of Holdings (Holdings’ election words “include or “including” shall not be deemed limited to exercise such option in connection with any Limited Condition Acquisition, an “LCA Election”), the date of determination of whether any such action is permitted hereunder, stated items but shall be deemed to be the date the definitive agreements for such Limited Condition Acquisition are entered into (the “LCA Test Date”), and if, after giving pro forma effect to the Limited Condition Acquisition and the other transactions to be entered into in connection therewith (including any Incurrence of Indebtedness and the use of proceeds thereof and acquisition of Consolidated EBITDA) as if they had occurred at the beginning of the most recent four consecutive fiscal quarters ending prior to the LCA Test Date for which consolidated financial statements of Holdings are available, Holdings could have taken such action on the relevant LCA Test Date in compliance with such ratio or basket, such ratio or basket shall be deemed to have been complied with. For the avoidance of doubt, if Holdings has made an LCA Election and any of the ratios or baskets for which compliance was determined or tested as of the LCA Test Date are exceeded as a result of fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDA or Consolidated Total Assets or Foreign Consolidated Total Assets of Holdings or the Person subject to such Limited Condition Acquisition, at or prior to the consummation of the relevant transaction or action, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations. If Holdings has made an LCA Election for any Limited Condition Acquisition, then in connection with any subsequent calculation of any ratio or basket availability with respect to the Incurrence of Indebtedness or Liens, or the making of Restricted Payments or Permitted Investments, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of Holdings or the designation of an Unrestricted Subsidiary on or following the relevant LCA Test Date and prior to the earlier of the date on which such Limited Condition Acquisition is consummated or the definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition, any such ratio or basket shall be calculated on a pro forma basis assuming such Limited Condition Acquisition and other transactions in connection therewith (including any Incurrence of Indebtedness and the use of proceeds thereof) have been consummatedlimitation.
Appears in 3 contracts
Samples: Loan Agreement (K-Sea Transportation Partners Lp), Loan Agreement (K-Sea Transportation Partners Lp), Loan Agreement (K-Sea Transportation Partners Lp)
Other Definitional and Interpretive Provisions. Unless otherwise specified therein, all All terms defined in this Agreement shall have be equally applicable to both the singular and plural forms of the defined meanings when used in any Notesterms. Unless the context otherwise requires, any other Loan Document reference to any law, rule or regulation (including, without limitation, all references to any certificate Rule) or other document made or delivered pursuant hereto.
(a) As used herein and in any Notes and any other Loan Document, and any certificate or other document made or delivered pursuant hereto or thereto, accounting terms relating to Holdings and its Restricted Subsidiaries not defined in Subsection 1.1 and accounting terms partly defined in Subsection 1.1, agreement shall be construed as a reference to the extent not definedsame as it may from time to time be amended, shall have modified, supplemented or replaced. Unless the respective meanings given to them under GAAP.
(b) The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not context requires otherwise, any reference herein to any particular provision of this Agreement, Person shall be construed to include such Person’s successors and Section, Subsection, Schedule and Exhibit references are to this Agreement unless otherwise specifiedassigns. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.”
(c) For purposes ” Notwithstanding any other provision contained herein, all computations of determining amounts and ratios referred to in Section 7.7 shall be made without giving effect to any financial ratio or making any financial calculation for any fiscal quarter election under Statement of Financial Accounting Standards 159 (or portion thereofany other Financial Accounting Standard having a similar result or effect) ending prior to value any Indebtedness or other liabilities of the Company at “fair value” as defined therein. Notwithstanding anything in this Agreement or any other Loan Document to the Closing contrary, all obligations of any Person that are or would be characterized as operating lease obligations in accordance with GAAP on the Amendment No. 1 Effective Date (whether or not such operating lease obligations were in effect on such date) shall continue to be (or shall be, in the case of any such obligations not in effect on the Amendment No. 1 Effective Date) accounted for as operating lease obligations (and not as Capitalized Lease Obligations) for all purposes under this Agreement and the other Loan Documents, regardless of any change in GAAP following the components of Amendment No. 1 Effective Date that would otherwise require such financial ratio obligations to be treated or financial calculation shall be determined recharacterized (on a pro forma prospective or retroactive basis to give effect to the Transactions or otherwise) as if they had occurred at the beginning of such four-quarter period; Capitalized Lease Obligations and each Person that is a Restricted Subsidiary upon without giving effect to the Transactions shall be deemed to be a Restricted Subsidiary for purposes implementation of the components of such financial ratio or financial calculation as of the beginning of such fourFASB ASU No. 2016-quarter period.
02, Leases (d) Any financial ratios required to be satisfied in order for a specific action to be permitted under this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (rounding up if there is no nearest numberTopic 842).
(e) Any references in this Agreement to “cash and/or Cash Equivalents,” “cash, Cash Equivalents and/or Temporary Cash Investments” or any similar combination of the foregoing shall be construed as not double counting cash or any other applicable amount which would otherwise be duplicated therein.
(f) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.
(g) In connection with any action being taken in connection with a Limited Condition Acquisition, for purposes of determining compliance with any provision of this Agreement which requires that no Default, Event of Default or specified Event of Default, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall, at the option of Holdings, be deemed satisfied, so long as no Default, Event of Default or specified Event of Default, as applicable, exists on the date the definitive agreements for such Limited Condition Acquisition are entered into. For the avoidance of doubt, if Holdings has exercised its option under the first sentence of this clause (g), and any Default or Event of Default occurs following the date the definitive agreements for the applicable Limited Condition Acquisition were entered into and prior to the consummation of such Limited Condition Acquisition, any such Default or Event of Default shall be deemed to not have occurred or be continuing for purposes of determining whether any action being taken in connection with such Limited Condition Acquisition is permitted hereunder.
(h) In connection with any action being taken in connection with a Limited Condition Acquisition, for purposes of:
(i) determining compliance with any provision of this Agreement which requires the calculation of the Consolidated Coverage Ratio, the Consolidated Secured Leverage Ratio or the Consolidated Total Leverage Ratio; or
(ii) testing baskets set forth in this Agreement (including baskets measured as a percentage of Consolidated Total Assets or Foreign Consolidated Total Assets); in each case, at the option of Holdings (Holdings’ election to exercise such option in connection with any Limited Condition Acquisition, an “LCA Election”), the date of determination of whether any such action is permitted hereunder, shall be deemed to be the date the definitive agreements for such Limited Condition Acquisition are entered into (the “LCA Test Date”), and if, after giving pro forma effect to the Limited Condition Acquisition and the other transactions to be entered into in connection therewith (including any Incurrence of Indebtedness and the use of proceeds thereof and acquisition of Consolidated EBITDA) as if they had occurred at the beginning of the most recent four consecutive fiscal quarters ending prior to the LCA Test Date for which consolidated financial statements of Holdings are available, Holdings could have taken such action on the relevant LCA Test Date in compliance with such ratio or basket, such ratio or basket shall be deemed to have been complied with. For the avoidance of doubt, if Holdings has made an LCA Election and any of the ratios or baskets for which compliance was determined or tested as of the LCA Test Date are exceeded as a result of fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDA or Consolidated Total Assets or Foreign Consolidated Total Assets of Holdings or the Person subject to such Limited Condition Acquisition, at or prior to the consummation of the relevant transaction or action, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations. If Holdings has made an LCA Election for any Limited Condition Acquisition, then in connection with any subsequent calculation of any ratio or basket availability with respect to the Incurrence of Indebtedness or Liens, or the making of Restricted Payments or Permitted Investments, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of Holdings or the designation of an Unrestricted Subsidiary on or following the relevant LCA Test Date and prior to the earlier of the date on which such Limited Condition Acquisition is consummated or the definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition, any such ratio or basket shall be calculated on a pro forma basis assuming such Limited Condition Acquisition and other transactions in connection therewith (including any Incurrence of Indebtedness and the use of proceeds thereof) have been consummated.
Appears in 2 contracts
Samples: Credit Agreement (Cme Group Inc.), Credit Agreement (Cme Group Inc.)
Other Definitional and Interpretive Provisions. Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in any Notes, any other Loan Document or any certificate or other document made or delivered pursuant hereto.
(a) As used herein and in any Notes and any other Loan Document, and any certificate or other document made or delivered pursuant hereto or thereto, accounting terms relating to Holdings and its Restricted Subsidiaries not defined in Subsection 1.1 and accounting terms partly defined in Subsection 1.1, to the extent not defined, shall have the respective meanings given to them under GAAP.
(b) The words “hereof,” ”, “herein” and “hereunder” and words of similar like import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, . The captions herein are included for convenience of reference only and Section, Subsection, Schedule shall be ignored in the construction or interpretation hereof. References to Sections and Exhibit references Schedules are to Sections and Schedules of this Agreement unless otherwise specified. The All Schedules annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any capitalized terms used in any Schedule but not otherwise defined therein shall have the meaning as defined in this Agreement. Any singular term in this Agreement shall be deemed to include the plural, and any plural term the singular. Whenever the words “include,” “includes” and or “including” shall are used in this Agreement, they will be deemed to be followed by the phrase words “without limitation.”
, whether or not they are in fact followed by those words or words of like import. “Writing,” “written” and terms comparable thereto refer to printing, typing and other means of reproducing words (cincluding electronic media) For purposes of determining in a visible form. References to any financial ratio statute, rule or making any financial calculation for any fiscal quarter (or portion thereof) ending prior to the Closing Date, the components of such financial ratio or financial calculation shall be determined on a pro forma basis to give effect to the Transactions as if they had occurred at the beginning of such four-quarter period; and each Person that is a Restricted Subsidiary upon giving effect to the Transactions regulation shall be deemed to refer to such statute, rule or regulation as amended or supplemented from time to time, including through the promulgation of applicable rules or regulations. References to any agreement or contract are to that agreement or contract as amended, modified, or supplemented from time to time in accordance with the terms hereof and thereof. References to any Person include the successors and permitted assigns of that Person. References from or through any date mean, unless otherwise specified, from and including such date or through and including such date, respectively. References to one gender include all genders. All amounts due hereunder shall be a Restricted Subsidiary for purposes of the components of such financial ratio or financial calculation as of the beginning of such four-quarter period.
(d) Any financial ratios required made via wire transfer in accordance with instructions to be satisfied in order for a specific action to be permitted under this Agreement supplied during the Term and shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (rounding up if there is no nearest number)payable in funds denominated in U.S. dollars.
(e) Any references in this Agreement to “cash and/or Cash Equivalents,” “cash, Cash Equivalents and/or Temporary Cash Investments” or any similar combination of the foregoing shall be construed as not double counting cash or any other applicable amount which would otherwise be duplicated therein.
(f) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.
(g) In connection with any action being taken in connection with a Limited Condition Acquisition, for purposes of determining compliance with any provision of this Agreement which requires that no Default, Event of Default or specified Event of Default, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall, at the option of Holdings, be deemed satisfied, so long as no Default, Event of Default or specified Event of Default, as applicable, exists on the date the definitive agreements for such Limited Condition Acquisition are entered into. For the avoidance of doubt, if Holdings has exercised its option under the first sentence of this clause (g), and any Default or Event of Default occurs following the date the definitive agreements for the applicable Limited Condition Acquisition were entered into and prior to the consummation of such Limited Condition Acquisition, any such Default or Event of Default shall be deemed to not have occurred or be continuing for purposes of determining whether any action being taken in connection with such Limited Condition Acquisition is permitted hereunder.
