Common use of Pro Forma Basis Clause in Contracts

Pro Forma Basis. In connection with any proposed Permitted Acquisition, (including acquisitions contemplated in connection with an LMA Agreement), Asset Sale or Asset Swap, the calculation of compliance with the financial covenants set forth in §11 by the Borrower and its Subsidiaries after including the business, business division or Person to be acquired in connection with any Permitted Acquisition or Asset Swap as if such business, business division or Person were a Subsidiary and after excluding any business, business division or Person to be sold or otherwise disposed of in connection with any Asset Sale or Asset Swap. The calculation of such compliance shall be determined as of the most recently ended Reference Period by reference to the financial results of the Borrower and its Subsidiaries for such Reference Period after adjusting the same to (i) exclude the financial results attributable to any business, business division or Person to be sold or otherwise disposed of as if such transaction occurred on the first day of such Reference Period and (ii) include the audited financial results of any business, business division or Person to be acquired, if available for such Reference Period, or if such audited financial results are not available for such Reference Period, any unaudited financial results or any management reports as are approved by the Administrative Agent in respect of such business, business division or Person, as if such Permitted Acquisition or Asset Swap had occurred on the first day of such Reference Period and including the adjustments described in clauses (a), (b), (c), (d), (e) and (f) below. Following a Permitted Acquisition, Asset Sale or Asset Swap, the calculation of compliance with the covenants set xxxxx xx §00 for any Reference Period which contains the fiscal quarter in which such Permitted Acquisition, Asset Sale or Asset Swap occurred shall be calculated in the manner set forth above for any portion of the then applicable Reference Period which occurred prior to the date of such transaction including the adjustments described in clauses (a), (b), (c), (d), (e) and (f) below:

Pro Forma Basis. In connection with any proposed Permitted Acquisition, (including acquisitions contemplated in connection with an LMA Agreement), Asset Sale or Asset Swap, the calculation of compliance with the financial covenants set forth in §11 by the Borrower and its Subsidiaries after including the business, business division or Person to be acquired in connection with any Permitted Acquisition or Asset Swap as if such business, business division or Person were a Subsidiary and after excluding any business, business division or Person to be sold or otherwise disposed of in connection with any Asset Sale or Asset Swap. The calculation of such compliance shall be determined as of the most recently ended Reference Period by reference to the financial results of the Borrower and its Subsidiaries for such Reference Period after adjusting the same to (i) exclude the financial results attributable to any business, business division or Person to be sold or otherwise disposed of as if such transaction occurred on the first day of such Reference Period and (ii) include the audited financial results of any business, business division or Person to be acquired, if available for such Reference Period, or if such audited financial results are not available for such Reference Period, any unaudited financial results or any management reports as are approved by the Administrative Agent in respect of such business, business division or Person, as if such Permitted Acquisition or Asset Swap had occurred on the first day of such Reference Period and including the adjustments described in clauses (a), (b), (c), (d), (e) and (f) below. Following a Permitted Acquisition, Asset Sale or Asset Swap, the calculation of compliance with the covenants set xxxxx fxxxx xx §00 for any Reference Period which contains the fiscal quarter in which such Permitted Acquisition, Asset Sale or Asset Swap occurred shall be calculated in the manner set forth above for any portion of the then applicable Reference Period which occurred prior to the date of such transaction including the adjustments described in clauses (a), (b), (c), (d), (e) and (f) below:

Pro Forma Basis. In connection with any proposed Permitted Acquisition, (including acquisitions contemplated in connection with an LMA Agreement), Asset Sale or Asset Swap, the calculation of compliance with the financial covenants set forth in §11 by the Borrower and its Subsidiaries (after including the business, business division or Person to be acquired in connection with any Permitted Acquisition or Asset Swap as if such business, business division or Person were a Subsidiary and after excluding any business, business division or Person to be sold or otherwise disposed of in connection with any Asset Sale or Asset Swap). The calculation of such compliance shall be determined as of the most recently ended Reference Period by reference to the financial results of the Borrower and its Subsidiaries for such Reference Period after adjusting the same to (i) exclude the financial results attributable to any business, business division or Person to be sold or otherwise disposed of as if such transaction occurred on the first day of such Reference Period and (ii) include the audited financial results of any business, business division or Person to be acquired, if available for such Reference Period, or if such audited financial results are not available for such Reference Period, any unaudited financial results or any management reports as are approved by the Administrative Agent in respect of such business, business division or Person, as if such Permitted Acquisition or Asset Swap had occurred on the first day of such Reference Period and including the adjustments described in clauses (a), (b), (c), (d), (e) and (fd) below. Following a Permitted Acquisition, Asset Sale or Asset Swap, the calculation of compliance with the covenants set xxxxx fxxxx xx §00 for any Reference Period which contains the fiscal quarter in which such Permitted Acquisition, Asset Sale or Asset Swap occurred shall be calculated in the manner set forth above for any portion of the then applicable Reference Period which occurred prior to the date of such transaction including the adjustments described in clauses (a), (b), (c), (d), (e) and (fd) below:

Pro Forma Basis. In in connection with any proposed Permitted Acquisition, (including acquisitions contemplated in connection with an LMA Agreement), Asset Sale or Asset Swap, the calculation of compliance with any financial covenant or financial term under this Agreement, (a) such compliance with the financial covenants set forth in §11 Fixed Charge Coverage Ratio shall be calculated giving effect to any acquisition, investment or other pro forma event as if such transaction (and all other such transactions consummated or made since the first (1st) day of the Fixed Charge Coverage Ratio Test Period most recently ended) happened on the first (1st) day of the Fixed Charge Coverage Ratio Test Period most recently ended, including (i) the incurrence of any Indebtedness by the Borrower and its any Loan Party or any of their Restricted Subsidiaries after including the business, business division or Person to be acquired in connection with any Permitted Acquisition such transaction, (ii) any repayment or Asset Swap as if such business, business division redemption of other Indebtedness of any Loan Party or Person were a Subsidiary and after excluding any business, business division or Person to be sold or otherwise disposed of their Restricted Subsidiaries in connection with any Asset Sale such transaction and (iii) the making of any Distribution by any Loan Party or Asset Swap. The calculation any of their Restricted Subsidiaries in connection with any such compliance transaction, (b) determinations of EBITDA shall be made giving pro forma effect to any acquisition consummated since the first (1st) day of the Fixed Charge Coverage Ratio Test Period most recently ended, with such EBITDA to be determined as if such acquisition was consummated on the first (1st) day of the Fixed Charge Coverage Ratio Test Period most recently ended Reference Period by reference ended, and (c) maintenance of Availability shall be calculated giving effect to the financial results of the Borrower and its Subsidiaries for such Reference Period after adjusting the same to transaction, including (i) exclude the financial results attributable to any business, business division or Person to be sold or otherwise disposed disposition of as if Collateral in any such transaction occurred on the first day of such Reference Period and (ii) include the audited financial results acquisition of any business, business division or Person to be acquired, if available for additional Collateral in any such Reference Period, or if such audited financial results are not available for such Reference Period, any unaudited financial results or any management reports as are transaction which is approved by the Administrative Agent for inclusion in respect of such business, business division or Person, as if such Permitted Acquisition or Asset Swap had occurred on the first day of such Reference Period and including the adjustments described in clauses (a), (b), (c), (d), (e) and (f) below. Following a Permitted Acquisition, Asset Sale or Asset Swap, the calculation of compliance with the covenants set xxxxx xx §00 for any Reference Period which contains Canadian Borrowing Base or the fiscal quarter in which U.S./European Borrowing Base, to the extent applicable. In calculating interest expense on Indebtedness incurred under clause (a) (i) of the immediately preceding sentence, such Permitted Acquisition, Asset Sale or Asset Swap occurred Indebtedness shall be calculated deemed to have borne interest (a) in the manner set forth above for any portion case of fixed rate Indebtedness, at the then rate applicable Reference Period which occurred prior to the date of such transaction including the adjustments described in clauses (a), thereto or (b)) in the case of floating rate Indebtedness, (c)at the rates which were or would have been applicable thereto during the period when such Indebtedness was or was deemed to be outstanding, (d), (e) and (f) below:in each case as reasonably calculated by Loan Party Agent.