(h) In connection with any action being taken in connection with a Limited Condition Acquisition, for purposes of:
(i) determining compliance with any provision of this Agreement which requires the calculation of the Consolidated Coverage Ratio, the Consolidated Secured Leverage Ratio or the Consolidated Total Leverage Ratio; or
(ii) testing baskets set forth in this Agreement (including baskets measured as a percentage of Consolidated Total Assets or Foreign Consolidated Total Assets); in each case, at the option of Holdings (Holdings’ election to exercise such option in connection with any Limited Condition Acquisition, an “LCA Election”), the date of determination of whether any such action is permitted hereunder, shall be deemed to be the date the definitive agreements for such Limited Condition Acquisition are entered into (the “LCA Test Date”), and if, after giving pro forma effect to the Limited Condition Acquisition and the other transactions to be entered into in connection therewith (including any Incurrence of Indebtedness and the use of proceeds thereof and acquisition of Consolidated EBITDA) as if they had occurred at the beginning of the most recent four consecutive fiscal quarters ending prior to the LCA Test Date for which consolidated financial statements of Holdings are available, Holdings could have taken such action on the relevant LCA Test Date in compliance with such ratio or basket, such ratio or basket shall be deemed to have been complied with. For the avoidance of doubt, if Holdings has made an LCA Election and any of the ratios or baskets for which compliance was determined or tested as of the LCA Test Date are exceeded as a result of fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDA or Consolidated Total Assets or Foreign Consolidated Total Assets of Holdings or the Person subject to such Limited Condition Acquisition, at or prior to the consummation of the relevant transaction or action, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations. If Holdings has made an LCA Election for any Limited Condition Acquisition, then in connection with any subsequent calculation of any ratio or basket availability with respect to the Incurrence of Indebtedness or Liens, or the making of Restricted Payments or Permitted Investments, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of Holdings or the designation of an Unrestricted Subsidiary on or following the relevant LCA Test Date and prior to the earlier of the date on which such Limited Condition Acquisition is consummated or the definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition, any such ratio or basket shall be calculated on a pro forma basis assuming such Limited Condition Acquisition and other transactions in connection therewith (including any Incurrence of Indebtedness and the use of proceeds thereof) have been consummated.
Appears in 2 contracts
Samples: Cross Business License Agreement (Xperi Inc.), Cross Business License Agreement (Xperi Inc.)
Other Definitional and Interpretive Provisions. (a) Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in any Notes, any the other Loan Document Credit Documents or any certificate or other document made or delivered pursuant heretohereto or thereto.
(ab) As used herein and in any Notes and any the other Loan DocumentCredit Documents, and any certificate or other document made or delivered pursuant hereto or thereto, (i) accounting terms relating to Holdings and its Restricted Subsidiaries any Loan Party not defined in Subsection Section 1.1 and accounting terms partly defined in Subsection Section 1.1, to the extent not defined, shall have the respective meanings given to them under GAAP.
, (bii) The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, Subsection, Schedule and Exhibit references are to this Agreement unless otherwise specified. The the words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation,” (iii) the word “incur” shall be construed to mean incur, create, issue, assume, become liable in respect of or suffer to exist (and the words “incurred” and “incurrence” shall have correlative meanings) and (iv) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, Capital Stock, securities, revenues, accounts, leasehold interests and contract rights.”
(c) Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time. Notwithstanding anything to the contrary contained herein, all financial statements delivered hereunder shall be prepared, without giving effect to any election under Statement of Financial Accounting Standards 159 (or any similar accounting principle) permitting a Person to value its financial liabilities at the fair value thereof.
(d) The words “hereof,” “herein” and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, Schedule and Exhibit references are to this Agreement unless otherwise specified.
(e) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.
(f) The word “or” as among several clauses is not exclusive unless the context otherwise requires.
(g) With respect to any undertaking by the Borrower to comply with any of the covenants set forth in this Agreement or other Credit Documents solely in relation to the Project (including the ownership and operation thereof) prior to the Second Funding Date, such obligation shall be deemed to be an obligation by the Borrower to use Project Commercially Reasonably Efforts to comply.
(h) Any Default or Event of Default that occurs and is continuing solely as a result of a failure of any Loan Party to provide to any Agent or a Lender Party a notice, a report, a budget, a certificate, financial statements or a similar written deliverable (collectively a “Reporting Deliverable”) prior to the date set forth in the Credit Documents with respect thereto or the expiration of the time period specified for the delivery of such Reporting Deliverable shall be deemed to be cured upon delivery of such Reporting Deliverable to such Agent or such Lender Party, as applicable, notwithstanding that the time period for delivery of such Reporting Deliverable shall have expired or passed.
(i) For purposes of determining compliance with any financial ratio Section of Article VII at any time, in the event that any Lien, Investment, Indebtedness (whether at the time of incurrence or making upon application of all or a portion of the proceeds thereof), Asset Disposition, Restricted Payment, Affiliate transaction, Contractual Obligation or prepayment of Indebtedness meets the criteria of one or more than one of the categories of transactions permitted pursuant to any financial calculation for any fiscal quarter clause of such Sections, such transaction (or portion thereof) ending prior to the Closing Date, the components at any time shall be permitted under one or more of such financial ratio or financial calculation shall be clauses as determined on a pro forma basis to give effect to by the Transactions as if they had occurred Borrower in its sole discretion at the beginning of such four-quarter period; and each Person that is a Restricted Subsidiary upon giving effect to the Transactions shall be deemed to be a Restricted Subsidiary for purposes of the components of such financial ratio or financial calculation as of the beginning of such four-quarter periodtime.
(dj) Any reference to a Person in any capacity includes a reference to its successors and permitted assigns in such capacity and, in the case of any Governmental Authority, any Person succeeding to any of its functions and capacities.
(k) Any financial ratios required to be satisfied in order for a specific action maintained by the Borrower pursuant to be permitted under this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (rounding with a rounding-up if there is no nearest number).
(el) Any Unless otherwise expressly provided herein, (i) references in this Agreement to “cash and/or Cash Equivalents,” “cashorganization documents, Cash Equivalents and/or Temporary Cash Investments” or any similar combination of agreements (including the foregoing shall be construed as not double counting cash or any other applicable amount which would otherwise be duplicated therein.
(f) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.
(g) In connection with any action being taken in connection with a Limited Condition Acquisition, for purposes of determining compliance with any provision of this Agreement which requires that no Default, Event of Default or specified Event of Default, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall, at the option of Holdings, be deemed satisfied, so long as no Default, Event of Default or specified Event of Default, as applicable, exists on the date the definitive agreements for such Limited Condition Acquisition are entered into. For the avoidance of doubt, if Holdings has exercised its option under the first sentence of this clause (gCredit Documents), any Contractual Obligation and any Default or Event of Default occurs following the date the definitive agreements for the applicable Limited Condition Acquisition were entered into and prior to the consummation of such Limited Condition Acquisition, any such Default or Event of Default other contractual instruments shall be deemed to include all subsequent amendments, restatements, extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements, extensions, supplements and other modifications are permitted (or, if not have occurred addressed, not prohibited) by any Credit Document and (ii) references to any Applicable Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or be continuing for purposes of determining whether any action being taken in connection with interpreting such Limited Condition Acquisition is permitted hereunderApplicable Law.
(hm) In connection with any action being taken in connection with a Limited Condition AcquisitionUnless otherwise specified, for purposes of:all references herein to times of day shall be references to Eastern time (daylight savings or standard, as applicable).
(in) determining compliance with any provision of this Agreement which requires For all purposes under the calculation of the Consolidated Coverage RatioCredit Documents, the Consolidated Secured Leverage Ratio or the Consolidated Total Leverage Ratio; or
(ii) testing baskets set forth in this Agreement (including baskets measured as a percentage of Consolidated Total Assets or Foreign Consolidated Total Assets); in each case, at the option of Holdings (Holdings’ election to exercise such option in connection with any Limited Condition Acquisition, an “LCA Election”), the date division or plan of determination division by any Loan Party under Section 18-217 of whether any such action is permitted hereunder, shall be deemed to be the date the definitive agreements for such Limited Condition Acquisition are entered into (the “LCA Test Date”), and if, after giving pro forma effect to the Limited Condition Acquisition and the other transactions to be entered into in connection therewith (including any Incurrence of Indebtedness and the use of proceeds thereof and acquisition of Consolidated EBITDA) as if they had occurred at the beginning Title 6 of the most recent four consecutive fiscal quarters ending prior to Delaware Code: (a) if any asset, right, obligation or liability of any Loan Party or any Subsidiary of any Loan Party becomes the LCA Test Date for which consolidated financial statements asset, right, obligation or liability of Holdings are availablea different Person, Holdings could have taken such action on the relevant LCA Test Date in compliance with such ratio or basket, such ratio or basket then it shall be deemed to have been complied with. For transferred from the avoidance original Loan Party or Subsidiary of doubt, if Holdings has made an LCA Election and any of a Loan Party (as the ratios or baskets for which compliance was determined or tested as of the LCA Test Date are exceeded as a result of fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDA or Consolidated Total Assets or Foreign Consolidated Total Assets of Holdings or the Person subject to such Limited Condition Acquisition, at or prior case may be) to the consummation of the relevant transaction or actionsubsequent Person and (b) if any new Person comes into existence, such baskets or ratios will not new Person shall be deemed to have been exceeded as a result organized on the first date of its existence by the holders of its Capital Stock at such fluctuations. If Holdings has made an LCA Election for any Limited Condition Acquisition, then in connection with any subsequent calculation of any ratio or basket availability with respect to the Incurrence of Indebtedness or Liens, or the making of Restricted Payments or Permitted Investments, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of Holdings or the designation of an Unrestricted Subsidiary on or following the relevant LCA Test Date and prior to the earlier of the date on which such Limited Condition Acquisition is consummated or the definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition, any such ratio or basket shall be calculated on a pro forma basis assuming such Limited Condition Acquisition and other transactions in connection therewith (including any Incurrence of Indebtedness and the use of proceeds thereof) have been consummatedtime.
Appears in 2 contracts
Samples: Credit Agreement (REV Renewables, Inc.), Credit Agreement (REV Renewables, Inc.)
Other Definitional and Interpretive Provisions. Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in any Notes, any other Loan Document or any certificate or other document made or delivered pursuant hereto.
(a) As used herein and in any Notes and any other Loan Document, and any certificate or other document made or delivered pursuant hereto or thereto, accounting terms relating to Holdings the Parent Borrower and its Restricted Subsidiaries not defined in Subsection 1.1 and accounting terms partly defined in Subsection 1.1, to the extent not defined, shall have the respective meanings given to them under GAAP.
(b) The words “hereof,” ”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, Subsection, Schedule and Exhibit references are to this Agreement unless otherwise specified. The words “include,” ”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”.”
(c) For purposes of determining any financial ratio or making any financial calculation for any fiscal quarter (or portion thereof) ending prior to the Closing Date, the components of such financial ratio or financial calculation shall be determined on a pro forma basis to give effect to the Transactions JDL Acquisition as if they it had occurred at the beginning of such four-quarter period; and each Person that is a Restricted Subsidiary upon giving effect to the Transactions shall be deemed to be a Restricted Subsidiary for purposes of the components of such financial ratio or financial calculation as of the beginning of such four-quarter period.
(d) For purposes of this Agreement and any other Loan Document, (i) for periods ending on or prior to the Closing Date, references to the consolidated financial statements of the OpCo Borrower shall be to the Special Purpose Financial Statements and the financial statements of the OpCo Borrower as of and for the period ending October 31, 2013 (the “OpCo October 2013 Financial Statements”), as the context requires, and (ii) in connection with (x) the Special Purpose Financial Statements, the OpCo October 2013 Financial Statements and the financial statements of the OpCo Borrower as of and for the period ending December 31, 2013 (together with the OpCo October 2013 Financial Statements, the “OpCo October/December 2013 Financial Statements”), (y) other financial statements to the extent they include comparisons to the Special Purpose Financial Statements or the OpCo October/December 2013 Financial Statements or (z) determining any financial ratio or making any financial calculation that includes a period ending on or prior to December 31, 2013, references to GAAP shall in each case be deemed to be to GAAP except as set forth in the Basis of Presentation Agreement; provided that nothing in this clause (d) shall require the delivery of combined or consolidated financial statements or other similar materials for or with respect to any Borrower, except as otherwise specifically required by this Agreement.
(e) Any financial ratios required to be satisfied in order for a specific action to be permitted under this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (rounding up if there is no nearest number).
(ef) Any references in this Agreement to “cash and/or Cash Equivalents,” ”, “cash, Cash Equivalents and/or Temporary Cash Investments” or any similar combination of the foregoing shall be construed as not double counting cash or any other applicable amount which would otherwise be duplicated therein.
(fg) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.
(gh) In connection with any action being taken in connection with a Limited Condition Acquisition, for purposes of determining compliance with any provision of this Agreement which requires that no Default, Event of Default or specified Event of Default, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall, at the option of Holdingsthe Borrower Representative, be deemed satisfied, so long as no Default, Event of Default or specified Event of Default, as applicable, exists on the date the definitive agreements for such Limited Condition Acquisition are entered into. For the avoidance of doubt, if Holdings the Borrower Representative has exercised its option under the first sentence of this clause (gh), and any Default or Event of Default occurs following the date the definitive agreements for the applicable Limited Condition Acquisition were entered into and prior to the consummation of such Limited Condition Acquisition, any such Default or Event of Default shall be deemed to not have occurred or be continuing for purposes of determining whether any action being taken in connection with such Limited Condition Acquisition is permitted hereunder.
(hi) In connection with any action being taken in connection with a Limited Condition Acquisition, for purposes of:
(i) determining compliance with any provision of this Agreement which requires the calculation of the Consolidated Coverage Ratio, the Consolidated Secured Leverage Ratio or the Consolidated Total Leverage Ratio; or
(ii) testing baskets set forth in this Agreement (including baskets measured as a percentage of Consolidated Total Assets or Foreign Consolidated Total Assets); in each case, at the option of Holdings the Borrower Representative (Holdings’ the Borrower Representative’s election to exercise such option in connection with any Limited Condition Acquisition, an “LCA Election”), the date of determination of whether any such action is permitted hereunder, shall be deemed to be the date the definitive agreements for such Limited Condition Acquisition are entered into (the “LCA Test Date”), and if, after giving pro forma effect to the Limited Condition Acquisition and the other transactions to be entered into in connection therewith (including any Incurrence of Indebtedness and the use of proceeds thereof and acquisition of Consolidated EBITDAthereof) as if they had occurred at the beginning of the most recent four consecutive fiscal quarters ending prior to the LCA Test Date for which consolidated financial statements of Holdings the OpCo Borrower are available, Holdings such Borrower could have taken such action on the relevant LCA Test Date in compliance with such ratio or basket, such ratio or basket shall be deemed to have been complied with. For the avoidance of doubt, if Holdings the Borrower Representative has made an LCA Election and any of the ratios or baskets for which compliance was determined or tested as of the LCA Test Date are exceeded as a result of fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDA or Consolidated Total Assets or Foreign Consolidated Total Assets of Holdings the OpCo Borrower or the Person subject to such Limited Condition Acquisition, at or prior to the consummation of the relevant transaction or action, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations. If Holdings the Borrower Representative has made an LCA Election for any Limited Condition Acquisition, then in connection with any subsequent the calculation of any ratio or basket availability with respect to the Incurrence of Indebtedness or Liens, or the making of Restricted Payments or Permitted InvestmentsPayments, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of Holdings the Parent Borrower or the designation of an Unrestricted Subsidiary on or following the relevant LCA Test Date and prior to the earlier of the date on which such Limited Condition Acquisition is consummated or the definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisitionterminated, any such ratio or basket shall be calculated on a pro forma basis assuming such Limited Condition Acquisition and other transactions in connection therewith (including any Incurrence of Indebtedness and the use of proceeds thereof) have been consummated.
(j) For purposes of this Agreement and any other Loan Document, references to Consolidated Interest Expense, Designated Preferred Stock and Indebtedness of the OpCo Borrower shall in each case be deemed to include, without duplication of any such amounts already so included, Consolidated Interest Expense, Designated Preferred Stock and Indebtedness of the Parent Borrower, including for purposes of determining or calculating Consolidated Coverage Ratio, Consolidated Secured Indebtedness, Consolidated Secured Leverage Ratio, Consolidated Total Indebtedness, Consolidated Total Leverage Ratio and Excess Cash Flow.
Appears in 1 contract
Other Definitional and Interpretive Provisions. Unless otherwise specified therein, all All terms defined in this Agreement shall have be equally applicable to both the singular and plural forms of the defined meanings when used in any Notesterms. Unless the context otherwise requires, any other Loan Document reference to any law, rule or regulation (including, without limitation, all references to any certificate Rule) or other document made or delivered pursuant hereto.
(a) As used herein and in any Notes and any other Loan Document, and any certificate or other document made or delivered pursuant hereto or thereto, accounting terms relating to Holdings and its Restricted Subsidiaries not defined in Subsection 1.1 and accounting terms partly defined in Subsection 1.1, agreement shall be construed as a reference to the extent not definedsame as it may from time to time be amended, shall have modified, supplemented or replaced. Unless the respective meanings given to them under GAAP.
(b) The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not context requires otherwise, any reference herein to any particular provision of this Agreement, Person shall be construed to include such Person’s successors and Section, Subsection, Schedule and Exhibit references are to this Agreement unless otherwise specifiedassigns. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.”
(c) For purposes ” Notwithstanding any other provision contained herein, all computations of determining amounts and ratios referred to in Section 7.7 shall be made without giving effect to any financial ratio or making any financial calculation for any fiscal quarter election under Statement of Financial Accounting Standards 159 (or portion thereofany other Financial Accounting Standard having a similar result or effect) ending prior to value any Indebtedness or other liabilities of the Company at “fair value” as defined therein. Notwithstanding anything in this Agreement or any other Loan Document to the Closing contrary, all obligations of any Person that are or would be characterized as operating lease obligations in accordance with GAAP on the Amendment No. 1 Effective Date (whether or not such operating lease obligations were in effect on such date) shall continue to be (or shall be, in the case of any such obligations not in effect on the Amendment No. 1 Effective Date) accounted for as operating lease obligations (and not as Capitalized Lease Obligations) for all purposes under this Agreement and the other Loan Documents, regardless of any change in GAAP following the components of Amendment No. 1 Effective Date that would otherwise require such financial ratio obligations to be treated or financial calculation shall be determined recharacterized (on a pro forma prospective or retroactive basis to give effect to the Transactions or otherwise) as if they had occurred at the beginning of such four-quarter period; Capitalized Lease Obligations and each Person that is a Restricted Subsidiary upon without giving effect to the Transactions shall be deemed implementation of FASB ASU No. 2016-02, Leases (Topic 842). Any reference herein to be a Restricted Subsidiary for purposes of the components of such financial ratio merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or financial calculation as of the beginning of such four-quarter period.
(d) Any financial ratios required to be satisfied in order for a specific action to be permitted under this Agreement shall be calculated by dividing the appropriate component by the other componenttransfer, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (rounding up if there is no nearest number).
(e) Any references in this Agreement to “cash and/or Cash Equivalents,” “cash, Cash Equivalents and/or Temporary Cash Investments” or any similar combination of the foregoing shall be construed as not double counting cash or any other applicable amount which would otherwise be duplicated therein.
(f) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.
(g) In connection with any action being taken in connection with a Limited Condition Acquisition, for purposes of determining compliance with any provision of this Agreement which requires that no Default, Event of Default or specified Event of Default, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall, at the option of Holdings, be deemed satisfied, so long as no Default, Event of Default or specified Event of Default, as applicable, exists on the date the definitive agreements for such Limited Condition Acquisition are entered into. For the avoidance of doubt, if Holdings has exercised its option under the first sentence of this clause (g), and any Default or Event of Default occurs following the date the definitive agreements for the applicable Limited Condition Acquisition were entered into and prior to the consummation of such Limited Condition Acquisition, any such Default or Event of Default shall be deemed to not have occurred or be continuing for purposes of determining whether any action being taken in connection with such Limited Condition Acquisition is permitted hereunder.
(h) In connection with any action being taken in connection with a Limited Condition Acquisition, for purposes of:
(i) determining compliance with any provision of this Agreement which requires the calculation of the Consolidated Coverage Ratio, the Consolidated Secured Leverage Ratio or the Consolidated Total Leverage Ratio; or
(ii) testing baskets set forth in this Agreement (including baskets measured as a percentage of Consolidated Total Assets or Foreign Consolidated Total Assets); in each case, at the option of Holdings (Holdings’ election to exercise such option in connection with any Limited Condition Acquisition, an “LCA Election”), the date of determination of whether any such action is permitted hereunderterm, shall be deemed to be apply to a division of or by a limited liability company, or an allocation of assets to a series of a limited liability company (or the date the definitive agreements for unwinding of such Limited Condition Acquisition are entered into (the “LCA Test Date”a division or allocation), and if, after giving pro forma effect to the Limited Condition Acquisition and the other transactions to be entered into in connection therewith (including any Incurrence of Indebtedness and the use of proceeds thereof and acquisition of Consolidated EBITDA) as if they had occurred at the beginning it were a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, as applicable, to, of the most recent four consecutive fiscal quarters ending prior to the LCA Test Date for which consolidated financial statements or with a separate Person. Any division of Holdings are available, Holdings could have taken such action on the relevant LCA Test Date in compliance with such ratio or basket, such ratio or basket a limited liability company shall be deemed to have been complied with. For the avoidance of doubt, if Holdings has made an LCA Election constitute a separate Person hereunder (and any of the ratios or baskets for which compliance was determined or tested as of the LCA Test Date are exceeded as a result of fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDA or Consolidated Total Assets or Foreign Consolidated Total Assets of Holdings or the Person subject to such Limited Condition Acquisition, at or prior to the consummation of the relevant transaction or action, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations. If Holdings has made an LCA Election for any Limited Condition Acquisition, then in connection with any subsequent calculation each division of any ratio limited liability company that is a Subsidiary, joint venture or basket availability with respect to the Incurrence of Indebtedness any other like term shall also constitute such a Person or Liens, or the making of Restricted Payments or Permitted Investments, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of Holdings or the designation of an Unrestricted Subsidiary on or following the relevant LCA Test Date and prior to the earlier of the date on which such Limited Condition Acquisition is consummated or the definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition, any such ratio or basket shall be calculated on a pro forma basis assuming such Limited Condition Acquisition and other transactions in connection therewith (including any Incurrence of Indebtedness and the use of proceeds thereof) have been consummated.entity). 136129539
Appears in 1 contract
Samples: Credit Agreement (Cme Group Inc.)
Other Definitional and Interpretive Provisions. Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in any Notes, any other Loan Document or any certificate or other document made or delivered pursuant hereto.
(a) As used herein and in any Notes and any other Loan Document, and any certificate or other document made or delivered pursuant hereto or thereto, accounting terms relating to Holdings the Parent Borrower and its Restricted Subsidiaries not defined in Subsection 1.1 and accounting terms partly defined in Subsection 1.1, to the extent not defined, shall have the respective meanings given to them under GAAP.
(b) The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, Subsection, Schedule and Exhibit references are to this Agreement unless otherwise specified. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.”” Any reference herein to any Person shall be construed to include such Person’s successors and assigns permitted hereunder.
(c) For purposes of determining any financial ratio or making any financial calculation for any fiscal quarter (or portion thereof) ending prior to the Closing Date, the components of such financial ratio or financial calculation shall be determined on a pro forma basis to give effect to the Transactions as if they had occurred at the beginning of such four-quarter period; and each Person that is a Restricted Subsidiary upon giving effect to the Transactions shall be deemed to be a Restricted Subsidiary for purposes of the components of such financial ratio or financial calculation as of the beginning of such four-quarter period.
(d) For purposes of this Agreement for periods ending on or prior to the Closing Date, references to the consolidated financial statements of the Parent Borrower shall be to the consolidated financial statements of the Company, as the context may require, provided that nothing in this clause (d) shall require the delivery of combined or consolidated financial statements or other similar materials for or with respect to the Company, except as otherwise specifically required by this Agreement.
(e) Any financial ratios required to be satisfied in order for a specific action to be permitted under this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (rounding up if there is no nearest number).
(ef) Any references in this Agreement to “cash and/or Cash Equivalents,” “cash, Cash Equivalents and/or Temporary Cash Investments” or any similar combination of the foregoing shall be construed as not double counting cash or any other applicable amount which would otherwise be duplicated therein.
(fg) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.
(gh) In connection with any action being taken in connection with a Limited Condition Acquisition, including any Extension of Credit in connection therewith:
(i) for purposes of determining compliance with any provision of this Agreement which requires that no Default, Event of Default or specified Event of Default, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall, at the option of Holdingsthe Borrower Representative, be deemed satisfied, so long as no Default, Event of Default or specified Event of Default, as applicable, exists on the date the definitive agreements for such Limited Condition Acquisition are entered into. For the avoidance of doubt, if Holdings the Borrower Representative has exercised its option under the first sentence of this clause (gh), and any Default or Event of Default occurs following the date the definitive agreements for the applicable Limited Condition Acquisition were entered into and prior to the consummation of such Limited Condition Acquisition, any such Default or Event of Default shall be deemed to not have occurred or be continuing for purposes of determining whether any action being taken in connection with such Limited Condition Acquisition is permitted hereunder.
(hii) for purposes of determining whether the conditions precedent to any Extension of Credit in connection therewith have been satisfied, the provisions of Subsection 6.2(b) shall not apply, but instead the condition therein shall be deemed satisfied if the representations listed in clauses (x) to (z) of the definition of “Major Representations” shall be made solely by and with respect to the Parent Borrower and its Restricted Subsidiaries (other than by or with respect to the business or Person being acquired pursuant to such Limited Condition Acquisition and its Subsidiaries) and shall, except to the extent they relate to a particular date, be true and correct in all material respects on and as of such date as if made on and as of such date.
(i) In connection with any action being taken in connection with a Limited Condition Acquisition, for purposes of:
(i) determining compliance with any provision of this Agreement which requires the calculation of the Consolidated Coverage Ratio, the Consolidated Secured First Lien Leverage Ratio or the Consolidated Total Leverage Ratio; or
(ii) testing baskets set forth in this Agreement (including baskets measured as a percentage of Consolidated Total Assets or Foreign Consolidated Total Assets); in each case, at the option of Holdings the Borrower Representative (Holdings’ the Borrower Representative’s election to exercise such option in connection with any Limited Condition Acquisition, an “LCA Election”), the date of determination of whether any such action is permitted hereunder, shall be deemed to be the date the definitive agreements for such Limited Condition Acquisition are entered into (the “LCA Test Date”), and if, after giving pro forma effect to the Limited Condition Acquisition and the other transactions to be entered into in connection therewith (including any Incurrence of Indebtedness and the use of proceeds thereof and acquisition of Consolidated EBITDAthereof) as if they had occurred at the beginning of the most recent four consecutive fiscal quarters ending prior to the LCA Test Date for which consolidated financial statements of Holdings the Parent Borrower are available, Holdings the Parent Borrower could have taken such action on the relevant LCA Test Date in compliance with such ratio or basket, such ratio or basket shall be deemed to have been complied with. For the avoidance of doubt, if Holdings the Borrower Representative has made an LCA Election and any of the ratios or baskets for which compliance was determined or tested as of the LCA Test Date are exceeded as a result of fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDA or Consolidated Total Assets or Foreign EBITDA, Consolidated Total Assets of Holdings the Parent Borrower or the Person subject to such Limited Condition Acquisition, at or prior to the consummation of the relevant transaction or action, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations. If Holdings the Borrower Representative has made an LCA Election for any Limited Condition Acquisition, then in connection with any subsequent calculation of any ratio or basket availability with respect to the Incurrence of Indebtedness or Liens, or the making of Restricted Payments or Permitted InvestmentsPayments, Asset Dispositions, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of Holdings the Parent Borrower or the designation of an Unrestricted Subsidiary on or following the relevant LCA Test Date and prior to the earlier of the date on which such Limited Condition Acquisition is consummated or the definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition, any such ratio or basket shall be calculated on a pro forma basis assuming such Limited Condition Acquisition and other transactions in connection therewith (including any Incurrence of Indebtedness and the use of proceeds thereof) have been consummated.
(j) Subject to Subsection 8.1(d), when determining compliance with any basket, threshold, ratio or other amounts under this Agreement or the other Loan Documents, the Euro Equivalent shall be calculated as at the date of the incurrence or making of the relevant disposition, acquisition, investment, Indebtedness, Restricted Payment or taking other relevant action or, upon the Parent Borrower making an LCA Election, on the LCA Test Date; provided that (x) no Default or Event of Default or breach of any covenant or representation or warranty shall arise merely as a result of a change in the Euro Equivalent of any relevant amount due to fluctuations in exchange rates and (y) the Euro Equivalent principal or face amount of any Indebtedness or Investment outstanding on the Closing Date shall be calculated based on the relevant currency exchange rate in effect on the Closing Date. For purposes of calculation of the Consolidated First Lien Leverage Ratio and Consolidated Total Leverage Ratio any determination of (x) Consolidated Total Indebtedness and (y) any other item determined on the basis of amounts specified in the consolidated balance sheet, amounts in any currency other than Euro shall be translated into Euro at the currency exchange rates used in the relevant financial period for determining the contribution to Consolidated Net Income or Consolidated EBITDA of any items not originally denominated in Euro in preparing the annual or quarterly income statements required to be delivered pursuant to Subsection 7.1(a) or 7.1(b), or, if such financials have not yet been required to be delivered, the most recent income statement referenced in Subsection 5.1(a) or the most recent income statement referred to in Subsection 6.1(e).
(k) Without prejudice to the generality of any provision of this Agreement, in this Agreement where it relates to a Luxembourg entity, and unless the contrary intention appears, a reference to:
(i) a winding-up, liquidation, administration, reorganization or dissolution includes, without limitation, bankruptcy (faillite), liquidation (liquidation), composition with creditors (concordat préventif de la faillite), moratorium or suspension of payments (sursis de paiement) and controlled management (gestion contrôlée);
(ii) a receiver, trustee, custodian, conservator or similar officer includes, without limitation, a juge délégué, commissaire, juge-commissaire, mandataire ad hoc, administrateur provisoire, liquidateur or curateur;
(iii) a lien or security interest includes without limitation any hypothèque, nantissement, gage, privilège, sûreté réelle, droit de rétention, and any type of security in rem (sûreté réelle) and any transfer of title by way of security;
(iv) a person being unable to pay its debts includes that person being in a state of cessation de paiements;
(v) by-laws or constitutional documents includes its articles of association (statuts coordonnés); and
(vi) a director includes a gérant or an administrateur.
Appears in 1 contract
Other Definitional and Interpretive Provisions. Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in any Notes, any other Loan Document or any certificate or other document made or delivered pursuant hereto.
(a) As used herein and in any Notes and any other Loan Document, and any certificate or other document made or delivered pursuant hereto or thereto, accounting terms relating to Holdings the Borrower and its Restricted Subsidiaries not defined in Subsection 1.1 and accounting terms partly defined in Subsection 1.1, to the extent not defined, shall have the respective meanings given to them under GAAP.
(b) The words “hereof,” ”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, Subsection, Schedule and Exhibit references are to this Agreement unless otherwise specified. The words “include,” ”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation.”
(c) For purposes of determining any financial ratio or making any financial calculation for any fiscal quarter (or portion thereof) ending prior to the Closing Date, the components of such financial ratio or financial calculation shall be determined on a pro forma basis to give effect to the Transactions Merger as if they it had occurred at the beginning of such four-quarter period; and each Person that is a Restricted Subsidiary upon giving effect to the Transactions Merger shall be deemed to be a Restricted Subsidiary for purposes of the components of such financial ratio or financial calculation as of the beginning of such four-quarter period.
(d) For purposes of this Agreement for periods ending on or prior to the Closing Date, references to the consolidated financial statements of the Borrower shall be to the consolidated financial statements of PharMEDium, as the context may require; provided that nothing in this clause (d) shall require the delivery of consolidated financial statements or other similar materials for or with respect to PharMEDium and its Subsidiaries, except as otherwise specifically required by this Agreement.
(e) Any financial ratios required to be satisfied in order for a specific action to be permitted under this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (rounding up if there is no nearest number).
(ef) Any references in this Agreement to “cash and/or Cash Equivalents,” ”, “cash, Cash Equivalents and/or Temporary Cash Investments” or any similar combination of the foregoing shall be construed as not double counting cash or any other applicable amount which would otherwise be duplicated therein.
(fg) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.
(gh) In connection with any action being taken in connection with a Limited Condition Acquisition, for purposes of determining compliance with any provision of this Agreement which requires that no Default, Event of Default or specified Event of Default, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall, at the option of Holdingsthe Borrower, be deemed satisfied, so long as no Default, Event of Default or specified Event of Default, as applicable, exists on the date the definitive agreements for such Limited Condition Acquisition are entered into. For the avoidance of doubt, if Holdings the Borrower has exercised its option under the first sentence of this clause (gh), and any Default or Event of Default occurs following the date the definitive agreements for the applicable Limited Condition Acquisition were entered into and prior to the consummation of such Limited Condition Acquisition, any such Default or Event of Default shall be deemed to not have occurred or be continuing for purposes of determining whether any action being taken in connection with such Limited Condition Acquisition is permitted hereunder.
(hi) In connection with any action being taken in connection with a Limited Condition Acquisition, for purposes of:
(i) determining compliance with any provision of this Agreement which requires the calculation of the Consolidated Coverage Ratio, the Consolidated Secured First Lien Leverage Ratio or the Consolidated Total Leverage Ratio; or
(ii) testing baskets set forth in this Agreement (including baskets measured as a percentage of Consolidated Total Assets or Foreign Consolidated Total Assets); in each case, at the option of Holdings the Borrower (Holdings’ the Borrower’s election to exercise such option in connection with any Limited Condition Acquisition, an “LCA Election”), the date of determination of whether any such action is permitted hereunder, shall be deemed to be the date the definitive agreements for such Limited Condition Acquisition are entered into (the “LCA Test Date”), and if, after giving pro forma effect to the Limited Condition Acquisition and the other transactions to be entered into in connection therewith (including any Incurrence of Indebtedness and the use of proceeds thereof and acquisition of Consolidated EBITDAthereof) as if they had occurred at the beginning of the most recent four consecutive fiscal quarters ending prior to the LCA Test Date for which consolidated financial statements of Holdings the Borrower are available, Holdings the Borrower could have taken such action on the relevant LCA Test Date in compliance with such ratio or basket, such ratio or basket shall be deemed to have been complied with. For the avoidance of doubt, if Holdings the Borrower has made an LCA Election and any of the ratios or baskets for which compliance was determined or tested as of the LCA Test Date are exceeded as a result of fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDA or Consolidated Total Assets or Foreign Consolidated Total Assets of Holdings the Borrower or the Person subject to such Limited Condition Acquisition, at or prior to the consummation of the relevant transaction or action, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations. If Holdings the Borrower has made an LCA Election for any Limited Condition Acquisition, then in connection with any subsequent calculation of any ratio or basket availability with respect to the Incurrence of Indebtedness or Liens, or the making of Restricted Payments or Permitted InvestmentsPayments, Asset Dispositions, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of Holdings the Borrower or the designation of an Unrestricted Subsidiary on or following the relevant LCA Test Date and prior to the earlier of the date on which such Limited Condition Acquisition is consummated or the definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition, any such ratio or basket shall be calculated on a pro forma basis assuming such Limited Condition Acquisition and other transactions in connection therewith (including any Incurrence of Indebtedness and the use of proceeds thereof) have been consummated.
Appears in 1 contract
Samples: First Lien Credit Agreement (PharMEDium Healthcare Holdings, Inc.)
Other Definitional and Interpretive Provisions. Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in any Notes, any other Loan Document or any certificate or other document made or delivered pursuant hereto.
(a) As used herein and in any Notes and any other Loan Document, and any certificate or other document made or delivered pursuant hereto or thereto, accounting terms relating to Holdings the Parent Borrower and its Restricted Subsidiaries not defined in Subsection 1.1 and accounting terms partly defined in Subsection 1.1, to the extent not defined, shall have the respective meanings given to them under GAAP.
(b) The words “hereof,” ”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, Subsection, Schedule and Exhibit references are to this Agreement unless otherwise specified. The words “include,” ”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”.”
(c) Financial ratios and other financial calculations pursuant to this Agreement, including calculations pursuant to Subsection 8.1 shall, following any transaction described in the definition of “Pro Forma Basis,” be calculated on a Pro Forma Basis until the completion of four full Fiscal Quarters following such transaction (and shall also be subject to clause (d) below to the extent applicable).
(d) For purposes of determining any financial ratio or making any financial calculation for any fiscal quarter Fiscal Quarter (or portion thereof) ending prior to the Closing DateDate (other than the calculation of Consolidated Interest Expense, as and to the extent set forth in the definition thereof), the components of such financial ratio or financial calculation shall be determined on a pro forma basis to give effect to the Transactions JDL Acquisition as if they it had occurred at the beginning of such four-quarter four Fiscal Quarter period; and each Person that is a Restricted Subsidiary upon giving effect to the Transactions shall be deemed to be a Restricted Subsidiary for purposes of the components of such financial ratio or financial calculation as of the beginning of such four-quarter four Fiscal Quarter period.
(de) For purposes of this Agreement and any other Loan Document, (i) for periods ending on or prior to the Closing Date, references to the consolidated financial statements of the OpCo Borrower shall be to the Special Purpose Financial Statements and the financial statements of the OpCo Borrower as of and for the period ending October 31, 2013 (the “OpCo October 2013 Financial Statements”), as the context requires, and (ii) in connection with (x) the Special Purpose Financial Statements the OpCo October 2013 Financial Statements and the financial statements of the OpCo Borrower as of and for the period ending December 31, 2013 (together with the OpCo October 2013 Financial Statements, the “OpCo October/December 2013 Financial Statements”), (y) other financial statements to the extent they include comparisons to the Special Purpose Financial Statements or the OpCo October/December 2013 Financial Statements or (z) determining any financial ratio or making any financial calculation that includes a period ending on or prior to December 31, 2013, references to GAAP shall in each case be deemed to be to GAAP except as set forth in the Basis of Presentation Agreement; provided that nothing in this clause (e) shall require the delivery of combined or consolidated financial statements or other similar materials for or with respect to any Borrower, except as otherwise specifically required by this Agreement.
(f) Any financial ratios required to be maintained pursuant to this Agreement (or required to be satisfied in order for a specific action to be permitted under this Agreement Agreement) shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (rounding up if there is no nearest number).
(eg) Any references in this Agreement to “cash and/or Cash Equivalents,” ”, “cash, Cash Equivalents and/or Temporary Cash Investments” or any similar combination of the foregoing shall be construed as not double counting cash or any other applicable amount which would otherwise be duplicated therein.
(fh) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.
(gi) The Borrowing Base shall be calculated without duplication, including without duplication of any reserves, items that are otherwise addressed or excluded through eligibility criteria or items that are factored into the calculation of collection rates or collection percentages.
(j) In connection with any action being taken in connection with a Limited Condition Acquisition, for purposes of determining compliance with any provision of this Agreement which requires that no Default, Event of Default or specified Event of Specified Default, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall, at the option of Holdingsthe Borrower Representative, be deemed satisfied, so long as no Default, Event of Default or specified Event of Specified Default, as applicable, exists on the date the definitive agreements for such Limited Condition Acquisition are entered into. For the avoidance of doubt, if Holdings the Borrower Representative has exercised its option under the first sentence of this clause (gj), and any Default or Event of Default occurs following the date the definitive agreements for the applicable Limited Condition Acquisition were entered into and prior to the consummation of such Limited Condition Acquisition, any such Default or Event of Default shall be deemed to not have occurred or be continuing for purposes of determining whether any action being taken in connection with such Limited Condition Acquisition is permitted hereunder.
(hk) In connection with any action being taken in connection with a Limited Condition Acquisition, for purposes of:
(i) determining compliance with any provision of this Agreement which requires the calculation of the Consolidated Fixed Charge Coverage Ratio, the Consolidated Secured Leverage Ratio or the Consolidated Total Leverage RatioRatio (but not, for the avoidance of doubt, in determining compliance with the Payment Condition for any purpose hereunder); or
(ii) testing baskets set forth in this Agreement (including baskets measured as a percentage of Consolidated Total Assets or Foreign Consolidated Total Assets); in each case, at the option of Holdings the Borrower Representative (Holdings’ the Borrower Representative’s election to exercise such option in connection with any Limited Condition Acquisition, an “LCA Election”), the date of determination of whether any such action is permitted hereunder, shall be deemed to be the date the definitive agreements for such Limited Condition Acquisition are entered into (the “LCA Test Date”), and if, after giving pro forma effect to the Limited Condition Acquisition and the other transactions to be entered into in connection therewith (including any Incurrence incurrence of Indebtedness and the use of proceeds thereof and acquisition of Consolidated EBITDAthereof) as if they had occurred at the beginning of the most recent four consecutive fiscal quarters ending prior to the LCA Test Date for which consolidated financial statements of Holdings the OpCo Borrower are available, Holdings the OpCo Borrower could have taken such action on the relevant LCA Test Date in compliance with such ratio or basket, such ratio or basket shall be deemed to have been complied with. For the avoidance of doubt, if Holdings the Borrower Representative has made an LCA Election and any of the ratios or baskets for which compliance was determined or tested as of the LCA Test Date are exceeded as a result of fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDA or Consolidated Total Assets or Foreign Consolidated Total Assets of Holdings the OpCo Borrower or the Person subject to such Limited Condition Acquisition, at or prior to the consummation of the relevant transaction or action, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations. If Holdings the Borrower Representative has made an LCA Election for any Limited Condition Acquisition, then in connection with any subsequent the calculation of any ratio or basket availability with respect to the Incurrence incurrence of Indebtedness or Liens, or the making of Restricted Payments or Permitted InvestmentsPayments, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of Holdings the Parent Borrower or the designation of an Unrestricted Subsidiary on or following the relevant LCA Test Date and prior to the earlier of the date on which such Limited Condition Acquisition is consummated or the definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisitionterminated, any such ratio or basket shall be calculated on a pro forma basis assuming such Limited Condition Acquisition and other transactions in connection therewith (including any Incurrence of Indebtedness and the use of proceeds thereof) have been consummated.
(l) For purposes of this Agreement and any other Loan Document, references to Consolidated Interest Expense, Consolidated Secured Leverage Ratio (as defined in the Term Loan Credit Agreement), Guarantee Obligations, and Indebtedness of the OpCo Borrower shall in each case be deemed to include, without duplication of any such amounts already so included, Consolidated Interest Expense, Consolidated Secured Leverage Ratio (as defined in the Term Loan Credit Agreement), Guarantee Obligations, and Indebtedness of the Parent Borrower, including for purposes of determining or calculating Consolidated Fixed Charge Coverage Ratio, Debt Service Charges, Financial Covenant Debt and Total Leverage Ratio.
Appears in 1 contract
Other Definitional and Interpretive Provisions. Unless otherwise specified therein, all All terms defined in this Agreement shall have be equally applicable to both the singular and plural forms of the defined meanings when used in any Notesterms. Unless the context otherwise requires, any other Loan Document reference to any law, rule or regulation (including, without limitation, all references to any certificate Rule) or other document made or delivered pursuant hereto.
(a) As used herein and in any Notes and any other Loan Document, and any certificate or other document made or delivered pursuant hereto or thereto, accounting terms relating to Holdings and its Restricted Subsidiaries not defined in Subsection 1.1 and accounting terms partly defined in Subsection 1.1, agreement shall be construed as a reference to the extent not definedsame as it may from time to time be amended, shall have modified, supplemented or replaced. Unless the respective meanings given to them under GAAP.
(b) The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not context requires otherwise, any reference herein to any particular provision of this Agreement, Person shall be construed to include such Person’s successors and Section, Subsection, Schedule and Exhibit references are to this Agreement unless otherwise specifiedassigns. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.”
(c) For purposes ” Notwithstanding any other provision contained herein, all computations of determining amounts and ratios referred to in Section 7.7 shall be made without giving effect to any financial ratio or making any financial calculation for any fiscal quarter election under Statement of Financial Accounting Standards 159 (or portion thereofany other Financial Accounting Standard having a similar result or effect) ending prior to value any Indebtedness or other liabilities of the Company at “fair value” as defined therein. Notwithstanding anything in this Agreement or any other Loan Document to the Closing contrary, all obligations of any Person that are or would be characterized as operating lease obligations in accordance with GAAP on the Amendment No. 1 Effective Date (whether or not such operating lease obligations were in effect on such date) shall continue to be (or shall be, in the case of any such obligations not in effect on the Amendment No. 1 Effective Date) accounted for as operating lease obligations (and not as Capitalized Lease Obligations) for all purposes under this Agreement and the other Loan Documents, regardless of any change in GAAP following the components of Amendment No. 1 Effective Date that would otherwise require such financial ratio obligations to be treated or financial calculation shall be determined recharacterized (on a pro forma prospective or retroactive basis to give effect to the Transactions or otherwise) as if they had occurred at the beginning of such four-quarter period; Capitalized Lease Obligations and each Person that is a Restricted Subsidiary upon without giving effect to the Transactions shall be deemed implementation of FASB ASU No. 2016-02, Leases (Topic 842). Any reference herein to be a Restricted Subsidiary for purposes of the components of such financial ratio merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or financial calculation as of the beginning of such four-quarter period.
(d) Any financial ratios required to be satisfied in order for a specific action to be permitted under this Agreement shall be calculated by dividing the appropriate component by the other componenttransfer, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (rounding up if there is no nearest number).
(e) Any references in this Agreement to “cash and/or Cash Equivalents,” “cash, Cash Equivalents and/or Temporary Cash Investments” or any similar combination of the foregoing shall be construed as not double counting cash or any other applicable amount which would otherwise be duplicated therein.
(f) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.
(g) In connection with any action being taken in connection with a Limited Condition Acquisition, for purposes of determining compliance with any provision of this Agreement which requires that no Default, Event of Default or specified Event of Default, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall, at the option of Holdings, be deemed satisfied, so long as no Default, Event of Default or specified Event of Default, as applicable, exists on the date the definitive agreements for such Limited Condition Acquisition are entered into. For the avoidance of doubt, if Holdings has exercised its option under the first sentence of this clause (g), and any Default or Event of Default occurs following the date the definitive agreements for the applicable Limited Condition Acquisition were entered into and prior to the consummation of such Limited Condition Acquisition, any such Default or Event of Default shall be deemed to not have occurred or be continuing for purposes of determining whether any action being taken in connection with such Limited Condition Acquisition is permitted hereunder.
(h) In connection with any action being taken in connection with a Limited Condition Acquisition, for purposes of:
(i) determining compliance with any provision of this Agreement which requires the calculation of the Consolidated Coverage Ratio, the Consolidated Secured Leverage Ratio or the Consolidated Total Leverage Ratio; or
(ii) testing baskets set forth in this Agreement (including baskets measured as a percentage of Consolidated Total Assets or Foreign Consolidated Total Assets); in each case, at the option of Holdings (Holdings’ election to exercise such option in connection with any Limited Condition Acquisition, an “LCA Election”), the date of determination of whether any such action is permitted hereunderterm, shall be deemed to be apply to a division of or by a limited liability company, or an allocation of assets to a series of a limited liability company (or the date the definitive agreements for unwinding of such Limited Condition Acquisition are entered into (the “LCA Test Date”a division or allocation), and if, after giving pro forma effect to the Limited Condition Acquisition and the other transactions to be entered into in connection therewith (including any Incurrence of Indebtedness and the use of proceeds thereof and acquisition of Consolidated EBITDA) as if they had occurred at the beginning it were a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, as applicable, to, of the most recent four consecutive fiscal quarters ending prior to the LCA Test Date for which consolidated financial statements or with a separate Person. Any division of Holdings are available, Holdings could have taken such action on the relevant LCA Test Date in compliance with such ratio or basket, such ratio or basket a limited liability company shall be deemed to have been complied with. For the avoidance of doubt, if Holdings has made an LCA Election constitute a separate Person hereunder (and any of the ratios or baskets for which compliance was determined or tested as of the LCA Test Date are exceeded as a result of fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDA or Consolidated Total Assets or Foreign Consolidated Total Assets of Holdings or the Person subject to such Limited Condition Acquisition, at or prior to the consummation of the relevant transaction or action, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations. If Holdings has made an LCA Election for any Limited Condition Acquisition, then in connection with any subsequent calculation each division of any ratio limited liability company that is a Subsidiary, joint venture or basket availability with respect to the Incurrence of Indebtedness any other like term shall also constitute such a Person or Liens, or the making of Restricted Payments or Permitted Investments, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of Holdings or the designation of an Unrestricted Subsidiary on or following the relevant LCA Test Date and prior to the earlier of the date on which such Limited Condition Acquisition is consummated or the definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition, any such ratio or basket shall be calculated on a pro forma basis assuming such Limited Condition Acquisition and other transactions in connection therewith (including any Incurrence of Indebtedness and the use of proceeds thereof) have been consummatedentity).
Appears in 1 contract
Samples: Credit Agreement (Cme Group Inc.)
Other Definitional and Interpretive Provisions. Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in any Notes, any other Loan Document or any certificate or other document made or delivered pursuant hereto.
(a) As used herein and in any Notes and any other Loan Document, and any certificate or other document made or delivered pursuant hereto or thereto, accounting terms relating to Holdings the Parent Borrower and its Restricted Subsidiaries not defined in Subsection 1.1 and accounting terms partly defined in Subsection 1.1, to the extent not defined, shall have the respective meanings given to them under GAAP.
(b) The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, Subsection, Schedule and Exhibit references are to this Agreement unless otherwise specified. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.”” Any reference herein to any Person shall be construed to include such Person’s successors and assigns permitted hereunder.
(c) For purposes of determining any financial ratio or making any financial calculation for any fiscal quarter (or portion thereof) ending prior to the Closing Date, the components of such financial ratio or financial calculation shall be determined on a pro forma basis to give effect to the Transactions as if they had occurred at the beginning of such four-quarter period; and each Person that is a Restricted Subsidiary upon giving effect to the Transactions shall be deemed to be a Restricted Subsidiary for purposes of the components of such financial ratio or financial calculation as of the beginning of such four-quarter period.
(d) For purposes of this Agreement for periods ending on or prior to the Closing Date, references to the consolidated financial statements of the Parent Borrower shall be to the consolidated financial statements of the Company, as the context may require, provided that nothing in this clause (d) shall require the delivery of combined or consolidated financial statements or other similar materials for or with respect to the Company, except as otherwise specifically required by this Agreement.
(e) Any financial ratios required to be satisfied in order for a specific action to be permitted under this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (rounding up if there is no nearest number).
(ef) Any references in this Agreement to “cash and/or Cash Equivalents,” “cash, Cash Equivalents and/or Temporary Cash Investments” or any similar combination of the foregoing shall be construed as not double counting cash or any other applicable amount which would otherwise be duplicated therein.
(fg) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.
(gh) In connection with any action being taken in connection with a Limited Condition Acquisition, including any Extension of Credit in connection therewith:
(i) for purposes of determining compliance with any provision of this Agreement which requires that no Default, Event of Default or specified Event of Default, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall, at the option of Holdingsthe Borrower Representative, be deemed satisfied, so long as no Default, Event of Default or specified Event of Default, as applicable, exists on the date the definitive agreements for such Limited Condition Acquisition are entered into. For the avoidance of doubt, if Holdings the Borrower Representative has exercised its option under the first sentence of this clause (gh), and any Default or Event of Default occurs following the date the definitive agreements for the applicable Limited Condition Acquisition were entered into and prior to the consummation of such Limited Condition Acquisition, any such Default or Event of Default shall be deemed to not have occurred or be continuing for purposes of determining whether any action being taken in connection with such Limited Condition Acquisition is permitted hereunder.
(h) In connection with any action being taken in connection with a Limited Condition Acquisition, for purposes of:
(i) determining compliance with any provision of this Agreement which requires the calculation of the Consolidated Coverage Ratio, the Consolidated Secured Leverage Ratio or the Consolidated Total Leverage Ratio; or
(ii) testing baskets set forth in this Agreement (including baskets measured as a percentage of Consolidated Total Assets or Foreign Consolidated Total Assets); in each case, at the option of Holdings (Holdings’ election to exercise such option in connection with any Limited Condition Acquisition, an “LCA Election”), the date of determination of whether any such action is permitted hereunder, shall be deemed to be the date the definitive agreements for such Limited Condition Acquisition are entered into (the “LCA Test Date”), and if, after giving pro forma effect to the Limited Condition Acquisition and the other transactions to be entered into in connection therewith (including any Incurrence of Indebtedness and the use of proceeds thereof and acquisition of Consolidated EBITDA) as if they had occurred at the beginning of the most recent four consecutive fiscal quarters ending prior to the LCA Test Date for which consolidated financial statements of Holdings are available, Holdings could have taken such action on the relevant LCA Test Date in compliance with such ratio or basket, such ratio or basket shall be deemed to have been complied with. For the avoidance of doubt, if Holdings has made an LCA Election and any of the ratios or baskets for which compliance was determined or tested as of the LCA Test Date are exceeded as a result of fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDA or Consolidated Total Assets or Foreign Consolidated Total Assets of Holdings or the Person subject to such Limited Condition Acquisition, at or prior to the consummation of the relevant transaction or action, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations. If Holdings has made an LCA Election for any Limited Condition Acquisition, then in connection with any subsequent calculation of any ratio or basket availability with respect to the Incurrence of Indebtedness or Liens, or the making of Restricted Payments or Permitted Investments, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of Holdings or the designation of an Unrestricted Subsidiary on or following the relevant LCA Test Date and prior to the earlier of the date on which such Limited Condition Acquisition is consummated or the definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition, any such ratio or basket shall be calculated on a pro forma basis assuming such Limited Condition Acquisition and other transactions in connection therewith (including any Incurrence of Indebtedness and the use of proceeds thereof) have been consummated.
Appears in 1 contract
Other Definitional and Interpretive Provisions. Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in any Notes, any other Loan Document or any certificate or other document made or delivered pursuant hereto.
(a) As used herein and in any Notes and any other Loan Document, and any certificate or other document made or delivered pursuant hereto or thereto, accounting terms relating to Holdings the Borrower and its Restricted Subsidiaries not defined in Subsection 1.1 and accounting terms partly defined in Subsection 1.1, to the extent not defined, shall have the respective meanings given to them under GAAP.
(b) The words “hereof,” ”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, Subsection, Schedule and Exhibit references are to this Agreement unless otherwise specified. The words “include,” ”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation.”
(c) For purposes of determining any financial ratio or making any financial calculation for any fiscal quarter (or portion thereof) ending prior to the Closing Date, the components of such financial ratio or financial calculation shall be determined on a pro forma basis to give effect to the Transactions Merger as if they it had occurred at the beginning of such four-quarter period; and each Person that is a Restricted Subsidiary upon giving effect to the Transactions Merger shall be deemed to be a Restricted Subsidiary for purposes of the components of such financial ratio or financial calculation as of the beginning of such four-quarter period.
(d) For purposes of this Agreement for periods ending on or prior to the Closing Date, references to the consolidated financial statements of the Borrower shall be to the consolidated financial statements of PharMEDium, as the context may require; provided that nothing in this clause (d) shall require the delivery of consolidated financial statements or other similar materials for or with respect to PharMEDium and its Subsidiaries, except as otherwise specifically required by this Agreement.
(e) Any financial ratios required to be satisfied in order for a specific action to be permitted under this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (rounding up if there is no nearest number).
(ef) Any references in this Agreement to “cash and/or Cash Equivalents,” ”, “cash, Cash Equivalents and/or Temporary Cash Investments” or any similar combination of the foregoing shall be construed as not double counting cash or any other applicable amount which would otherwise be duplicated therein.
(fg) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.
(gh) In connection with any action being taken in connection with a Limited Condition Acquisition, for purposes of determining compliance with any provision of this Agreement which requires that no Default, Event of Default or specified Event of Default, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall, at the option of Holdingsthe Borrower, be deemed satisfied, so long as no Default, Event of Default or specified Event of Default, as applicable, exists on the date the definitive agreements for such Limited Condition Acquisition are entered into. For the avoidance of doubt, if Holdings the Borrower has exercised its option under the first sentence of this clause (gh), and any Default or Event of Default occurs following the date the definitive agreements for the applicable Limited Condition Acquisition were entered into and prior to the consummation of such Limited Condition Acquisition, any such Default or Event of Default shall be deemed to not have occurred or be continuing for purposes of determining whether any action being taken in connection with such Limited Condition Acquisition is permitted hereunder.
(hi) In connection with any action being taken in connection with a Limited Condition Acquisition, for purposes of:
(i) determining compliance with any provision of this Agreement which requires the calculation of the Consolidated Coverage Ratio, the Consolidated First Lien Leverage Ratio, Consolidated Total Secured Leverage Ratio or the Consolidated Total Leverage Ratio; or
(ii) testing baskets set forth in this Agreement (including baskets measured as a percentage of Consolidated Total Assets or Foreign Consolidated Total Assets); in each case, at the option of Holdings the Borrower (Holdings’ the Borrower’s election to exercise such option in connection with any Limited Condition Acquisition, an “LCA Election”), the date of determination of whether any such action is permitted hereunder, shall be deemed to be the date the definitive agreements for such Limited Condition Acquisition are entered into (the “LCA Test Date”), and if, after giving pro forma effect to the Limited Condition Acquisition and the other transactions to be entered into in connection therewith (including any Incurrence of Indebtedness and the use of proceeds thereof and acquisition of Consolidated EBITDAthereof) as if they had occurred at the beginning of the most recent four consecutive fiscal quarters ending prior to the LCA Test Date for which consolidated financial statements of Holdings the Borrower are available, Holdings the Borrower could have taken such action on the relevant LCA Test Date in compliance with such ratio or basket, such ratio or basket shall be deemed to have been complied with. For the avoidance of doubt, if Holdings the Borrower has made an LCA Election and any of the ratios or baskets for which compliance was determined or tested as of the LCA Test Date are exceeded as a result of fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDA or Consolidated Total Assets or Foreign Consolidated Total Assets of Holdings the Borrower or the Person subject to such Limited Condition Acquisition, at or prior to the consummation of the relevant transaction or action, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations. If Holdings the Borrower has made an LCA Election for any Limited Condition Acquisition, then in connection with any subsequent calculation of any ratio or basket availability with respect to the Incurrence of Indebtedness or Liens, or the making of Restricted Payments or Permitted InvestmentsPayments, Asset Dispositions, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of Holdings the Borrower or the designation of an Unrestricted Subsidiary on or following the relevant LCA Test Date and prior to the earlier of the date on which such Limited Condition Acquisition is consummated or the definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition, any such ratio or basket shall be calculated on a pro forma basis assuming such Limited Condition Acquisition and other transactions in connection therewith (including any Incurrence of Indebtedness and the use of proceeds thereof) have been consummated.
Appears in 1 contract
Samples: Second Lien Credit Agreement (PharMEDium Healthcare Holdings, Inc.)
Other Definitional and Interpretive Provisions. Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in any Notes, any other Loan Document or any certificate or other document made or delivered pursuant hereto.
(a) As used herein and in any Notes and any other Loan Document, and any certificate or other document made or delivered pursuant hereto or thereto, accounting terms relating to Holdings the Parent Borrower and its Restricted Subsidiaries not defined in Subsection 1.1 and accounting terms partly defined in Subsection 1.1, to the extent not defined, shall have the respective meanings given to them under GAAP.
(b) The words “hereof,” ”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, Subsection, Schedule and Exhibit references are to this Agreement unless otherwise specified. The words “include,” ”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. Any reference herein to any Person shall be construed to include such Person’s successors and assigns permitted hereunder. Any reference herein to financial statements of the Parent Borrower shall be construed to include financial statements of the Parent Borrower or any Parent Entity whose financial statements satisfy the Parent Borrower’s reporting obligations under Subsection 7.1.”
(c) For purposes Financial ratios and other financial calculations pursuant to this Agreement, including calculations pursuant to Subsection 8.1 shall, following any transaction described in the definition of determining any financial ratio or making any financial calculation for any fiscal quarter “Pro Forma Basis,” be calculated on a Pro Forma Basis until the completion of four full Fiscal Quarters following such transaction (or portion thereofand shall also be subject to clause (d) ending prior below to the Closing Date, the components of such financial ratio or financial calculation shall be determined on a pro forma basis to give effect to the Transactions as if they had occurred at the beginning of such four-quarter period; and each Person that is a Restricted Subsidiary upon giving effect to the Transactions shall be deemed to be a Restricted Subsidiary for purposes of the components of such financial ratio or financial calculation as of the beginning of such four-quarter periodextent applicable).
(d) [Reserved].
(e) [Reserved].
(f) Any financial ratios required to be maintained pursuant to this Agreement (or required to be satisfied in order for a specific action to be permitted under this Agreement Agreement) shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (rounding up if there is no nearest number).
(eg) Any references in this Agreement to “cash and/or Cash Equivalents,” ”, “cash, Cash Equivalents and/or Temporary Cash Investments” or any similar combination of the foregoing shall be construed as not double counting cash or any other applicable amount which would otherwise be duplicated therein.
(fh) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.
(gi) The Borrowing Base shall be calculated without duplication, including without duplication of any reserves, items that are otherwise addressed or excluded through eligibility criteria or items that are factored into the calculation of collection rates or collection percentages.
(j) In connection with any action being taken in connection with a Limited Condition AcquisitionTransaction, for purposes of determining compliance with any provision of this Agreement which requires that no Default, Event of Default, Specified Default or specified Default or Event of Default, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall, at the option of Holdingsthe Borrower Representative, be deemed satisfied, so long as no Default, Event of Default, Specified Default or specified Default or Event of Default, as applicable, exists on the date the (x) a definitive agreements agreement, notice or announcement, as applicable, for such Limited Condition Acquisition are Transaction is entered into, (y) in connection with an acquisition to which the United Kingdom City Code on Takeovers and Mergers (or any equivalent thereof under the laws, rules or regulations in any other applicable jurisdiction) applies, on which a “Rule 2.7 announcement” of a firm intention to make an offer in respect of a target of a Limited Condition Transaction is made (or the equivalent notice under such equivalent laws, rules or regulations in such other applicable jurisdiction) or (z) irrevocable notice of redemption, repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness, Disqualified Capital Stock or Preferred Stock is given. For the avoidance of doubt, if Holdings the Borrower Representative has exercised its option under the first sentence of this clause (gj), and any Default, Event of Default, Specified Default or specified Default or Event of Default Default, as applicable, occurs following the date the (x) a definitive agreements agreement, notice or announcement, as applicable, for the applicable Limited Condition Acquisition were Transaction was entered into into, (y) in connection with an acquisition to which the United Kingdom City Code on Takeovers and Mergers (or any equivalent thereof under the laws, rules or regulations in any other applicable jurisdiction) applies, on which a “Rule 2.7 announcement” of a firm intention to make an offer in respect of a target of a Limited Condition Transaction is made (or the equivalent notice under such equivalent laws, rules or regulations in such other applicable jurisdiction) or (z) irrevocable notice of redemption, repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness, Disqualified Capital Stock or Preferred Stock is given and prior to the consummation of such Limited Condition AcquisitionTransaction, any such Default, Event of Default, Specified Default or specified Default or Event of Default Default, as applicable, shall be deemed to not have occurred or be continuing for purposes of determining whether any action being taken in connection with such Limited Condition Acquisition Transaction is permitted hereunder.
(hk) In connection with any action being taken in connection with a Limited Condition AcquisitionTransaction, for purposes of:
(i) determining compliance with any provision of this Agreement which requires the calculation of the Consolidated Fixed Charge Coverage Ratio, the Consolidated Secured First Lien Leverage Ratio or the Consolidated Total Leverage Ratio; orRatio or any other financial measure (but not, for the avoidance of doubt, in determining compliance with the Payment Condition for any purpose hereunder);
(ii) testing baskets set forth in this Agreement (including baskets measured as a percentage of Consolidated Total Assets or Foreign Consolidated Total AssetsEBITDA); or
(iii) any other determination as to whether any such Limited Condition Transaction and any related transactions (including any financing thereof) complies with the covenants or agreements contained in this Agreement; in each case, at the option of Holdings the Borrower Representative (Holdings’ the Borrower Representative’s election to exercise such option in connection with any Limited Condition AcquisitionTransaction, an “LCA LCT Election”), the date of determination of whether any such action is permitted hereunder, shall be deemed to be the date the (x) a definitive agreements agreement, notice or announcement, as applicable, for such Limited Condition Acquisition are Transaction is entered into into, (y) in connection with an acquisition to which the United Kingdom City Code on Takeovers and Mergers (or any equivalent thereof under the laws, rules or regulations in any other applicable jurisdiction) applies, on which a “Rule 2.7 announcement” of a firm intention to make an offer in respect of a target of a Limited Condition Transaction is made (or the equivalent notice under such equivalent laws, rules or regulations in such other applicable jurisdiction) or (z) irrevocable notice of redemption, repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness, Disqualified Capital Stock or Preferred Stock is given, as applicable (the “LCA LCT Test Date”), and if, after giving pro forma effect to the Limited Condition Acquisition Transaction and the other transactions to be entered into in connection therewith (including any Incurrence incurrence or discharge of Indebtedness and Liens and the use of proceeds thereof and acquisition of Consolidated EBITDAthereof) as if they had occurred at the beginning of the most recent four consecutive fiscal quarters ending prior to the LCA LCT Test Date for which consolidated financial statements of Holdings the Parent Borrower are available, Holdings the Parent Borrower could have taken such action on the relevant LCA LCT Test Date in compliance with such ratio ratio, basket or basketamount, such ratio ratio, basket or basket amount shall be deemed to have been complied with. For the avoidance of doubt, if Holdings the Borrower Representative has made an LCA LCT Election and any of the ratios ratios, baskets or baskets amounts for which compliance was determined or tested as of the LCA LCT Test Date are exceeded as a result of fluctuations in any such ratio ratio, basket or basketamount, including due to fluctuations in Consolidated exchange rates or in EBITDA or Consolidated Total Assets or Foreign Consolidated Total Assets of Holdings the Parent Borrower or the Person subject to such Limited Condition AcquisitionTransaction or any applicable currency exchange rate, at or prior to the consummation of the relevant transaction or action, such ratios, baskets or ratios amounts will not be deemed to have been exceeded as a result of such fluctuations. If Holdings the Borrower Representative has made an LCA LCT Election for any Limited Condition AcquisitionTransaction, then in connection with any subsequent calculation of any ratio ratio, basket or basket availability amount with respect to the Incurrence incurrence or discharge of Indebtedness or Liens, or the making of Restricted Payments or Permitted InvestmentsPayments, Asset Sales, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of Holdings the Parent Borrower or the designation of an Unrestricted Subsidiary on or following the relevant LCA LCT Test Date and prior to the earlier of the date on which (1) such Limited Condition Acquisition Transaction is consummated or consummated, (2) the definitive agreement for for, or firm offer in respect of, such Limited Condition Acquisition Transaction (if an acquisition or investment) is terminated or expires without consummation of such Limited Condition AcquisitionTransaction or (3) such notice of redemption, repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness, Disqualified Capital Stock or Preferred Stock is revoked or expires without consummation, any such ratio ratio, basket or basket amount shall be calculated on a pro forma basis assuming such Limited Condition Acquisition Transaction and other transactions in connection therewith (including any Incurrence incurrence or discharge of Indebtedness and Liens and the use of proceeds thereof) have been consummated.
(l) For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws) (collectively, a “Division”), (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized and acquired on the first date of its existence by the holders of its Capital Stock at such time.
(m) Except as otherwise provided in this Agreement, when the payment of any obligation or the performance of any covenant, duty, or obligation is stated to be due or performance required on (or before) a day which is not a Business Day, the date of such payment (other than as described in the definition of Interest Period) or performance shall extend to the immediately succeeding Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.
Appears in 1 contract
Other Definitional and Interpretive Provisions. Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in any Notes, any other Loan Document or any certificate or other document made or delivered pursuant hereto.
(a) As used herein and in any Notes and any other Loan Document, and any certificate or other document made or delivered pursuant hereto or thereto, accounting terms relating to Holdings the Parent Borrower and its Restricted Subsidiaries not defined in Subsection 1.1 and accounting terms partly defined in Subsection 1.1, to the extent not defined, shall have the respective meanings given to them under GAAP.
(b) The words “hereof,” ”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, Subsection, Schedule and Exhibit references are to this Agreement unless otherwise specified. The words “include,” ”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. Any reference herein to any Person shall be construed to include such Person’s successors and assigns permitted hereunder. Any reference herein to financial statements of the Parent Borrower shall be construed to include financial statements of the Parent Borrower or any Parent Entity whose financial statements satisfy the Parent Borrower’s reporting obligations under Subsection 7.1.”
(c) For purposes of determining any financial ratio or making any financial calculation for any fiscal quarter (or portion thereof) ending prior to the Closing Date, the components of such financial ratio or financial calculation shall be determined on a pro forma basis to give effect to the Transactions as if they had occurred at the beginning of such four-quarter period; and each Person that is a Restricted Subsidiary upon giving effect to the Transactions shall be deemed to be a Restricted Subsidiary for purposes of the components of such financial ratio or financial calculation as of the beginning of such four-quarter period.
(d) [Reserved].
(e) Any financial ratios required to be satisfied in order for a specific action to be permitted under this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (rounding up if there is no nearest number).
(ef) Any references in this Agreement to “cash and/or Cash Equivalents,” ”, “cash, Cash Equivalents and/or Temporary Cash Investments” or any similar combination of the foregoing shall be construed as not double counting cash or any other applicable amount which would otherwise be duplicated therein.
(fg) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.
(gh) In connection with any action being taken in connection with a Limited Condition Acquisition, for purposes of determining compliance with any provision of this Agreement which requires that no Default, Event of Default or specified Event of Default, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall, at the option of Holdingsthe Borrower Representative, be deemed satisfied, so long as no Default, Event of Default or specified Event of Default, as applicable, exists on the date the definitive agreements for such Limited Condition Acquisition are entered into. For the avoidance of doubt, if Holdings the Borrower Representative has exercised its option under the first sentence of this clause (gh), and any Default or Event of Default occurs following the date the definitive agreements for the applicable Limited Condition Acquisition were entered into and prior to the consummation of such Limited Condition Acquisition, any such Default or Event of Default shall be deemed to not have occurred or be continuing for purposes of determining whether any action being taken in connection with such Limited Condition Acquisition is permitted hereunder.
(hi) In connection with any action being taken in connection with a Limited Condition Acquisition, for purposes of:
(i) determining compliance with any provision of this Agreement which requires the calculation of the Consolidated Coverage Ratio, the Consolidated Secured Leverage Ratio or the Consolidated Total Leverage Ratio; or
(ii) testing baskets set forth in this Agreement (including baskets measured as a percentage of Consolidated Total Assets or Foreign Consolidated Total Assets); in each case, at the option of Holdings the Borrower Representative (Holdings’ the Borrower Representative’s election to exercise such option in connection with any Limited Condition Acquisition, an “LCA Election”), the date of determination of whether any such action is permitted hereunder, shall be deemed to be the date the definitive agreements for such Limited Condition Acquisition are entered into (the “LCA Test Date”), and if, after giving pro forma effect to the Limited Condition Acquisition and the other transactions to be entered into in connection therewith (including any Incurrence of Indebtedness and the use of proceeds thereof and acquisition of Consolidated EBITDAthereof) as if they had occurred at the beginning of the most recent four consecutive fiscal quarters ending prior to the LCA Test Date for which consolidated financial statements of Holdings the Parent Borrower are available, Holdings such Borrower could have taken such action on the relevant LCA Test Date in compliance with such ratio or basket, such ratio or basket shall be deemed to have been complied with. For the avoidance of doubt, if Holdings the Borrower Representative has made an LCA Election and any of the ratios or baskets for which compliance was determined or tested as of the LCA Test Date are exceeded as a result of fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDA or Consolidated Total Assets or Foreign Consolidated Total Assets of Holdings the Parent Borrower or the Person subject to such Limited Condition Acquisition, at or prior to the consummation of the relevant transaction or action, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations. If Holdings the Borrower Representative has made an LCA Election for any Limited Condition Acquisition, then in connection with any subsequent calculation of any ratio or basket availability with respect to the Incurrence of Indebtedness or Liens, or the making of Restricted Payments or Permitted InvestmentsPayments, Asset Dispositions, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of Holdings the Parent Borrower or the designation of an Unrestricted Subsidiary on or following the relevant LCA Test Date and prior to the earlier of the date on which such Limited Condition Acquisition is consummated or the definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition, any such ratio or basket shall be calculated on a pro forma basis assuming such Limited Condition Acquisition and other transactions in connection therewith (including any Incurrence of Indebtedness and the use of proceeds thereof) have been consummated.
Appears in 1 contract
Other Definitional and Interpretive Provisions. Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in any Notes, any other Loan Document or any certificate or other document made or delivered pursuant hereto.
(a) As used herein and in any Notes and any other Loan Document, and any certificate or other document made or delivered pursuant hereto or thereto, accounting terms relating to Holdings the Parent Borrower and its Restricted Subsidiaries not defined in Subsection 1.1 and accounting terms partly defined in Subsection 1.1, to the extent not defined, shall have the respective meanings given to them under GAAP.
(b) The words “hereof,” ”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, Subsection, Schedule and Exhibit references are to this Agreement unless otherwise specified. The words “include,” ”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. Any reference herein to any Person shall be construed to include such Person’s successors and assigns permitted hereunder. Any reference herein to financial statements of the Parent Borrower shall be construed to include financial statements of the Parent Borrower or any Parent Entity whose financial statements satisfy the Parent Borrower’s reporting obligations under Subsection 7.1.”
(c) For purposes of determining any financial ratio or making any financial calculation for any fiscal quarter (or portion thereof) ending prior to the Closing Date, the components of such financial ratio or financial calculation shall be determined on a pro forma basis to give effect to the Transactions JDL AcquisitionTransactions as if they itthey had occurred at the beginning of such four-quarter period; and each Person that is a Restricted Subsidiary upon giving effect to the Transactions shall be deemed to be a Restricted Subsidiary for purposes of the components of such financial ratio or financial calculation as of the beginning of such four-quarter period.
(d) Any financial ratios required to be satisfied in order for a specific action to be permitted under For purposes of this Agreement and any other Loan Document, (i) for periods ending on or prior to the Closing Date, references to the consolidated financial statements of the OpCo Borrower shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (rounding up if there is no nearest number).
(e) Any references in this Agreement to “cash and/or Cash Equivalents,” “cash, Cash Equivalents and/or Temporary Cash Investments” or any similar combination Special Purpose Financial Statements and the financial statements of the foregoing shall be construed OpCo Borrower as not double counting cash or any other applicable amount which would otherwise be duplicated therein.
of and for the period ending October 31, 2013 (fthe “OpCo October 2013 Financial Statements”), as the context requires, and (ii) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.
(g) In connection with any action being taken in connection with a Limited Condition Acquisition(x) the Special Purpose Financial Statements, for purposes the OpCo October 2013 Financial Statements and the financial statements of determining compliance with any provision the OpCo Borrower as of this Agreement which requires that no Default, Event of Default or specified Event of Default, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall, at the option of Holdings, be deemed satisfied, so long as no Default, Event of Default or specified Event of Default, as applicable, exists on the date the definitive agreements for such Limited Condition Acquisition are entered into. For the avoidance of doubt, if Holdings has exercised its option under the first sentence of this clause (g), and any Default or Event of Default occurs following the date the definitive agreements for the applicable Limited Condition Acquisition were entered into and prior to period ending December 31, 2013 (together with the consummation of such Limited Condition Acquisition, any such Default or Event of Default shall be deemed to not have occurred or be continuing for purposes of determining whether any action being taken in connection with such Limited Condition Acquisition is permitted hereunder.
(h) In connection with any action being taken in connection with a Limited Condition Acquisition, for purposes of:
(i) determining compliance with any provision of this Agreement which requires the calculation of the Consolidated Coverage RatioOpCo October 2013 Financial Statements, the Consolidated Secured Leverage Ratio or the Consolidated Total Leverage Ratio; or
(ii) testing baskets set forth in this Agreement (including baskets measured as a percentage of Consolidated Total Assets or Foreign Consolidated Total Assets); in each case, at the option of Holdings (Holdings’ election to exercise such option in connection with any Limited Condition Acquisition, an “LCA ElectionOpCo October/December 2013 Financial Statements”), (y) other financial statements to the date of determination of whether extent they include comparisons to the Special Purpose Financial Statements or the OpCo October/December 2013 Financial Statements or (z) determining any such action is permitted hereunderfinancial ratio or making any financial calculation that includes a period ending on or prior to December 31, 2013, references to GAAP shall in each case be deemed to be to GAAP except as set forth in the date Basis of Presentation Agreement; provided that nothing in this clause (d) shall require the definitive agreements for such Limited Condition Acquisition are entered into (the “LCA Test Date”), and if, after giving pro forma effect to the Limited Condition Acquisition and the other transactions to be entered into in connection therewith (including any Incurrence delivery of Indebtedness and the use of proceeds thereof and acquisition of Consolidated EBITDA) as if they had occurred at the beginning of the most recent four consecutive fiscal quarters ending prior to the LCA Test Date for which combined or consolidated financial statements of Holdings are available, Holdings could have taken such action on the relevant LCA Test Date in compliance with such ratio or basket, such ratio other similar materials for or basket shall be deemed to have been complied with. For the avoidance of doubt, if Holdings has made an LCA Election and any of the ratios or baskets for which compliance was determined or tested as of the LCA Test Date are exceeded as a result of fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDA or Consolidated Total Assets or Foreign Consolidated Total Assets of Holdings or the Person subject to such Limited Condition Acquisition, at or prior to the consummation of the relevant transaction or action, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations. If Holdings has made an LCA Election for any Limited Condition Acquisition, then in connection with any subsequent calculation of any ratio or basket availability with respect to the Incurrence of Indebtedness or Liensany Borrower, or the making of Restricted Payments or Permitted Investments, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of Holdings or the designation of an Unrestricted Subsidiary on or following the relevant LCA Test Date and prior to the earlier of the date on which such Limited Condition Acquisition is consummated or the definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition, any such ratio or basket shall be calculated on a pro forma basis assuming such Limited Condition Acquisition and other transactions in connection therewith (including any Incurrence of Indebtedness and the use of proceeds thereof) have been consummatedexcept as otherwise specifically required by this Agreement.
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