Pro Forma Basis. In in connection with any proposed Permitted Acquisition, (including acquisitions contemplated in connection with an LMA Agreement), Asset Sale or Asset Swap, the calculation of compliance with any financial covenant or financial term under this Agreement, (a) such compliance with the financial covenants set forth in §11 Fixed Charge Coverage Ratio shall be calculated giving effect to any acquisition, investment or other pro forma event as if such transaction (and all other such transactions consummated or made since the first (1st) day of the Fixed Charge Coverage Ratio Test Period most recently ended) happened on the first (1st) day of the Fixed Charge Coverage Ratio Test Period most recently ended, including (i) the incurrence of any Indebtedness by the Borrower and its any Loan Party or any of their Restricted Subsidiaries after including the business, business division or Person to be acquired in connection with any Permitted Acquisition such transaction, (ii) any repayment or Asset Swap as if such business, business division redemption of other Indebtedness of any Loan Party or Person were a Subsidiary and after excluding any business, business division or Person to be sold or otherwise disposed of their Restricted Subsidiaries in connection with any Asset Sale such transaction and (iii) the making of any Distribution by any Loan Party or Asset Swap. The calculation any of their Restricted Subsidiaries in connection with any such compliance transaction, (b) determinations of EBITDA shall be made giving pro forma effect to any acquisition consummated since the first (1st) day of the Fixed Charge Coverage Ratio Test Period most recently ended, with such EBITDA to be determined as if such acquisition was consummated on the first (1st) day of the Fixed Charge Coverage Ratio Test Period most recently ended Reference Period by reference ended, and (c) maintenance of Availability shall be calculated giving effect to the financial results of the Borrower and its Subsidiaries for such Reference Period after adjusting the same to transaction, including (i) exclude the financial results attributable to any business, business division or Person to be sold or otherwise disposed disposition of as if Collateral in any such transaction occurred on the first day of such Reference Period and (ii) include the audited financial results acquisition of any business, business division or Person to be acquired, if available for additional Collateral in any such Reference Period, or if such audited financial results are not available for such Reference Period, any unaudited financial results or any management reports as are transaction which is approved by the Administrative Agent for inclusion in respect of such business, business division or Person, as if such Permitted Acquisition or Asset Swap had occurred on the first day of such Reference Period and including the adjustments described in clauses (a), (b), (c), (d), (e) and (f) below. Following a Permitted Acquisition, Asset Sale or Asset Swap, the calculation of compliance with the covenants set xxxxx xx §00 for any Reference Period which contains Canadian Borrowing Base or the fiscal quarter in which U.S. Borrowing Base, to the extent applicable. In calculating interest expense on Indebtedness incurred under clause (a) (i) of the immediately preceding sentence, such Permitted Acquisition, Asset Sale or Asset Swap occurred Indebtedness shall be calculated deemed to have borne interest (a) in the manner set forth above for any portion case of fixed rate Indebtedness, at the then rate applicable Reference Period which occurred prior to the date of such transaction including the adjustments described in clauses (a), thereto or (b)) in the case of floating rate Indebtedness, (c)at the rates which were or would have been applicable thereto during the period when such Indebtedness was or was deemed to be outstanding, (d), (e) and (f) below:in each case as reasonably calculated by Loan Party Agent.

Pro Forma Basis. In connection with any proposed Permitted Acquisition, (a) The definitions in Clause 26.1 (Financial definitions) shall be calculated for all purposes in this Agreement (including acquisitions contemplated the controls on Permitted Acquisitions and the right to incur any Additional Facility pursuant to Clause 2.3 (Additional Facility) or any Refinancing Facility pursuant to Clause 2.4 (Refinancing Facility) but not for the purpose of calculating Excess Cashflow) as follows: (i) there shall be included in connection with an LMA Agreement)determining Consolidated EBITDA for any Relevant Period: (A) the consolidated earnings before interest, Asset Sale or Asset Swaptax, depreciation and amortisation (calculated on the calculation of compliance with same basis as Consolidated EBITDA, mutatis mutandis) for the financial covenants set forth in §11 by the Borrower and its Subsidiaries after Relevant Period (including the businessportion thereof occurring prior to the relevant acquisition) of any entity, business division or Person to be material fixed asset acquired in connection with any Permitted Acquisition or Asset Swap as if such businessand not subsequently sold, business division or Person were a Subsidiary and after excluding any business, business division or Person to be sold transferred or otherwise disposed of by any member of the Group to a third party during such Relevant Period (each such entity or business acquired and not subsequently disposed of an Acquired Entity or Business); and (B) an adjustment in connection respect of each Acquired Entity or Business acquired during such Relevant Period equal to the amount of the Pro forma Adjustment with any Asset Sale respect to such Acquired Entity or Asset Swap. The calculation of Business for such compliance Relevant Period; (ii) there shall be determined as of excluded in determining Consolidated EBITDA for any Relevant Period the most recently ended Reference Period by reference to the financial results of the Borrower earnings before interest, tax, depreciation and its Subsidiaries for such Reference Period after adjusting amortisation (calculated on the same to (ibasis as Consolidated EBITDA, mutatis mutandis) exclude the financial results attributable to of any businessentity, business division or Person to be sold material fixed asset sold, transferred or otherwise disposed of by any member of the Group during such Relevant Period (including the portion thereof occurring prior to such sale, transfer or disposal); (iii) In addition, for purposes of calculating the Leverage Ratio: (A) any person that is a Subsidiary on the calculation date will be deemed to have been a Subsidiary at all times during such reference period; (B) any person that is not a Subsidiary on the calculation date will be deemed not to have been a Subsidiary at any time during such reference period; and (C) if any Indebtedness bears a floating rate of interest, the interest expense on such Indebtedness will be calculated as if such transaction occurred the rate in effect on the calculation date had been the applicable rate for the entire period (taking into account any Interest Rate Agreement applicable to such Indebtedness), and if any Indebtedness is not denominated in the Obligors’ Agent's functional currency, that Indebtedness for purposes of the calculation of Consolidated Leverage shall be treated in accordance with the Accounting Principles. (b) For the purpose of this Clause: Pro forma Adjustment means in relation to an Acquired Entity or Business, for any Relevant Period that includes any of the four Financial Quarters first day following the acquisition of or investment in an Acquired Entity or Business, the pro forma increase in Consolidated EBITDA reasonably projected by the Obligors’ Agent as a result of cost savings or cost synergies which are reasonably likely to be realisable at any time during the period of 18 months from the date of the relevant acquisition or investment as a result of combining the operations of such Reference Acquired Entity or Business with the operations of the Group, such that, in each case, it may be assumed that such cost savings or cost synergies will be realisable during the entire Relevant Period that includes any of the four Financial Quarters first following the acquisition of or investment in an Acquired Entity or Business, provided that for the purpose of projecting Consolidated EBITDA any such pro forma increase to Consolidated EBITDA shall be without duplication for cost savings or cost synergies actually realised during such period and already included in such Consolidated EBITDA. (c) To the extent that any Pro forma Adjustments are included in relation to an Acquired Entity or Business in any calculations made in connection with Clause 26.2 (Financial condition), by no later than the date that the applicable Compliance Certificate is delivered for that Relevant Period: (i) if the relevant cost savings and costs synergies for an individual acquisition is no greater than 5% of the combined pro forma Consolidated EBITDA of the enlarged Group, the chief financial officer of the Group will provide to the Agent a certificate confirming the reasonableness of the aggregate amount of the relevant cost savings and costs synergies; and (ii) include if the audited financial results relevant cost savings and costs synergies for an individual acquisition exceeds 5% of the combined pro forma Consolidated EBITDA of the enlarged Group, a reputable accounting firm or a reputable industry specialist shall provide commentary to the Obligors’ Agent (which may be provided in any business, business division or Person to be acquired, if available for such Reference Period, or if such audited financial results are not available for such Reference Period, any unaudited financial results or any management reports as are approved by accompanying due diligence report) that the Administrative Agent relevant cost savings and cost synergies in respect of such business, business division or Person, as if such Permitted Acquisition or Asset Swap had occurred on that acquisition are not unreasonable and the first day Obligors’ Agent will provide a copy of such Reference Period and including commentary to the adjustments described in clauses Agent (asubject to the Agent and/or the Lenders signing any relevant confidentiality, hold harmless and/or similar letters required by such firm), (b), (c), . (d)) There shall be no cap on any pro forma increases in Consolidated EBITDA, (e) and (f) below. Following a Permitted Acquisition, Asset Sale except that the aggregate amount of any pro forma cost saving or Asset Swap, the calculation cost synergy adjustments made pursuant to this Clause 26.4 in respect of compliance with the covenants set xxxxx xx §00 an Acquired Entity or Business that are included in Consolidated EBITDA for any Reference Period which contains the fiscal quarter in which such Permitted AcquisitionRelevant Period, Asset Sale or Asset Swap occurred shall be calculated in the manner set forth above for any portion not exceed 10% of the then applicable Reference combined pro forma Consolidated EBITDA of the enlarged Group for that Relevant Period which occurred prior to the date of such transaction including the adjustments described in clauses (awhen taken together), (b), (c), (d), (e) and (f) below:.

Pro Forma Basis. In connection with any proposed Permitted Acquisition, (including acquisitions contemplated in connection with an LMA Agreement), Asset Sale or Asset Swap, the calculation of compliance with the financial covenants set forth in §11 ss.12 by the Borrower and its Subsidiaries (after including the business, business division or Person to be acquired in connection with any Permitted Acquisition or Asset Swap as if such business, business division or Person were a Subsidiary and after excluding any business, business division or Person to be sold or otherwise disposed of in connection with any Asset Sale or Asset Swap). The calculation of such compliance shall be determined as of the most recently ended Reference Test Period by reference to the financial results of the Borrower and its Subsidiaries for such Reference Test Period after adjusting the same to (i) exclude the financial results attributable to any business, business division or Person to be sold or otherwise disposed of in connection with any such Asset Sale or Asset Swap as if such transaction occurred on the first day of immediately prior to such Reference Period Test Period, and (ii) include the audited financial results of any business, business division or Person to be acquiredacquired in connection with such Permitted Acquisition or Asset Swap, if available for such Reference Test Period, or if such audited financial results are not available for such Reference Test Period, any unaudited financial results or any management reports as are approved by the Administrative Agent in respect of such business, business division or Person, as if such Permitted Acquisition or Asset Swap had occurred on the first day of immediately prior to such Reference Test Period and including the adjustments described in clauses (a), (b), (c), (d), (e) and (fd) below. Following ; and, following a Permitted Acquisition, Asset Sale or Asset Swap, the calculation of compliance with the covenants set xxxxx xx §00 forth in ss.12 for any Reference Period which contains the fiscal quarter in which such Permitted Acquisition, Asset Sale or Asset Swap occurred and each of the three (3) fiscal quarters immediately following such transaction shall be calculated in the manner set forth above for any portion of the then applicable Reference Period which occurred prior to the date of such transaction including the adjustments described in clauses (a), (b), (c), (d), (e) and (fd) below: