Pro Forma Calculations. Notwithstanding anything to the contrary herein (subject to Section 1.02(j)), the First Lien Net Leverage Ratio, the Total Net Leverage Ratio and the Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 and 2.15) on a Pro Forma Basis with respect to each Specified Transaction occurring during the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four-quarter period but not later than the date of such calculation; provided that notwithstanding the foregoing, when calculating the First Lien Net Leverage Ratio for purposes of (i) determining the applicable percentage of Excess Cash Flow for purposes of Section 2.05(b), (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenant, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four quarter period shall not be given Pro Forma Effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenant, (x) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01, or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above: (1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months); (2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP; (3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and (4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and (5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savings.”
Appears in 5 contracts
Samples: Fifth Amendment (Ortho Clinical Diagnostics Holdings PLC), Amendment (Ortho Clinical Diagnostics Holdings PLC), Second Amendment (Ortho Clinical Diagnostics Holdings PLC)
Pro Forma Calculations. (a) Notwithstanding anything to the contrary herein (subject to Section 1.02(j))herein, financial ratios and tests, including the First Lien Consolidated Total Net Leverage Ratio, the Total Consolidated Secured Net Leverage Ratio, the Consolidated First Lien Net Leverage Ratio and the Fixed Charge Consolidated Interest Coverage Ratio Ratio, and Total Assets or Consolidated Net Tangible EBITDA for purposes of determining any amount based on a percentage of Total Assets or Consolidated EBITDA shall be calculated (including for purposes of Sections 2.14 and 2.15) on a Pro Forma Basis with respect to each Specified Transaction occurring during in the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four-quarter period but not later than the date of such calculationmanner prescribed by this Section 1.09; provided that notwithstanding anything to the foregoingcontrary in clauses (b), (c), (d) or (e) of this Section 1.09, when calculating the Consolidated First Lien Net Leverage Ratio for purposes of (i) determining the applicable percentage definition of Excess Cash Flow for purposes of Section 2.05(b), “Applicable Rate” and (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basispro forma compliance) with the Financial Covenantfinancial covenant pursuant to Section 7.11, any Specified Transaction and any related adjustment contemplated the events described in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) this Section 1.09 that occurred subsequent to the end of the applicable four quarter period Test Period shall not be given Pro Forma Effectpro forma effect pursuant to in this Section 1.09. In addition, whenever a financial ratio or test is to be calculated on a pro forma basis, the reference to the “Test Period” for purposes of calculating such financial ratio or test shall be deemed to be a reference to, and shall be based on, the most recently ended Test Period for which internal financial statements of the Parent Borrower are available (as determined in good faith by the Parent Borrower); provided that, the provisions of this sentence shall not apply for purposes of calculating the definition of “Excluded Proceeds,” the definition of “Applicable ECF Percentage” and determining actual compliance (and not pro forma compliance) with the financial covenant pursuant to Section 7.11, each of which shall be based on the financial statements delivered pursuant to Section 6.01(a) or (b), as applicable, for the relevant Test Period.
(b) For purposes of calculating any financial ratio or test and Total Assets or Consolidated EBITDA for purposes of determining compliance any amount based on a percentage of Total Assets or Consolidated EBITDA, Specified Transactions (with any provision incurrence or repayment of any Indebtedness in connection therewith to be subject to clause (d) of this Agreement which requires Pro Forma Compliance Section 1.09) that have been made (i) during the applicable Test Period and (ii) subject to the first sentence of clause (a) above, subsequent to such Test Period and prior to or simultaneously with the Financial Covenantevent for which the calculation of any such ratio is made shall be calculated on a pro forma basis assuming that all such Specified Transactions (and any increase or decrease in Total Assets or Consolidated EBITDA and the component financial definitions used therein attributable to any Specified Transaction) had occurred on the first day of the applicable Test Period (or, (x) in the case of Total Assets, on the last date of the applicable Test Period). If since the beginning of any applicable Test Period any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Parent Borrower or any Restricted Subsidiary since the beginning of such compliance Test Period shall have made any Specified Transaction that would have required after delivery adjustment pursuant to this Section 1.09, then such financial ratio or test (and Total Assets or Consolidated EBITDA for purposes of financial statements for the fiscal quarter ending determining any amount based on a percentage of Total Assets or about June 30, 2014, such Pro Forma Compliance Consolidated EBITDA) shall also be determined by reference calculated to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) give pro forma effect thereto in accordance with this Section 6.011.09.
(c) Whenever pro forma effect is to be given to a Specified Transaction, the pro forma calculations shall be made in good faith by a Financial Officer of the Parent Borrower and include, for the avoidance of doubt, the amount of “run-rate” cost savings, operating expense reductions and synergies projected by the Parent Borrower in good faith to result from actions that have been taken or with respect to which substantial steps have been taken (including prior to the Closing Date) or are expected to be taken (in the good faith determination of the Parent Borrower) within 24 months after such Specified Transaction (or 36 months after the Closing Date, with respect to the Transactions) (calculated on a pro forma basis as though such cost savings, operating expense reductions and synergies had been realized on the first day of such period and as if such cost savings, operating expense reductions and synergies were realized during the entirety of such period) and “run-rate” means the full recurring benefit for a period that is associated with any action taken, or with respect to which substantial steps have been taken or expected to be taken (yincluding any savings expected to result from the elimination of a public target’s compliance costs with public company requirements) net of the amount of actual benefits realized during such period from such actions, and any such adjustments shall be included in the initial pro forma calculations of such financial ratios or tests and during any subsequent Test Period in which the effects thereof are expected to be realized relating to such Specified Transaction in a manner consistent with, and without duplication of, clause (1)(h) of the definition of “Consolidated EBITDA,” whether through a pro forma adjustment or otherwise.
(d) In the event that the Parent Borrower or any Restricted Subsidiary incurs (including by assumption or guarantees), issues or repays (including by redemption, repurchase, repayment, retirement, discharge, defeasance or extinguishment) any Indebtedness included in the calculations of any financial ratio or test (in each case, other than Indebtedness incurred or repaid in respect of Revolving Credit Loans or any other revolving credit loans unless such Indebtedness has been permanently repaid and not replaced), (i) during the applicable Test Period or (ii) subject to the first sentence of clause (a) above, subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then such financial ratio or test shall be calculated giving pro forma effect to such incurrence, issuance, repayment or redemption of Indebtedness (in each case, other than Indebtedness incurred or repaid in respect of Revolving Credit Loans or any other revolving credit loans unless such Indebtedness has been permanently repaid and not replaced), to the extent required, as if the same had occurred on the last day of the applicable Test Period (except in the case of any the Consolidated Interest Coverage Ratio (or similar ratio), in which case such compliance required prior to incurrence, issuance, repayment or redemption of Indebtedness will be given effect as if the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to same had occurred on the maximum First Lien Net Leverage Ratio permitted for first day of the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:applicable Test Period).
(1e) if If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date of the event for which a determination under this definition the calculation is made had been the applicable rate for the entire period (taking into account any Swap Contracts hedging obligations applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 monthsIndebtedness);
(2) interest . Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer Financial Officer of the Parent Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest . Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency London interbank offered rate, or other rate, shall be deemed determined to have been based upon the rate actually chosen, or, or if none, then based upon such optional rate chosen as the Parent Borrower Representative or Restricted Subsidiary may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savings.”
Appears in 4 contracts
Samples: Credit Agreement (PF2 SpinCo, Inc.), Credit Agreement (PF2 SpinCo LLC), Credit Agreement (Change Healthcare Inc.)
Pro Forma Calculations. Notwithstanding anything to the contrary herein (subject to Section 1.02(j1.02(i)), the First Lien Net Leverage Ratio, the Consolidated Total Net Leverage Ratio and the Fixed Charge Coverage Ratio Ratio, Consolidated Interest Expense, Consolidated EBITDA, Consolidated Net Income and Consolidated Net Tangible Total Assets shall be calculated (including for purposes of Sections 2.14 and 2.15) on a Pro Forma Basis with respect to each Specified Transaction occurring during the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four-quarter period but not later than the date of such calculation, it being understood and agreed that any adjustments to Consolidated EBITDA pursuant to this Section 1.10 shall be subject to the same caps and limitations set forth in the definition thereof; provided that notwithstanding the foregoing, when calculating the First Lien Net Leverage Ratio for purposes of (i) determining the applicable percentage of Excess Cash Flow for purposes of Section 2.05(b), ) and (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial CovenantSection 7.08, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and any corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four quarter period shall not be given Pro Forma Effect. For purposes of determining compliance with Notwithstanding anything to the contrary in this Section 1.10 or in any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenant, (x) in the case classification under GAAP of any such compliance required after delivery Person, business, assets or operations in respect of financial statements which a definitive agreement for the fiscal quarter ending on or about June 30Disposition thereof has been entered into as discontinued operations, 2014, such Pro Forma Compliance no pro forma effect shall be determined by reference given to any discontinued operations (and the maximum First Lien Net Leverage Ratio permitted EBITDA attributable to any such Person, business, assets or operations shall not be excluded for the fiscal quarter most recently then ended for which financial statements any purposes hereunder) until such Disposition shall have been delivered (or were required to have been delivered) in accordance with Section 6.01, or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savingsconsummated.”
Appears in 4 contracts
Samples: Credit Agreement (KLDiscovery Inc.), Credit Agreement (KLDiscovery Inc.), Credit Agreement (KLDiscovery Inc.)
Pro Forma Calculations. (a) Notwithstanding anything to the contrary herein (subject to Section 1.02(j))herein, the First Lien Net Leverage Interest Coverage Ratio, the Total Net First Lien Leverage Ratio and the Fixed Charge Coverage Net Total Leverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 and 2.15) on a Pro Forma Basis with respect to each Specified Transaction occurring during in the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four-quarter period but not later than the date of such calculationmanner prescribed by this Section 1.03; provided that notwithstanding anything to the foregoingcontrary herein, when calculating any such ratio for the First Lien Net Leverage Ratio for purposes purpose of any mandatory prepayment provision hereunder or compliance with the Financial Covenants, the events set forth in clause (i) determining the applicable percentage of Excess Cash Flow for purposes of Section 2.05(bb), (iic) the Applicable Rate, (iii) the Applicable Commitment Fee and (ivd) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenant, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) below that occurred subsequent to the end of the applicable four quarter period Test Period shall not be given Pro Forma Effect. pro forma effect.
(b) For purposes of determining compliance with any provision of this Agreement which requires calculating the Interest Coverage Ratio, the Net First Lien Leverage Ratio and the Net Total Leverage Ratio, Pro Forma Compliance Transactions (and the incurrence or repayment of any Indebtedness in connection therewith) that have been consummated (i) during the applicable period of four consecutive fiscal quarters for which such financial ratio is being determined (the “Test Period”) or (ii) subsequent to such Test Period and prior to or simultaneously with the Financial Covenant, (x) in event for which the case calculation of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01, or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower ratio is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness made shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis assuming that all such Pro Forma Transactions (and any increase or decrease in Consolidated EBITDA and the component financial definitions used therein attributable to any Pro Forma Transaction) had occurred on the first day of the applicable Test Period.
(c) If pro forma effect is to be given to a Pro Forma Transaction, the pro forma calculations shall be computed based upon made in good faith by a financial or accounting Responsible Officer of the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may Borrower and include only those adjustments calculated in accordance with that would be permitted or required by Regulation S-X together with those adjustments that (a) have been certified by a Financial Officer of the Borrower as having been prepared in good faith based upon reasonable assumptions and (b) are (i) directly attributable to the Pro Forma Transaction with respect to which such adjustments are to be made, (ii) expected to have a continuing impact on the Loan Parties, (iii) factually supportable and reasonably identifiable, and (iv) based on reasonably detailed written assumptions reasonably acceptable to the Administrative Agent. For the avoidance of doubt, all pro forma adjustments shall be consistent with, and subject to the caps and limits set forth in, the applicable definitions herein. To the extent compliance with the Financial Covenants is being tested prior to the first test date under the Securities Act. Any Financial Covenants, in order to determine the permissibility of an action by the Borrower or its Subsidiaries, such compliance shall be tested against the ratios for the first test date.
(d) In the event that the Borrower or any Subsidiary incurs (including by assumption or guarantees) or repays (including by redemption, repayment, retirement or extinguishment) any Indebtedness included in the calculations of the Net Total Leverage Ratio, the Net First Lien Leverage Ratio or the Interest Coverage Ratio (other than Indebtedness incurred or repaid under any revolving credit facility in the ordinary course of business for working capital purposes) subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then the Net Total Leverage Ratio, the Net First Lien Leverage Ratio or the Interest Coverage Ratio, as applicable, shall be calculated giving pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) such incurrence or repayment of Indebtedness, to the extent such adjustmentsrequired, without duplication, continue to be as if the same had occurred on the first day of the applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost SavingsTest Period.”
Appears in 3 contracts
Samples: Credit Agreement (School Specialty Inc), Credit Agreement (School Specialty Inc), Credit Agreement (School Specialty Inc)
Pro Forma Calculations. Notwithstanding anything to the contrary herein (subject to Section 1.02(j1.02(i))) herein, the First Lien Net Leverage Ratio, the Total Senior Secured Net Leverage Ratio and the Fixed Charge Coverage Total Net Leverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 and 2.152.17) on a Pro Forma Basis with respect to each Specified Transaction occurring during the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four-quarter period but not later than the date of such calculation; provided that notwithstanding the foregoing, when calculating the First Lien Net Leverage Ratio for purposes of (i) determining the applicable percentage of Excess Cash Flow for purposes of Section 2.05(b), (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenantfinancial covenant set forth in Section 7.11, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four quarter period shall not be given Pro Forma Effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenantfinancial covenant set forth in Section 7.11, (x) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June September 30, 20142013, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01, or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter ending June September 30, 20142013. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.087.11) that requires compliance or Pro Forma Compliance with the Financial Covenantfinancial covenant set forth in Section 7.11, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Parent Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 7.11 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savings.”
Appears in 3 contracts
Samples: Credit Agreement (Axalta Coating Systems Ltd.), Credit Agreement (Axalta Coating Systems Ltd.), Credit Agreement (Axalta Coating Systems Ltd.)
Pro Forma Calculations. Notwithstanding anything to the contrary herein (subject to Section 1.02(j))contained herein, all calculations of the First Lien Net Consolidated Leverage Ratio, the Total Net Leverage Ratio and the Consolidated Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets EBITDA shall be calculated (including for purposes of Sections 2.14 and 2.15) made on a Pro Forma Basis with respect to each all Specified Transaction Transactions occurring during the applicable four quarter period Measurement Period to which such calculation relates, and/or subsequent to the end of such four-quarter period Measurement Period but not later than the date of such calculation; provided that provided, that, notwithstanding the foregoing, when calculating the First Lien Net Consolidated Leverage Ratio, the Consolidated Fixed Charge Coverage Ratio and/or Consolidated EBITDA for purposes of (i) determining the applicable percentage of Excess Cash Flow for purposes of compliance with Section 2.05(b), (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenant7.11, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four quarter period Measurement Period shall not be given Pro Forma Effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenantany financial covenant set forth in Section 7.11, (x) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June September 30, 20142015, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Consolidated Leverage Ratio, minimum Consolidated Fixed Charge Coverage Ratio and/or minimum Consolidated EBITDA, as applicable, permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.016.01(a) or (b), or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Consolidated Leverage Ratio, minimum Consolidated Fixed Charge Coverage Ratio and/or minimum Consolidated EBITDA, as applicable, permitted for the fiscal quarter ending June September 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savings2015.”
Appears in 3 contracts
Samples: Credit Agreement, Credit Agreement (Houlihan Lokey, Inc.), Credit Agreement (Houlihan Lokey, Inc.)
Pro Forma Calculations. (a) Notwithstanding anything to the contrary herein (subject to Section 1.02(j))herein, financial ratios and tests, including the Total Net Leverage Ratio, the Senior Secured Net Leverage Ratio, the First Lien Net Leverage Ratio, the Total Net Leverage Ratio and the Fixed Charge Coverage Ratio and compliance with covenants determined by reference to Consolidated Net Tangible Assets EBITDA or Total Assets, shall be calculated (including for purposes of Sections 2.14 and 2.15) on a Pro Forma Basis with respect to each Specified Transaction occurring during in the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four-quarter period but not later than the date of such calculationmanner prescribed by this Section 1.08; provided that notwithstanding anything to the foregoing, when calculating the First Lien Net Leverage Ratio for purposes of contrary in clauses (i) determining the applicable percentage of Excess Cash Flow for purposes of Section 2.05(bb), (ii) the Applicable Ratec), (iiid) the Applicable Commitment Fee and or (ive) determining actual compliance of this Section 1.08, (and not Pro Forma Compliance A) when calculating any such ratio or compliance on a Pro Forma Basis) with the Financial Covenant, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions test for purposes of the definition of Consolidated EBITDA) “Applicable Rate”, the events described in this Section 1.08 that occurred subsequent to the end of the applicable four quarter period Test Period shall not be given Pro Forma Effectpro forma effect and (B) when calculating any such ratio or test for purposes of the incurrence of any Indebtedness, cash and Cash Equivalents resulting from the incurrence of such Indebtedness shall be excluded from the pro forma calculation of any applicable ratio or test for purposes of determining net Indebtedness. In addition, whenever a financial ratio or test is to be calculated on a pro forma basis, the reference to the “Test Period” for purposes of calculating such financial ratio or test shall be deemed to be a reference to, and shall be based on, the most recently ended Test Period for which internal financial statements of the Parent Borrower are available (as determined in good faith by the Administrative Borrower). For the avoidance of doubt, the provisions of the foregoing sentence shall not apply for purposes of calculating any such ratio or test for purposes of the definition of “Applicable Rate”, which shall be based on the financial statements delivered pursuant to Section 6.01(a) or (b), as applicable, for the relevant Test Period.
(b) For purposes of determining calculating any financial ratio or test or compliance with any provision covenant determined by reference to Consolidated EBITDA or Total Assets, Specified Transactions (with any incurrence or repayment of any Indebtedness in connection therewith to be subject to clause (d) of this Agreement which requires Pro Forma Compliance Section 1.08 (other than Indebtedness incurred or repaid under any revolving credit facility or line of credit)) that have been made (i) during the applicable Test Period or (ii) if applicable as described in clause (a) above, subsequent to such Test Period and prior to or simultaneously with the Financial Covenantevent for which the calculation of any such ratio is made shall be calculated on a pro forma basis assuming that all such Specified Transactions (and any increase or decrease in Consolidated EBITDA, Total Assets and the component financial definitions used therein attributable to any Specified Transaction) had occurred on the first day of the applicable Test Period (or, in the case of Total Assets, on the last day of the applicable Test Period). If since the beginning of any applicable Test Period any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Parent Borrower or any of its Restricted Subsidiaries since the beginning of such Test Period shall have made any Specified Transaction that would have required adjustment pursuant to this Section 1.08, then such financial ratio or test (or Consolidated EBITDA or Total Assets) shall be calculated to give pro forma effect thereto in accordance with this Section 1.08.
(c) Whenever pro forma effect is to be given to the Transactions, a Specified Transaction or the implementation of an operational initiative or operational change, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Administrative Borrower and may include, for the avoidance of doubt, the amount of “run-rate” cost savings, operating expense reductions, operating initiatives, other operating improvements and synergies projected by the Administrative Borrower in good faith to be realized as a result of specified actions taken, committed to be taken or expected to be taken (in the good faith determination of the Administrative Borrower) (calculated on a pro forma basis as though such cost savings, operating expense reductions, operating initiatives, other operating improvements and synergies had been realized on the first day of such period and as if such cost savings, operating expense reductions and synergies were realized during the entirety of such period) and “run-rate” means the full recurring benefit for a period that is associated with any action taken, committed to be taken or with respect to which substantial steps have been taken or are expected to be taken (including any savings expected to result from the elimination of a public target’s compliance costs with public company requirements) net of the amount of actual benefits realized during such period from such actions, and any such adjustments shall be included in the initial pro forma calculations of such financial ratios or tests and during any subsequent Test Period in which the effects thereof are expected to be realized relating to the Transactions, such Specified Transaction or such implementation of an operational initiative or operational change; provided that (A) such amounts are reasonably identifiable and factually supportable in the good faith judgment of the Administrative Borrower, (B) except as set forth in the definition of Consolidated EBITDA, such actions are taken, committed to be taken or with respect to which substantial steps have been taken or are expected to be taken no later than twenty-four (24) months after the date of the Transactions, such Specified Transaction or implementation of such operational initiative or operational change, (C) no amounts shall be added pursuant to this clause (c) to the extent duplicative of any amounts that are otherwise added back in computing Consolidated EBITDA (or any other components thereof), whether through a pro forma adjustment or otherwise, with respect to such period, (D) it is understood and agreed that, subject to compliance with the other provisions of this Section 1.08(c), amounts to be included in pro forma calculations pursuant to this Section 1.08(c) may be included in Test Periods in which the Specified Transaction to which such amounts relate to is no longer being given pro forma effect pursuant to Section 1.08(b) and (E) any increase in Consolidated EBITDA as a result of cost savings, operating expense reductions, operating initiatives, other operating improvements and synergies pursuant to this Section 1.08(c) (other than related to the Transactions) shall be subject to the limitation set forth in clause (a)(vii) of the definition of Consolidated EBITDA.
(d) In the event that (w) the Parent Borrower or any of its Restricted Subsidiaries incurs (including by assumption or guarantees) or repays (including by redemption, repayment, amortization, retirement, discharge, defeasance or extinguishment) any Indebtedness (other than Indebtedness incurred or repaid under any revolving credit facility or line of credit), (x) the Parent Borrower or any of its Restricted Subsidiaries issues, repurchases or redeems Disqualified Equity Interests, (y) any Restricted Subsidiary issues, repurchases or redeems Preferred Stock or (z) any Borrower or any of its Restricted Subsidiaries establishes or eliminates (or designates or undesignates) any Designated Revolving Commitments, in each case included in the calculations of any financial ratio or test, (i) during the applicable Test Period or (ii) subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then such financial ratio or test shall be calculated giving pro forma effect to such incurrence or repayment of Indebtedness, or such issuance or redemption of Disqualified Equity Interests or Preferred Stock, in each case to the extent required, as if the same had occurred on the last day of the applicable Test Period (except in the case of any the Fixed Charge Coverage Ratio (or similar ratio), in which case such compliance required after delivery incurrence, assumption, guarantee, redemption, repayment, retirement, discharge, defeasance or extinguishment of financial statements Indebtedness or such issuance, repurchase or redemption of Disqualified Equity Interests or Preferred Stock will be given effect, as if the same had occurred on the first day of the applicable Test Period) and for the fiscal quarter ending on or about June 30, 2014all purposes, such Pro Forma Compliance financial ratio or test shall be determined by reference calculated giving pro forma effect to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01, or (y) in the case full amount of any undrawn Designated Revolving Commitments as if such compliance required prior to the delivery referred to in clause (x) above, full amount of Indebtedness thereunder had been incurred thereunder throughout such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:period.
(1e) if If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date of the event for which a determination under this definition the calculation of the Fixed Charge Coverage Ratio (or similar ratio) is made had been the applicable rate for the entire period (taking into account any Swap Contracts interest hedging arrangements applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 monthsIndebtedness);
(2) interest . Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer Financial Officer of the Administrative Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest . Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency Eurocurrency Rate interbank offered rate, or other rate, shall be deemed determined to have been based upon the rate actually chosen, or, or if none, then based upon such optional rate chosen as the Parent Borrower Representative or such Restricted Subsidiaries may designate; and.
(4I) interest on In connection with the calculation of the Total Net Leverage Ratio, the Senior Secured Net Leverage Ratio, the First Lien Net Leverage Ratio or the Fixed Charge Coverage Ratio for purposes of incurring Indebtedness (including Preferred Stock) or Disqualified Equity Interests under this Agreement, no effect (pro forma or otherwise) shall be given to any Indebtedness (or Preferred Stock) or Disqualified Equity Interests being incurred (or commitments obtained) on the same date (or on a such other subsequent date which otherwise require Pro Forma Effect to be given to such incurrence (or obtaining of commitments)) pursuant to any fixed dollar basket or basket based on Consolidated EBITDA; and (II) in connection with the calculation of the Total Net Leverage Ratio, the Senior Secured Net Leverage Ratio, the First Lien Net Leverage Ratio or the Fixed Charge Coverage Ratio for purposes of incurring any Lien under this Agreement, no effect (pro forma or otherwise) shall be given to any Liens being incurred on the same date (or on a revolving credit facility such other subsequent date which otherwise require Pro Forma Effect to be given to such incurrence) pursuant to any fixed dollar basket or basket based on Consolidated EBITDA.
(g) Notwithstanding anything in this Agreement or any Loan Document to the contrary, when (a) determining compliance with any provision of this Agreement which requires the calculation of the Fixed Charge Coverage Ratio, the First Lien Net Leverage Ratio, the Senior Secured Net Leverage Ratio or the Total Net Leverage Ratio, (b) determining compliance with any provision of this Agreement which requires that no Default or Event of Default has occurred, is continuing or would result therefrom, (c) determining compliance with any provision of this Agreement which requires compliance with any representations and warranties set forth herein or (d) testing availability under baskets set forth in this Agreement (including baskets measured as a Qualified Receivables Financing computed percentage of Consolidated EBITDA), in each case in connection with a Limited Condition Transaction, the date of determination of such ratio or other provisions, determination of whether any Default or Event of Default has occurred, is continuing or would result therefrom, determination of compliance with any representations or warranties or the availability under any baskets shall, at the option of the Administrative Borrower (the Administrative Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”, which LCT Election may be in respect of one or more of clauses (a), (b), (c) and (d) above), be deemed to be the date the definitive agreements (or other relevant definitive documentation) for such Limited Condition Transaction are entered into (the “LCT Test Date”). If on a pro forma basis after giving effect to such Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence or issuance of Indebtedness, Disqualified Equity Interests or Preferred Stock and the use of proceeds thereof), with such ratios and other provisions calculated as if such Limited Condition Transaction or other transactions had occurred at the beginning of the most recent Test Period ending prior to the LCT Test Date for which internal financial statements are available (as determined in good faith by the Administrative Borrower), the Parent Borrower could have taken such action on the relevant LCT Test Date in compliance with the applicable ratios, default provisions or other provisions, such ratios, default provisions or other provisions shall be computed based upon deemed to have been complied with on such date. For the average daily balance avoidance of doubt, (i) if, following the LCT Test Date, any of such Indebtedness during ratios, default provisions or other provisions are exceeded or breached as a result of fluctuations in such ratio (including due to fluctuations in Consolidated EBITDA or other components of such ratio (including due to fluctuations of the applicable period; and
(5Target of any Limited Condition Transaction, including its cash and Cash Equivalents or the amount of such Indebtedness)) or other provisions at or prior to the extent consummation of the relevant Limited Condition Transaction, such ratios, default provisions or other provisions will not already covered abovebe deemed to have been exceeded or failed to have been satisfied as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction is permitted hereunder and (ii) such ratios and compliance with such conditions shall not be tested at the time of consummation of such Limited Condition Transaction or related Specified Transactions. If the Administrative Borrower has made an LCT Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio, basket availability or compliance with any other provision hereunder on or following the relevant LCT Test Date and prior to the earliest of the date on which such Limited Condition Transaction is consummated and the date that the definitive agreement for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such calculation may include adjustments ratio, basket or compliance with any other provision hereunder shall be calculated in accordance with Regulation S-X under the Securities Act. Any on a pro forma calculation may includebasis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence or issuance of Indebtedness, without limitationDisqualified Equity Interests or Preferred Stock, (1and the use of proceeds thereof) adjustments calculated in accordance with Regulation S-X under had been consummated on the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”)LCT Test Date; provided that for purposes of any such adjustments that consist calculation of reductions in costs and other operating improvements or synergies shall the Fixed Charges Coverage Ratio, Fixed Charges will be calculated using an assumed interest rate for the Indebtedness to be incurred in accordance withconnection with such Limited Condition Transaction based on the indicative interest margin contained in any financing commitment documentation with respect to such Indebtedness or, and satisfy if no such indicative interest margin exists, as reasonably determined by the requirements specified in, the definition of “Pro Forma Cost SavingsAdministrative Borrower in good faith.”
Appears in 3 contracts
Samples: First Lien Credit Agreement (Option Care Health, Inc.), First Lien Credit Agreement (Option Care Health, Inc.), First Lien Credit Agreement (Option Care Health, Inc.)
Pro Forma Calculations. (a) Notwithstanding anything to the contrary herein (subject to Section 1.02(j))herein, financial ratios and tests, including the First Lien Net Leverage Ratio, the Total Secured Net Leverage Ratio and the Fixed Charge Coverage Ratio Total Net Leverage Ratio, and compliance with covenants determined by reference to Consolidated Net Tangible Assets EBITDA or Total Assets, shall be calculated (including for purposes of Sections 2.14 and 2.15) on a Pro Forma Basis with respect to each Specified Transaction occurring during in the applicable four quarter period to which such calculation relatesmanner prescribed by this Section 1.06; provided, and/or subsequent that notwithstanding anything to the end contrary in clauses (b), (c), (d) or (e) of such four-quarter period but not later than the date of such calculation; provided that notwithstanding the foregoingthis Section 1.06, (A) when calculating the First Lien Net Leverage Ratio any such ratio or test for purposes of (i) determining the applicable percentage definition of Excess Cash Flow for purposes of Section 2.05(b)“Applicable Rate”, and (ii) Section 6.12 (other than for the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) purpose of determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with Section 6.12), the Financial Covenant, any Specified Transaction and any related adjustment contemplated events described in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) this Section 1.06 that occurred subsequent to the end of the applicable four quarter period Test Period shall not be given Pro Forma EffectEffect and cash and Permitted Investments included on the consolidated balance sheet of Holdings and its Restricted Subsidiaries as of the date of the event for which the calculation of any such ratio is made shall be taken into account in lieu of cash or Permitted Investments as of the last day of the relevant Test Period and (B) when calculating any such ratio or test for purposes of the incurrence of any Indebtedness, cash and Permitted Investments resulting from the incurrence of any such Indebtedness shall be excluded from the pro forma calculation of any applicable ratio or test. For In addition, whenever a financial ratio or test is to be calculated on a Pro Forma Basis, the reference to the “Test Period” for purposes of calculating such financial ratio or test shall be deemed to be a reference to, and shall be based on, the most recently ended Test Period for which internal financial statements of Holdings are available (as determined in good faith by the Borrower) (it being understood that for purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with Section 6.12, if no Test Period with an applicable level cited in Section 6.12 has passed, the Financial Covenantapplicable level shall be the level for the first Test Period cited in Section 6.12 with an indicated level).
(b) For purposes of calculating any financial ratio or test or compliance with any covenant determined by reference to Consolidated EBITDA or Total Assets, Specified Transactions (xwith any incurrence or repayment of any Indebtedness in connection therewith to be subject to clause (d) of this Section 1.06) that (i) have been made during the applicable Test Period or (ii) if applicable as described in clause (a) above, have been made subsequent to such Test Period and prior to or substantially concurrently with the event for which the calculation of any such ratio is made shall be calculated on a Pro Forma Basis assuming that all such Specified Transactions (and any increase or decrease in Consolidated EBITDA, Total Assets and the component financial definitions used therein attributable to any Specified Transaction) had occurred on the first day of the applicable Test Period (or, in the case of Total Assets, on the last day of the applicable Test Period). If since the beginning of any applicable Test Period any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into Holdings or any of its Restricted Subsidiaries since the beginning of such compliance Test Period shall have made any Specified Transaction that would have required after delivery of adjustment pursuant to this Section 1.06, then such financial statements for the fiscal quarter ending on ratio or about June 30, 2014, such test (or Total Assets) shall be calculated to give Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) Effect thereto in accordance with this Section 6.01, or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savings1.06.”
Appears in 3 contracts
Samples: Credit Agreement (Select Medical Corp), Credit Agreement (Select Medical Corp), Credit Agreement (Select Medical Corp)
Pro Forma Calculations. (a) Notwithstanding anything to the contrary herein (subject to Section 1.02(j))herein, Adjusted EBITDA, EBITDA, Consolidated Net Income and any financial ratios or tests, including the First Lien Net Leverage Ratio, the Total Secured Net Leverage Ratio and the Fixed Charge Coverage Ratio and Consolidated Total Net Tangible Assets Leverage Ratio, shall be calculated (including for purposes of Sections 2.14 and 2.15) on a Pro Forma Basis with respect to each Specified Transaction occurring during in the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four-quarter period but not later than the date of such calculationmanner prescribed by this Section 1.08; provided that notwithstanding anything to the foregoingcontrary in clauses (b), (c) or (d) of this Section 1.08, when calculating the First Lien Total Net Leverage Ratio for purposes of (i) determining the applicable percentage of Excess Cash Flow for purposes of Section 2.05(b), (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or Compliance, compliance on a Pro Forma BasisBasis or determining compliance giving Pro Forma Effect to a transaction) with Section 7.01, the Financial Covenant, any Specified Transaction and any related adjustment contemplated events described in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) this Section 1.08 that occurred subsequent to the end of the applicable four quarter period Test Period shall not be given Pro Forma Effect. .
(b) For purposes of determining compliance with calculating Adjusted EBITDA, EBITDA, Consolidated Net Income and any provision of this Agreement which requires Pro Forma Compliance with financial ratios or tests, including the Financial Covenant, (x) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio, the Secured Net Leverage Ratio permitted and the Total Net Leverage Ratio, Specified Transactions (and the incurrence or repayment of any Indebtedness in connection therewith, subject to clause (d) of this Section 1.08) that have been made (i) during the applicable Test Period or (ii) subsequent to such Test Period and prior to or simultaneously with the event for which the calculation of Adjusted EBITDA, EBITDA, Consolidated Net Income or any such ratio is made shall be calculated on a Pro Forma Basis assuming that all such Specified Transactions (and any increase or decrease in Adjusted EBITDA, EBITDA, Consolidated Net Income and the component financial definitions used therein attributable to any Specified Transaction) had occurred on the first day of the applicable Test Period.
(c) Whenever Pro Forma Effect is to be given to a Specified Transaction, the pro forma calculations shall be made in good faith by a Responsible Officer of the Parent Borrower and may include, for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01avoidance of doubt, or (y) in the case amount of any such compliance required prior to the delivery referred to cost savings, operating expense reductions and synergies described in clause (xg) aboveof “Adjusted EBITDA”; provided that (A) such amounts are reasonably identifiable and factually supportable (in the good faith determination of the Parent Borrower), (B) such actions are taken, committed to be taken or expected to be taken no later than twenty-four (24) months after the date of such Specified Transaction, (C) no amounts shall be added pursuant to this clause (c) to the extent duplicative of any amounts that are otherwise added back in computing Adjusted EBITDA or EBITDA, whether through a pro forma adjustment or otherwise, with respect to such period and (D) it is understood and agreed that, subject to compliance with the other provisions of this Section 1.08(c), amounts to be included in pro forma calculations pursuant to this Section 1.08(c) may be included in Test Periods in which the Specified Transaction to which such amounts relate to is no longer being given Pro Forma Compliance shall be determined Effect pursuant to Section 1.08(b).
(d) In the event that the Parent Borrower or any Restricted Subsidiary incurs (including by reference to assumption or guarantees) or repays (including by repurchase, redemption, repayment, retirement or extinguishment) any Indebtedness included in the maximum calculations of the First Lien Net Leverage Ratio, the Secured Net Leverage Ratio permitted for and the fiscal quarter ending June 30Total Net Leverage Ratio, 2014. With respect to any provision of this Agreement as the case may be (in each case, other than Indebtedness incurred or repaid under any revolving credit facility in the provisions ordinary course of Section 6.02(abusiness for working capital purposes), (i) during the applicable Test Period or Section 7.08(ii) that requires compliance subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then the First Lien Net Leverage Ratio, the Secured Net Leverage Ratio and the Total Net Leverage Ratio shall be calculated giving Pro Forma Compliance with Effect to such incurrence or repayment of Indebtedness, to the Financial Covenantextent required, such compliance or Pro Forma Compliance shall be required regardless as if the same had occurred on the last day of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such timeapplicable Test Period. For purposes of making any computation referred to above:
(1) if If any Indebtedness bears a floating rate of interest and is being given pro forma effectPro Forma Effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition such calculation is being made had been the applicable rate for the entire period (taking into account any Swap Contracts Agreement applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 monthsIndebtedness);
(2) interest . Interest on a Capitalized Capital Lease Obligation Obligations shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer Responsible Officer of the Parent Borrower Representative to be the rate of interest implicit in such Capitalized Capital Lease Obligation in accordance with GAAP;
(3) interest . Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered Eurodollar rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Parent Borrower Representative may designate; and.
(4e) interest On and after the date Pro Forma Effect is to be given to a Limited Condition Transaction and on which the Parent Borrower or any Indebtedness under Restricted Subsidiary is incurring or deemed to be incurring Indebtedness, which Limited Condition Transaction has yet to be consummated but for which a revolving credit facility or a Qualified Receivables Financing computed definitive agreement governing such Limited Condition Transaction has been executed and remains in effect, any ratio based conditions and baskets (including baskets that are determined on a pro forma the basis of Adjusted EBITDA) shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue required to be applicable to satisfied assuming both that such Limited Condition Transaction has been consummated and the Reference Period (as defined related Indebtedness incurred and that such Limited Condition Transaction has not been consummated and the related Indebtedness has not been incurred, in the definition of “Pro Forma Basis”); provided that any each case until such adjustments that consist of reductions in costs and other operating improvements Limited Condition Transaction is consummated or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savingssuch definitive agreement is terminated.”
Appears in 3 contracts
Samples: Master Amendment (Krispy Kreme, Inc.), Credit Agreement (Krispy Kreme, Inc.), Credit Agreement (Krispy Kreme, Inc.)
Pro Forma Calculations. (a) Notwithstanding anything to the contrary herein (subject to Section 1.02(j))herein, the First Lien Net Senior Secured Leverage Ratio, the Total Net Leverage Ratio and the Fixed Charge Interest Coverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 and 2.15) on a Pro Forma Basis with respect to each Specified Transaction occurring during in the applicable four quarter period to which such calculation relatesmanner prescribed by this Section 1.10; provided that, and/or subsequent notwithstanding anything to the end of such four-quarter period but not later than the date of such calculation; provided that notwithstanding the foregoingcontrary herein, when calculating any such ratio for the First Lien Net Leverage Ratio for purposes of (i) determining the applicable percentage of Excess Cash Flow for purposes of Section 2.05(b), (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenant, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions purpose of the definition of Consolidated EBITDAApplicable Rate, any mandatory prepayment provision hereunder or compliance with Section 7.07, the events set forth in clauses (b), (c) and (d) below that occurred subsequent to the end of the applicable four quarter period Test Period shall not be given Pro Forma Effect. pro forma effect.
(b) For purposes of determining compliance with any provision of this Agreement which requires calculating the Net Senior Secured Leverage Ratio, the Total Net Leverage Ratio and the Interest Coverage Ratio, Pro Forma Compliance Transactions (and the incurrence or repayment of any Indebtedness in connection therewith) that have been consummated (i) during the applicable period of four (4) consecutive Fiscal Quarters for which such financial ratio is being determined (the “Test Period”) or (ii) subsequent to such Test Period and prior to or simultaneously with the Financial Covenant, (x) in event for which the case calculation of any such compliance required after delivery of financial statements for the fiscal quarter ending ratio is made, shall be calculated on or about June 30, 2014, a pro forma basis assuming that all such Pro Forma Compliance Transactions (and any increase or decrease in Consolidated Adjusted EBITDA and the component financial definitions used therein attributable to any Pro Forma Transaction) had occurred on the first day of the applicable Test Period.
(c) Whenever pro forma effect is to be given to a Pro Forma Transaction, the pro forma calculations shall be determined made in good faith by reference a financial or accounting Responsible Officer of the Company and may include, for the avoidance of doubt, the amount of synergies and cost savings projected by the Company from actions taken or expected to be taken during the 12-month period following the date of such Pro Forma Transaction, net of the amount of actual benefits theretofore realized during such period from such actions; provided that (i) such amounts are reasonably identifiable, quantifiable and factually supportable in the good faith judgment of the Company, (ii) no amounts shall be added pursuant to this clause (c) to the maximum First Lien extent duplicative of any amounts that are otherwise added back in computing Consolidated Adjusted EBITDA, whether through a pro forma adjustment or otherwise, with respect to such period and (iii) the aggregate amount of cost savings and synergies added pursuant to this clause (c) for any such period, together with any addback to Consolidated Adjusted EBITDA pursuant to paragraph (f) thereof, during any such period, shall not exceed 15% of Consolidated Adjusted EBITDA for such period, calculated without giving effect to any adjustment pursuant to this clause (c) or paragraph (f) of the definition of Consolidated Adjusted EBITDA. Nothing in this clause (c) shall limit any adjustment to Consolidated Adjusted EBITDA permitted pursuant to clause (y) of the proviso to paragraph (f) of the definition of Consolidated Adjusted EBITDA.
(d) In the event that the Company or any Subsidiary incurs (including by assumption or guarantees) or repays (including by redemption, repayment, retirement or extinguishment) any Indebtedness included in the calculations of the Net Senior Secured Leverage Ratio or the Total Net Leverage Ratio permitted (other than Indebtedness incurred or repaid under any revolving credit facility in the ordinary course of business for working capital purposes), subsequent to the fiscal quarter most recently then ended end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then the Net Senior Secured Leverage Ratio or the Total Net Leverage Ratio, as applicable, shall be calculated giving pro forma effect to such incurrence or repayment of Indebtedness, to the extent required, as if the same had occurred on the last day of the applicable Test Period.
(e) All ratios and other financial metrics, including, without limitation, “Total Assets”, “Consolidated Tangible Assets”, “Total Net Leverage Ratio”, and “Net Senior Secured Leverage Ratio”, shall be calculated based on the then-most recent financial statements have been delivered (or were required to have been delivered) in accordance with pursuant to Section 6.01, 6.01(a) or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 monthsb);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savings.”
Appears in 3 contracts
Samples: Refinancing Amendment (Hologic Inc), Refinancing Amendment (Hologic Inc), Credit and Guaranty Agreement (Hologic Inc)
Pro Forma Calculations. Notwithstanding anything (a) With respect to any period during which the contrary herein (subject Transactions or any Specified Transaction occurs, for purposes of determining the prepayments required pursuant to Section 1.02(j))2.11(c) or Section 2.11(d) permissibility of asset sales, the First Lien Net Leverage Ratio, the Total Net Leverage Ratio and the Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets shall be calculated compliance with any test contained in this Agreement (including any incurrence test) or for any other specified purpose hereunder (including for purposes of Sections 2.14 determining the Applicable Margin in respect of any period), calculation of the First Lien Leverage Ratio, Consolidated EBITDA, Consolidated Total Assets and 2.15) on a Pro Forma Basis the Total Leverage Ratio or for any other purpose hereunder, such determinations and calculations with respect to each Specified Transaction occurring during the applicable four quarter such period to which such calculation relates, and/or subsequent to the end of such four-quarter period but not later than the date of such calculation; provided that notwithstanding the foregoing, when calculating the First Lien Net Leverage Ratio for purposes of (i) determining the applicable percentage of Excess Cash Flow for purposes of Section 2.05(b), (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance shall be made on a Pro Forma Basis.
(b) with the Financial Covenant, Notwithstanding anything in this Agreement or any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent Loan Document to the end of the applicable four quarter period shall not be given Pro Forma Effect. For contrary, in connection with any action being taken in connection with a Limited Condition Transaction, for purposes of of:
(i) determining compliance with any provision of this Agreement which requires Pro Forma Compliance (including the determination of compliance with the Financial Covenantrepresentations, (x) in the case of warranties or any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01, or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any other provision of this Agreement (other than the provisions which requires no Default or Event of Section 6.02(a) Default has occurred or Section 7.08) that requires compliance is continuing or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:would result therefrom); or
(1ii) if calculating any Indebtedness bears ratio or testing availability under baskets set forth in this Agreement (including the Available Amount or any other baskets (including incremental facilities or any baskets measured as a floating rate percentage of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 monthsConsolidated EBITDA or Consolidated Total Assets));
(2iii) interest on in each case, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), the date of determination of whether any such action is permitted hereunder (including the determination of any such ratio, amount or availability of the Available Amount, or any other basket and the determination of the accuracy of any representation or warranty or whether a Capitalized Lease Obligation Default or Event of Default has occurred, is continuing or would result therefrom, or other applicable covenant) shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of be the date the definitive agreement for such Limited Condition Transaction is entered into (the “LCT Test Date”), and if, after giving pro forma effect to the Limited Condition Transaction, the Borrower Representative or any of its Restricted Subsidiaries would have been permitted to be take such action on the rate of interest implicit relevant LCT Test Date in compliance with such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime ratio, test or similar ratebasket, a eurocurrency interbank offered ratesuch ratio, test or other rate, basket shall be deemed to have been based upon complied with. For the rate actually chosen, oravoidance of doubt, if nonethe Borrower has made an LCT Election and any of the ratios, tests or baskets for which compliance was determined or tested as of the LCT Test Date would have failed to have been satisfied as a result of fluctuations in any such ratio, test or basket, including due to fluctuations in Consolidated EBITDA or Consolidated Total Assets, at or prior to the consummation of the relevant transaction or action, such baskets, tests or ratios will not be deemed to have failed to have been satisfied as a result of such fluctuations. If the Borrower has made an LCT Election for any Limited Condition Transaction, then based upon in connection with any event or transaction occurring after the relevant LCT Test Date and prior to the earlier of the date on which such optional rate chosen Limited Condition Transaction is consummated or the date that the definitive agreement or date for redemption, repurchase, defeasance, satisfaction and discharge or repayment specified in an irrevocable notice for such Limited Condition Transaction is terminated, expires or passes, as the Borrower Representative may designate; and
applicable, without consummation of such Limited Condition Transaction (4a “Subsequent Transaction”) interest on any Indebtedness under in connection with which a revolving credit facility ratio, test or a Qualified Receivables Financing computed basket availability calculation must be made on a Pro Forma Basis or giving pro forma basis shall be computed based upon the average daily balance effect to such Subsequent Transaction, for purposes of determining whether such Indebtedness during the applicable period; and
(5) to the extent not already covered aboveratio, test or basket availability has been complied with under this Agreement, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may includeratio, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements test or synergies basket shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “(x) on a Pro Forma Cost SavingsBasis assuming such Limited Condition Transaction and other transactions in connection therewith have been consummated and (y) for Restricted Payments only, without giving effect to such Limited Condition Acquisition.”
Appears in 3 contracts
Samples: Credit Agreement (Micro Focus International PLC), Credit Agreement (Seattle SpinCo, Inc.), Credit Agreement (Micro Focus International PLC)
Pro Forma Calculations. Notwithstanding anything to the contrary herein (subject to Section 1.02(j))contained herein, all calculations of the First Lien Net Consolidated Leverage Ratio, the Total Consolidated Net Leverage Ratio and the Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 determining the Applicable Rate), the Consolidated Senior Secured Leverage Ratio and 2.15) the Consolidated Interest Coverage Ratio shall be made on a Pro Forma Basis with respect to each all Specified Transaction Transactions occurring during the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four-four quarter period but not later than the date of such calculation; provided that provided, that, notwithstanding the foregoing, when calculating the First Lien Consolidated Net Leverage Ratio and/or the Consolidated Interest Coverage Ratio for purposes of determining (iy) determining the applicable percentage of Excess Cash Flow for purposes of compliance with Section 2.05(b), 8.11 and/or (iiz) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenant, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four quarter period shall not be given Pro Forma Effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenantany financial covenant set forth in Section 8.11 (or satisfaction of a required ratio by reference to any financial covenant set forth in Section 8.11), (x) in the case of any such compliance required (or satisfaction) determined after delivery of financial statements for the fiscal quarter ending on or about June September 30, 20142019, such Pro Forma Compliance (or satisfaction) shall be determined by reference to the maximum First Lien Consolidated Net Leverage Ratio and/or minimum Consolidated Interest Coverage Ratio, as applicable, permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.017.01(a) or (b), or (y) in the case of any such compliance required (or satisfaction) determined prior to the delivery referred to in clause (x) above, such Pro Forma Compliance (or satisfaction) shall be determined by reference to the maximum First Lien Consolidated Net Leverage Ratio and/or minimum Consolidated Interest Coverage Ratio, as applicable, permitted for the fiscal quarter ending June September 30, 20142019. With respect Notwithstanding anything to the contrary herein, for purposes of calculating the Consolidated Leverage Ratio, the Consolidated Net Leverage Ratio, the Consolidated Senior Secured Leverage Ratio and the Consolidated Interest Coverage Ratio at any provision time prior to the first delivery of this Agreement (other than the provisions of financial statements pursuant to Section 6.02(a7.01(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant(b), such compliance or Pro Forma Compliance calculation shall be required regardless determined based on the pro forma consolidated financial statements of whether the Lux Borrower is otherwise required Parent and its Subsidiaries delivered to comply the Administrative Agent prior to the Closing Date (and posted on SyndTrak for the Lenders) and thereafter, based on the most recent financial statements delivered pursuant to Section 7.01(a) or (b). In connection with such covenant under any calculation of the terms of Section 7.08 at such time. For Consolidated Net Leverage Ratio for purposes of making any computation referred to above:
(1) if determining the permissibility of the incurrence of any Indebtedness bears a floating rate of interest and or any other transaction in connection with which Indebtedness is being given pro forma effectincurred, (i) the interest on proceeds of such Indebtedness shall not be calculated counted as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period unrestricted cash and Cash Equivalents, and (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2ii) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon being repaid with the average daily balance proceeds of such Indebtedness during substantially concurrently with the applicable period; and
(5) to the extent incurrence thereof shall not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savingsconsidered outstanding.”
Appears in 2 contracts
Samples: Credit Agreement (Enpro Industries, Inc), Credit Agreement (Enpro Industries, Inc)
Pro Forma Calculations. Notwithstanding anything to the contrary herein contained herein, all calculations of the Consolidated Leverage Ratio (subject to Section 1.02(j)including for purposes of determining the Applicable Rate), the First Lien Net Leverage Ratio, the Total Consolidated Net Leverage Ratio and the Fixed Charge Consolidated Interest Coverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 and 2.15) made on a Pro Forma Basis with respect to each all Specified Transaction Transactions occurring during the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four-four quarter period but not later than the date of such calculation; provided that provided, that, notwithstanding the foregoing, when calculating the First Lien Consolidated Leverage Ratio, the Consolidated Net Leverage Ratio and/or the Consolidated Interest Coverage Ratio for purposes of determining (iy) determining the applicable percentage of Excess Cash Flow for purposes of compliance with Section 2.05(b), 8.11 and/or (iiz) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenant, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four quarter period shall not be given Pro Forma Effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenantany financial covenant set forth in Section 8.11 (or satisfaction of a required ratio by reference to any financial covenant set forth in Section 8.11), (x) in the case of any such compliance required (or satisfaction) determined after delivery of financial statements for the fiscal quarter ending on or about June September 30, 2014, such Pro Forma Compliance (or satisfaction) shall be determined by reference to the maximum First Lien Consolidated Net Leverage Ratio and/or minimum Consolidated Interest Coverage Ratio, as applicable, permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.017.01(a) or (b), or (y) in the case of any such compliance required (or satisfaction) determined prior to the delivery referred to in clause (x) above, such Pro Forma Compliance (or satisfaction) shall be determined by reference to the maximum First Lien Consolidated Net Leverage Ratio and/or minimum Consolidated Interest Coverage Ratio, as applicable, permitted for the fiscal quarter ending June September 30, 2014. With respect Notwithstanding anything to the contrary herein, for purposes of calculating the Consolidated Leverage Ratio, the Consolidated Net Leverage Ratio and the Consolidated Interest Coverage Ratio at any provision time prior to the first delivery of this Agreement (other than the provisions of financial statements pursuant to Section 6.02(a7.01(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant(b), such compliance or Pro Forma Compliance calculation shall be required regardless of whether determined based on the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effectconsolidated financial statements of the Parent and its Subsidiaries delivered to the Administrative Agent prior to the Closing Date (and posted on SyndTrak for the Lenders) and thereafter, the interest on such Indebtedness shall be calculated as if the rate in effect based on the date for which a determination under this definition is made had been the applicable rate for the entire period most recent financial statements delivered pursuant to Section 7.01(a) or (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 monthsb);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savings.”
Appears in 2 contracts
Samples: Credit Agreement (Enpro Industries, Inc), Credit Agreement (Enpro Industries, Inc)
Pro Forma Calculations. Notwithstanding anything herein to the contrary herein (subject to Section 1.02(j))contrary, any calculation of the First Lien Consolidated Total Net Leverage Ratio, the Total Consolidated Interest Coverage Ratio, Consolidated Senior Secured Net Leverage Ratio or Consolidated EBITDA (for calculating any ratio) for any Reference Period (x) during which an event for which such calculation is made shall have occurred or (y) subsequent to such Reference Period and prior to or simultaneously with the Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets event for which such calculation is made shall in each case be calculated (including for purposes of Sections 2.14 and 2.15) made on a Pro Forma Basis with respect to each Specified Transaction occurring during the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four-quarter period but not later than the date of such calculation; provided that notwithstanding the foregoing, when calculating the First Lien Net Leverage Ratio for purposes of making the following determinations:
(i) determining the applicable percentage of Excess Cash Flow for purposes of Section 2.05(b), (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenant, any Specified Transaction and any related adjustment contemplated in pricing level under the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) “Applicable Rate;” provided that events that occurred subsequent to the end of the applicable four quarter period Reference Period shall not be given Pro Forma Effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenant, pro forma effect;
(xii) except in the case of any such subsection (iv) of this Section 1.03(c), determining compliance required after delivery of financial statements for with the fiscal quarter ending on or about June 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Consolidated Total Net Leverage Ratio permitted for and the fiscal quarter most recently then ended for which financial statements have been delivered (or were required Consolidated Interest Coverage Ratio; provided that, solely with respect to have been delivered) in accordance determining compliance with Section 6.017.18, or (y) in the case of any such compliance required prior events that occurred subsequent to the delivery referred to in clause (x) above, such Pro Forma Compliance end of the applicable Reference Period shall not be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2iii) interest calculating availability under the basket set forth in Section 2.16(a) based on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer the Consolidated EBITDA of the Borrower Representative to be and its Restricted Subsidiaries for the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designateapplicable Reference Period; and
(4iv) interest on determining whether the conditions precedent have been satisfied for a proposed transaction, including any Indebtedness under a revolving credit facility calculation of the Consolidated Senior Secured Net Leverage Ratio or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance Consolidated Total Net Leverage Ratio for purposes of such Indebtedness during Section 2.16(a), and any determination of whether an Event of Default will result from the applicable period; and
(5) to the extent not already covered aboveconsummation thereof, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may includeincluding, without limitation, (1) adjustments calculated any Disposition or any Investment which results in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savingsan Acquisition.”
Appears in 2 contracts
Samples: Credit Agreement (Acadia Healthcare Company, Inc.), Credit Agreement (Acadia Healthcare Company, Inc.)
Pro Forma Calculations. (a) Notwithstanding anything to the contrary herein (subject to Section 1.02(j))herein, financial ratios and tests, including the First Lien Net Leverage Ratio, the Total Secured Net Leverage Ratio and the Fixed Charge Coverage Ratio Total Net Leverage Ratio, and compliance with covenants determined by reference to Consolidated Net Tangible Assets EBITDA or Total Assets, shall be calculated (including for purposes of Sections 2.14 and 2.15) on a Pro Forma Basis with respect to each Specified Transaction occurring during in the applicable four quarter period to which such calculation relatesmanner prescribed by this Section 1.07; provided, and/or subsequent that notwithstanding anything to the end contrary in clauses (b), (c), (d) or (f) of such four-quarter period but not later than the date of such calculation; provided that notwithstanding the foregoingthis Section 1.07, (A) when calculating the First Lien Net Leverage Ratio any such ratio or test for purposes of (i) determining the applicable percentage definition of Excess Cash Flow for purposes of Section 2.05(b)“Applicable Rate”, and (ii) Section 6.12 (other than for the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) purpose of determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with Section 6.12), the Financial Covenant, any Specified Transaction and any related adjustment contemplated events described in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) this Section 1.07 that occurred subsequent to the end of the applicable four quarter period Test Period shall not be given Pro Forma EffectEffect and cash and Permitted Investments included on the consolidated balance sheet of the Borrower and its Restricted Subsidiaries as of the date of the event for which the calculation of any such ratio is made shall be taken into account in lieu of cash or Permitted Investments as of the last day of the relevant Test Period and (B) when calculating any such ratio or test for purposes of the incurrence of any Indebtedness, cash and Permitted Investments resulting from the incurrence of any such Indebtedness shall be excluded from the pro forma calculation of any applicable ratio or test. For In addition, whenever a financial ratio or test is to be calculated on a Pro Forma Basis, the reference to the “Test Period” for purposes of calculating such financial ratio or test shall be deemed to be a reference to, and shall be based on, the most recently ended Test Period for which internal financial statements of the Borrower are available (as determined in good faith by the Borrower) (it being understood that for purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with Section 6.12, if no Test Period with an applicable level cited in Section 6.12 has passed, the Financial Covenantapplicable level shall be the level for the first Test Period cited in Section 6.12 with an indicated level).
(b) For purposes of calculating any financial ratio or test or compliance with any covenant determined by reference to Consolidated EBITDA or Total Assets, Specified Transactions (xwith any incurrence or repayment of any Indebtedness in connection therewith to be subject to clause (d) of this Section 1.07) that (i) have been made during the applicable Test Period or (ii) if applicable as described in clause (a) above, have been made subsequent to such Test Period and prior to or substantially concurrently with the event for which the calculation of any such ratio is made shall be calculated on a Pro Forma Basis assuming that all such Specified Transactions (and any increase or decrease in Consolidated EBITDA, Total Assets and the component financial definitions used therein attributable to any Specified Transaction) had occurred on the first day of the applicable Test Period (or, in the case of Total Assets, on the last day of the applicable Test Period). If since the beginning of any applicable Test Period any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Borrower or any of its Restricted Subsidiaries since the beginning of such compliance Test Period shall have made any Specified Transaction that would have required after delivery of adjustment pursuant to this Section 1.07, then such financial statements for the fiscal quarter ending on ratio or about June 30, 2014, such test (or Total Assets) shall be calculated to give Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) Effect thereto in accordance with this Section 6.01, or 1.07.
(yc) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Whenever Pro Forma Compliance Effect is to be given to a Specified Transaction, the pro forma calculations shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate made in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined good faith by a responsible financial or accounting officer of the Borrower Representative and, in the case of any “Test Period” determined by reference to internal financial statements of the Borrower (as opposed to the financial statements most recently delivered pursuant to Section 5.01(a) or Section 5.01(b)), as set forth in a certificate of a responsible financial or accounting officer of the Borrower (with supporting calculations), and may include, for the avoidance of doubt, the amount of “run-rate” cost savings, operating expense reductions and synergies resulting from or relating to, any Specified Transaction (including the Transactions) to the extent permitted by the definition of “Consolidated EBITDA.”
(d) In the event that the Borrower or any Restricted Subsidiary incurs (including by assumption or guarantees) or repays (including by repurchase, redemption, repayment, retirement, discharge, defeasance or extinguishment) any Indebtedness (in each case, other than Indebtedness incurred or repaid (other than Indebtedness incurred or repaid (other than any repayment from the proceeds of other Indebtedness) under any revolving credit facility unless such Indebtedness has been permanently repaid and not replaced)) subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then such financial ratio or test shall be calculated giving Pro Forma Effect to such incurrence, assumption, guarantee, repurchase, redemption, repayment, retirement, discharge, defeasance or extinguishment of Indebtedness, or such issuance, repurchase or redemption of Disqualified Stock, in each case to the extent required, as if the same had occurred on the last day of the applicable Test Period.
(e) [Reserved]
(f) As relates to any action being taken solely in connection with a Limited Condition Transaction, for purposes of:
(i) determining compliance with any provision of this Agreement (other than the Financial Covenant) which requires the calculation of any financial ratio or test, including the First Lien Net Leverage Ratio, Secured Net Leverage Ratio and Total Net Leverage Ratio, or
(ii) testing availability under baskets set forth in this Agreement (including baskets determined by reference to Consolidated EBITDA or Total Assets), in each case, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), the date of determination of whether any such action is permitted hereunder shall be deemed to be the rate date the definitive agreements for such Limited Condition Transaction are entered into (the “LCT Test Date”), and if, after giving Pro Forma Effect to the Limited Condition Transaction (and the other transactions to be entered into in connection therewith, including any incurrence of interest implicit Indebtedness and the use of proceeds thereof, as if they had occurred on the first day of the most recent Test Period ending prior to the LCT Test Date (except with respect to any incurrence or repayment of Indebtedness for purposes of the calculation of any leverage-based test or ratio, which shall in each case be treated as if they had occurred on the last day of such Capitalized Lease Obligation Test Period)), the Borrower or any of its Restricted Subsidiaries would have been permitted to take such action on the relevant LCT Test Date in accordance compliance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime such ratio, test or similar ratebasket, a eurocurrency interbank offered ratesuch ratio, test or other rate, basket shall be deemed to have been based upon complied with; provided that if financial statements for one or more subsequent fiscal periods shall have become available, the rate actually chosenBorrower may elect, orin its sole discretion, to redetermine all such ratios, tests or baskets on the basis of such financial statements, in which case, such date of redetermination shall thereafter be deemed to be the applicable LCT Test Date. For the avoidance of doubt, if nonethe Borrower has made an LCT Election and any of the ratios, tests or baskets for which compliance was determined or tested as of the LCT Test Date would have failed to have been complied with as a result of fluctuations in any such ratio, test or basket, including due to fluctuations in Consolidated EBITDA or Total Assets of the Borrower or the Person subject to such Limited Condition Transaction, at or prior to the consummation of the relevant transaction or action, such baskets, tests or ratios will not be deemed to have failed to have been complied with as a result of such fluctuations. If the Borrower has made an LCT Election for any Limited Condition Transaction, then based upon in connection with any calculation of any ratio, test or basket availability with respect to the incurrence of Indebtedness or Liens, the making of Restricted Payments, the making of any Investment, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of the Borrower, the prepayment, redemption, purchase, defeasance or other satisfaction of Indebtedness, or the designation of an Unrestricted Subsidiary (each, a “Subsequent Transaction”) following the relevant LCT Test Date and prior to the earlier of the date on which such optional rate chosen as Limited Condition Transaction is consummated or the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility date that the definitive agreement or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance irrevocable notice for such Limited Condition Transaction is terminated or expires without consummation of such Indebtedness during the applicable period; and
(5) to the extent not already covered aboveLimited Condition Transaction, for purposes of determining whether such Subsequent Transaction is permitted under this Agreement, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may includeratio, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated test or basket shall be required to give effect to any be satisfied on a Pro Forma Cost Savings Basis (i) assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated and (3ii) all adjustments described on Schedule 1.01(a) to the extent assuming such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs Limited Condition Transaction and other operating improvements or synergies shall be calculated transactions in accordance with, connection therewith (including any incurrence of Indebtedness and satisfy the requirements specified in, the definition use of “Pro Forma Cost Savingsproceeds thereof) have not been consummated.”
Appears in 2 contracts
Samples: First Lien Credit Agreement (Select Medical Holdings Corp), First Lien Credit Agreement (Select Medical Corp)
Pro Forma Calculations. Notwithstanding anything to the contrary herein (subject to Section 1.02(j))contained herein, all calculations of the First Lien Net Leverage Ratio, the Consolidated Total Net Leverage Ratio and the Consolidated Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 and 2.15) made on a Pro Forma Basis with respect to each all Specified Transaction Transactions occurring during the applicable four quarter period Measurement Period to which such calculation relates, and/or subsequent to the end of such four-quarter period Measurement Period but not later than the date of such calculation; provided that provided, that, notwithstanding the foregoing, when calculating the First Lien Net Consolidated Total Leverage Ratio and/or the Consolidated Fixed Charge Coverage Ratio for purposes of (ix) determining the applicable percentage of Excess Cash Flow for purposes of compliance with Section 2.05(b)7.11, or (iiy) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenantin each case, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four quarter period Measurement Period shall not be given Pro Forma Effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenantany financial covenant set forth in Section 7.11, (x) in the case of any such compliance required after prior to delivery of financial statements for the fiscal quarter ending on November 26, 2016, (i) such Pro Forma Compliance shall be determined by reference to the maximum Consolidated Total Leverage Ratio and/or minimum Consolidated Fixed Charge Coverage Ratio, as applicable, permitted for the fiscal quarter ending November 26, 2016, and (ii) notwithstanding anything to the contrary in this Agreement (e.g. references in the definition of “Measurement Period” to the most recently completed four (4) fiscal quarters of RCI for which RCI was required to deliver financial statements pursuant to Section 6.01(a) or about June 30, 2014Section 6.01(b)), such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01, or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Interim Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost SavingsStatements.”
Appears in 2 contracts
Samples: Credit Agreement (Resources Connection Inc), Credit Agreement (Resources Connection Inc)
Pro Forma Calculations. (a) Notwithstanding anything to the contrary herein herein, financial ratios and tests, including the Total Leverage Ratio, the Secured Leverage Ratio, the Consolidated First Lien Net Leverage Ratio and the Consolidated Cash Interest Coverage Ratio shall be calculated in the manner prescribed by this Section 1.09; provided that notwithstanding anything to the contrary in clauses (subject to Section 1.02(j)b), (c) or (d) of this Section 1.09, when calculating the Consolidated First Lien Net Leverage Ratio, the Total Net Leverage Ratio and the Fixed Charge Consolidated Cash Interest Coverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 and 2.15) on a Pro Forma Basis with respect to Ratio, each Specified Transaction occurring during the applicable four quarter period to which such calculation relatesas applicable, and/or subsequent to the end of such four-quarter period but not later than the date of such calculation; provided that notwithstanding the foregoing, when calculating the First Lien Net Leverage Ratio for purposes of (i) determining the applicable percentage definition of Excess Cash Flow for purposes of Section 2.05(b), “Applicable Rate,” (ii) the definition of “Applicable Rate, ECF Percentage of Excess Cash Flow” and (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with any covenant pursuant to Section 7.11, the Financial Covenant, any Specified Transaction and any related adjustment contemplated events described in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) this Section 1.09 that occurred subsequent to the end of the applicable four quarter period Test Period shall not be given Pro Forma Effectpro forma effect. In addition, whenever a financial ratio or test is to be calculated on a pro forma basis, the reference to the “Test Period” for purposes of calculating such financial ratio or test shall be deemed to be a reference to, and shall be based on, the most recently ended Test Period for which internal financial statements of the Borrower are available (as determined in good faith by the Borrower); provided that, the provisions of this sentence shall not apply for purposes of calculating the Consolidated First Lien Net Leverage Ratio, the Total Leverage Ratio and the Consolidated Cash Interest Coverage Ratio for purposes of the definition of “Applicable Rate,” the definition of “Applicable ECF Percentage of Excess Cash Flow” and determining actual compliance with Section 7.11 (other than for the purpose of determining pro forma compliance with Section 7.11), each of which shall be based on the financial statements delivered pursuant to Section 6.01(a) or (b), as applicable, for the relevant Test Period.
(b) For purposes of determining compliance calculating any financial ratio or test, Specified Transactions (with any provision incurrence or repayment of any Indebtedness in connection therewith to be subject to clause (d) of this Agreement which requires Pro Forma Compliance Section 1.09) that have been made (i) during the applicable Test Period and (ii) if applicable as described in clause (a) above, subsequent to such Test Period and prior to or simultaneously with the Financial Covenantevent for which the calculation of any such ratio is made shall be calculated on a pro forma basis assuming that all such Specified Transactions (and any increase or decrease in Consolidated EBITDA and the component financial definitions used therein attributable to any Specified Transaction) had occurred on the first day of the applicable Test Period. If since the beginning of any applicable Test Period any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Borrower or any of its Restricted Subsidiaries since the beginning of such Test Period shall have made any Specified Transaction that would have required adjustment pursuant to this Section 1.09, then such financial ratio or test shall be calculated to give pro forma effect thereto in accordance with this Section 1.09.
(c) Whenever pro forma effect is to be given to a Specified Transaction, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Borrower and include, for the avoidance of doubt, the amount of “run-rate” cost savings, operating expense reductions and synergies projected by the Borrower in good faith to be realized as a result of specified actions taken, committed to be taken or expected to be taken (calculated on a pro forma basis as though such cost savings, operating expense reductions and synergies had been realized on the first day of such period and as if such cost savings, operating expense reductions and synergies were realized during the entirety of such period) and “run-rate” means the full recurring benefit for a period that is associated with any action taken, committed to be taken or expected to be taken (including any savings expected to result from the elimination of a public target’s compliance costs with public company requirements) net of the amount of actual benefits realized during such period from such actions, and any such adjustments shall be included in the initial pro forma calculations of such financial ratios or tests and during any subsequent Test Period in which the effects thereof are expected to be realized relating to such Specified Transaction; provided that (A) such amounts are reasonably identifiable and factually supportable in the good faith judgment of the Borrower, (xB) such actions have been taken or with respect to which substantial steps have been taken (in the good faith determination of the Borrower) within eighteen (18) months after the date of such Specified Transaction, and (C) no amounts shall be added pursuant to this clause (c) to the extent duplicative of any amounts that are otherwise added back in computing Consolidated EBITDA, whether through a pro forma adjustment or otherwise, with respect to such period; provided that any increase to Consolidated EBITDA as a result of cost savings, operating expense reductions and synergies pursuant to this Section 1.09(c) shall be subject to the limitation set forth in the proviso of clause (viii) of the definition of Consolidated EBITDA.
(d) In the event that the Borrower or any Restricted Subsidiary incurs (including by assumption or guarantees) or repays (including by redemption, repayment, retirement or extinguishment) any Indebtedness included in the calculations of any financial ratio or test (in each case, other than Indebtedness incurred or repaid under any revolving credit facility), (i) during the applicable Test Period or (ii) subject to clause (a) subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then such financial ratio or test shall be calculated giving pro forma effect to such incurrence or repayment of Indebtedness, to the extent required, as if the same had occurred on the last day of the applicable Test Period (or the first day of the applicable Test Period solely in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01, or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:Consolidated Cash Interest Coverage Ratio).
(1e) if If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date of the event for which a determination under this definition the calculation of the Consolidated Cash Interest Coverage Ratio is made had been the applicable rate for the entire period (taking into account any Swap Contracts hedging obligations applicable to such Indebtedness if Indebtedness); provided, in the case of repayment of any Indebtedness, to the extent actual interest related thereto was included during all or any portion of the applicable Test Period, the actual interest may be used for the applicable portion of such Swap Contracts has a remaining term in excess of 12 months);
(2) interest Test Period. Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest . Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency London interbank offered rate, or other rate, shall be deemed determined to have been based upon the rate actually chosen, or, or if none, then based upon such optional rate chosen as the Borrower Representative or Restricted Subsidiary may designate; and.
(4f) interest on At any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a time prior to June 30, 2012, any provision requiring the pro forma basis compliance with Section 7.11 shall be computed based upon made assuming that compliance with the average daily balance of such Indebtedness during Consolidated Cash Interest Coverage Ratio and Total Leverage Ratio set forth in Section 7.11 for the applicable period; and
(5) Test Period ending on June 30, 2012 is required with respect to the extent not already covered above, any most recent Test Period prior to such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savingstime.”
Appears in 2 contracts
Samples: Term Loan Credit Agreement (Prestige Brands Holdings, Inc.), Term Loan Credit Agreement (Prestige Brands Holdings, Inc.)
Pro Forma Calculations. (a) Notwithstanding anything to the contrary herein herein, financial ratios and tests, including the Total Leverage Ratio, the Secured Leverage Ratio, the Consolidated First Lien Net Leverage Ratio and the Consolidated Fixed Charge Coverage Ratio shall be calculated in the manner prescribed by this Section 1.09; provided that notwithstanding anything to the contrary in clauses (subject to Section 1.02(j)b), (c) or (d) of this Section 1.09, when calculating the Consolidated First Lien Net Leverage Ratio, the Total Net Leverage Ratio and the Consolidated Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 and 2.15) on a Pro Forma Basis with respect to Ratio, each Specified Transaction occurring during the applicable four quarter period to which such calculation relatesas applicable, and/or subsequent to the end of such four-quarter period but not later than the date of such calculation; provided that notwithstanding the foregoing, when calculating the First Lien Net Leverage Ratio for purposes of (i) determining the applicable percentage definition of “Applicable ECF Percentage of Excess Cash Flow for purposes of Section 2.05(b), Flow” and (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basiswhether the Payment Condition has been satisfied) with Section 7.11, the Financial Covenant, any Specified Transaction and any related adjustment contemplated events described in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) this Section 1.09 that occurred subsequent to the end of the applicable four quarter period Test Period shall not be given Pro Forma Effectpro forma effect. In addition, whenever a financial ratio or test is to be calculated on a pro forma basis, the reference to the “Test Period” for purposes of calculating such financial ratio or test shall be deemed to be a reference to, and shall be based on, the most recently ended Test Period for which internal financial statements of the Borrower are available (as determined in good faith by the Borrower); provided that, the provisions of this sentence shall not apply for purposes of calculating the Consolidated First Lien Net Leverage Ratio, the Total Leverage Ratio and the Consolidated Fixed Charge Coverage Ratio for purposes of the definition of “Applicable ECF Percentage of Excess Cash Flow” and determining actual compliance with Section 7.11 (and not for the purpose of determining whether the Payment Condition has been satisfied), each of which shall be based on the financial statements delivered pursuant to Section 6.01(a) or (b), as applicable, for the relevant Test Period.
(b) For purposes of determining compliance calculating any financial ratio or test, Specified Transactions (with any provision incurrence or repayment of any Indebtedness in connection therewith to be subject to clause (d) of this Agreement which requires Pro Forma Compliance Section 1.09) that have been made (i) during the applicable Test Period and (ii) if applicable as described in clause (a) above, subsequent to such Test Period and prior to or simultaneously with the Financial Covenantevent for which the calculation of any such ratio is made shall be calculated on a pro forma basis assuming that all such Specified Transactions (and any increase or decrease in Consolidated EBITDA and the component financial definitions used therein attributable to any Specified Transaction) had occurred on the first day of the applicable Test Period. If since the beginning of any applicable Test Period any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Borrower or any of its Restricted Subsidiaries since the beginning of such Test Period shall have made any Specified Transaction that would have required adjustment pursuant to this Section 1.09, then such financial ratio or test shall be calculated to give pro forma effect thereto in accordance with this Section 1.09.
(c) Whenever pro forma effect is to be given to a Specified Transaction, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Borrower and include, for the avoidance of doubt, the amount of “run-rate” cost savings, operating expense reductions and synergies projected by the Borrower in good faith to be realized as a result of specified actions taken, committed to be taken or expected to be taken (calculated on a pro forma basis as though such cost savings, operating expense reductions and synergies had been realized on the first day of such period and as if such cost savings, operating expense reductions and synergies were realized during the entirety of such period) and “run-rate” means the full recurring benefit for a period that is associated with any action taken, committed to be taken or expected to be taken (including any savings expected to result from the elimination of a public target’s compliance costs with public company requirements) net of the amount of actual benefits realized during such period from such actions, and any such adjustments shall be included in the initial pro forma calculations of such financial ratios or tests and during any subsequent Test Period in which the effects thereof are expected to be realized relating to such Specified Transaction; provided that (A) such amounts are reasonably identifiable and factually supportable in the good faith judgment of the Borrower, (xB) such actions have been taken or with respect to which substantial steps have been taken (in the good faith determination of the Borrower) within eighteen (18) months after the date of such Specified Transaction, and (C) no amounts shall be added pursuant to this clause (c) to the extent duplicative of any amounts that are otherwise added back in computing Consolidated EBITDA, whether through a pro forma adjustment or otherwise, with respect to such period; provided that any increase to Consolidated EBITDA as a result of cost savings, operating expense reductions and synergies pursuant to this Section 1.09(c) shall be subject to the limitation set forth in the proviso of clause (viii) of the definition of Consolidated EBITDA.
(d) In the event that the Borrower or any Restricted Subsidiary incurs (including by assumption or guarantees) or repays (including by redemption, repayment, retirement or extinguishment) any Indebtedness included in the calculations of any financial ratio or test (in each case, other than Indebtedness incurred or repaid under any revolving credit facility), (i) during the applicable Test Period or (ii) subject to clause (a) subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then such financial ratio or test shall be calculated giving pro forma effect to such incurrence or repayment of Indebtedness, to the extent required, as if the same had occurred on the last day of the applicable Test Period (or the first day of the applicable Test Period solely in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01, or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:Consolidated Fixed Charge Coverage Ratio).
(1e) if If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date of the event for which a determination under this definition the calculation of the Consolidated Fixed Charge Coverage Ratio is made had been the applicable rate for the entire period (taking into account any Swap Contracts hedging obligations applicable to such Indebtedness if Indebtedness); provided, in the case of repayment of any Indebtedness, to the extent actual interest related thereto was included during all or any portion of the applicable Test Period, the actual interest may be used for the applicable portion of such Swap Contracts has a remaining term in excess of 12 months);
(2) interest Test Period. Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest . Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency London interbank offered rate, or other rate, shall be deemed determined to have been based upon the rate actually chosen, or, or if none, then based upon such optional rate chosen as the Borrower Representative or Restricted Subsidiary may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savings.”
Appears in 2 contracts
Samples: Abl Credit Agreement (Prestige Brands Holdings, Inc.), Abl Credit Agreement (Prestige Brands Holdings, Inc.)
Pro Forma Calculations. Notwithstanding anything to the contrary herein (subject to Section 1.02(j))contained herein, all calculations of Consolidated EBITDA, the First Lien Net Leverage Ratio, the Consolidated Total Net Leverage Ratio and the Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 determining the Applicable Rate), and 2.15) the Consolidated Interest Coverage Ratio shall be made on a Pro Forma Basis with respect to each all Specified Transaction Transactions occurring during the applicable four quarter period Measurement Period to which such calculation relates, and/or subsequent to the end of such four-quarter period Measurement Period but not later than the date of such calculation; provided that provided, that, notwithstanding the foregoing, when calculating Consolidated EBITDA, the First Lien Consolidated Total Net Leverage Ratio, and/or the Consolidated Interest Coverage Ratio for purposes of determining (i) determining the applicable percentage of Excess Cash Flow for purposes of compliance with Section 2.05(b)7.11, and/or (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenant, any Specified Transaction and any related adjustment contemplated in the definition of “Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) Basis” that occurred subsequent to the end of the applicable four quarter period Measurement Period shall not be given Pro Forma Effect. For purposes of determining compliance with any provision of this Agreement which requires compliance on a Pro Forma Compliance Basis with the Financial Covenantany financial covenant set forth in Section 7.11, (xA) in the case of any such compliance required after delivery of financial statements for the fiscal quarter of the Borrowing ending on or about June September 30, 20142021, such compliance on a Pro Forma Compliance Basis shall be determined by reference to minimum Consolidated EBITDA, the maximum First Lien Consolidated Total Net Leverage Ratio Ratio, and/or the minimum Consolidated Interest Coverage Ratio, as applicable, permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.016.01(a) or (b), or (yB) in the case of any such compliance required prior to the delivery referred to in clause (xA) above, such compliance on a Pro Forma Compliance Basis shall be determined by reference to minimum Consolidated EBITDA, the maximum First Lien Consolidated Total Net Leverage Ratio Ratio, and/or the minimum Consolidated Interest Coverage Ratio, as applicable, permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rateending September 30, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savings2021.”
Appears in 2 contracts
Samples: Credit Agreement (Corsair Gaming, Inc.), Credit Agreement (Corsair Gaming, Inc.)
Pro Forma Calculations. (a) Notwithstanding anything to the contrary herein (subject to Section 1.02(j))herein, for purposes of determining compliance with any test contained in this Agreement, the Consolidated Total Net Leverage Ratio, the Consolidated First Lien Net Leverage Ratio, the Consolidated EBITDA and Total Net Leverage Ratio and the Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 and 2.15) on a Pro Forma Basis with respect pro forma basis to each give effect to all Specified Transaction occurring Transactions that have been made during the applicable four quarter period to which such calculation relates, and/or of measurement or subsequent to such period and prior to or simultaneously with the end of such four-quarter period but not later than event for which the date of such calculationcalculation is made in the manner prescribed by this Section 1.09; provided that notwithstanding anything to the foregoingcontrary in Section 1.09(b), (c) or (d), when (x) calculating the Consolidated First Lien Net Leverage Ratio for purposes of the definition of “Applicable ECF Percentage” or (y) calculating the Consolidated Total Net Leverage Ratio for purposes of (i) determining the applicable percentage definition of Excess Cash Flow for purposes of Section 2.05(b), “Applicable ECF Percentage” and (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with any covenant pursuant to Section 7.11, the Financial Covenant, any Specified Transaction and any related adjustment contemplated events described in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) this Section 1.09 that occurred subsequent to the end of the applicable four quarter period Test Period shall not be given Pro Forma Effectpro forma effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with In addition, whenever a financial ratio or test is to be calculated on a pro forma basis, the Financial Covenant, (x) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum “Test Period” for purposes of calculating such financial ratio or test shall be deemed to be a reference to, and shall be based on, the most recently ended Test Period for which internal financial statements of Parent are available (as determined in good faith by Parent); provided that, the provisions of this sentence shall not apply for purposes of calculating the Consolidated First Lien Net Leverage Ratio permitted or the Consolidated Total Net Leverage Ratio for purposes of the definition of “Applicable ECF Percentage” and determining actual compliance with Section 7.11 (other than for the fiscal quarter most recently then ended for purpose of determining pro forma compliance with Section 7.11), as applicable, each of which shall be based on the financial statements have been delivered (or were required pursuant to have been deliveredSection 6.01(a) in accordance with Section 6.01, or (yb), as applicable, for the relevant Test Period.
(b) in the case For purposes of calculating any such compliance required prior to the delivery referred to in clause financial ratio or test (x) aboveincluding Consolidated Total Net Leverage Ratio, such Pro Forma Compliance shall be determined by reference to the maximum Consolidated First Lien Net Leverage Ratio permitted for the fiscal quarter ending June 30Ratio, 2014. With respect Consolidated Senior Secured Net Leverage Ratio, Consolidated EBITDA and Total Assets), Specified Transactions (with any incurrence or repayment of any Indebtedness in connection therewith to any provision of this Agreement (other than the provisions of be subject to Section 6.02(a) or Section 7.081.09(d)) that requires compliance have been made (i) during the applicable Test Period and (ii) if applicable as described in Section 1.09(a), subsequent to such Test Period and prior to or Pro Forma Compliance simultaneously with the Financial Covenant, event for which the calculation of any such compliance ratio or Pro Forma Compliance shall be required regardless of whether the Lux Borrower test is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness made shall be calculated as if on a pro forma basis assuming that all such Specified Transactions (and any increase or decrease in Consolidated EBITDA and the rate in effect component financial definitions used therein attributable to any Specified Transaction) had occurred on the date for which a first day (or, in case of the determination under this definition is made had been of Total Assets, the last day) of the applicable rate for Test Period. If since the entire period beginning of any applicable Test Period any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into Parent or any of its Restricted Subsidiaries since the beginning of such Test Period shall have made any Specified Transaction that would have required adjustment pursuant to this Section 1.09, then such financial ratio or test (taking into account any Swap Contracts applicable and Consolidated EBITDA and Total Assets) shall be calculated to such Indebtedness if such Swap Contracts has a remaining term give pro forma effect thereto in excess of 12 months);accordance with this Section 1.09.
(2c) interest on Whenever pro forma effect is to be given to a Capitalized Lease Obligation Specified Transaction, the pro forma calculations shall be deemed to accrue at an interest rate reasonably determined made in good faith by a responsible financial or accounting officer of Parent and include, for the Borrower Representative avoidance of doubt, the amount of “run-rate” cost savings, operating expense reductions and synergies projected by Parent in good faith to be the rate realized as a result of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
specified actions taken or expected to be taken (3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed calculated on a pro forma basis as though such cost savings, operating expense reductions and synergies had been realized on the first day of such period and as if such cost savings, operating expense reductions and synergies were realized during the entirety of such period) and “run-rate” means the full recurring benefit for a period that is associated with any action taken, committed to be taken or expected to be taken (including any savings expected to result from the elimination of a public target’s compliance costs with public company requirements) net of the amount of actual benefits realized during such period from such actions, and any such adjustments shall be computed based upon included in the average daily balance initial pro forma calculations of such Indebtedness financial ratios or tests and during any subsequent Test Period in which the applicable periodeffects thereof are expected to be realized relating to such Specified Transaction; and
provided that (5i) such amounts are (A) reasonably supportable and quantifiable in the good faith judgment of Parent, (B) reasonably anticipated to be realized not later than eighteen (18) months after the date of such Specified Transaction, and (C) no amounts shall be added pursuant to this Section 1.09(c) to the extent not already covered aboveduplicative of any amounts that are otherwise added back in computing Consolidated EBITDA, whether through a pro forma adjustment or otherwise, with respect to such period; and (ii) the aggregate adjustments pursuant to this Section 1.09(c) (plus any such calculation may include add-backs pursuant to clause (a)(vii)(B) of the definition of “Consolidated EBITDA” but excluding any adjustments calculated in accordance consistent with Article 11 of Regulation S-X promulgated under the Securities Act. Any pro forma calculation may includeAct and as interpreted by the staff of the SEC)) (i) for the Test Period ending June 30, without limitation2016 and the Test Period ending September 30, 2016, shall not exceed 30% of Consolidated EBITDA for such Test Period (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give after giving effect to any Pro Forma Cost Savings such add-backs or adjustments) and (3ii) all adjustments described on Schedule 1.01(athe Test Period ending December 31, 2016, and each Test Period thereafter, shall not exceed 20% of Consolidated EBITDA for such Test Period (calculated after giving effect to any such add-backs or adjustments).
(d) In the event that Parent or any Restricted Subsidiary incurs (including by assumption or guarantees) or repays (including by redemption, repayment, retirement or extinguishment) any Indebtedness included in the calculations of any financial ratio or test (in each case, other than Indebtedness incurred or repaid under any revolving credit facility), (i) during the applicable Test Period or (ii) subject to Section 1.09(a) subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then such financial ratio or test shall be calculated giving pro forma effect to such incurrence or repayment of Indebtedness, to the extent such adjustmentsrequired, without duplication, continue to be as if the same had occurred on the last day of the applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost SavingsTest Period.”
Appears in 2 contracts
Samples: Second Lien Credit Agreement (Global Eagle Entertainment Inc.), Second Lien Credit Agreement (Global Eagle Entertainment Inc.)
Pro Forma Calculations. Notwithstanding anything to (a) For purposes of any calculation of the contrary herein (subject to Section 1.02(j))Minimum Receivables Test, the First Lien Net Leverage Ratio, the Total Net Leverage Ratio and the or Fixed Charge Coverage Ratio and or Consolidated Net Tangible Assets shall be calculated (including EBITDA or consolidated assets for purposes of Sections 2.14 determinations of Material Subsidiaries, in the event that any Specified Transaction has occurred during the Test Period for which the Minimum Receivables Test, Total Leverage Ratio or Fixed Charge Coverage Ratio or Consolidated EBITDA or consolidated assets for purposes of determination of Material Subsidiaries is being calculated or, except for purposes of determining whether an Event of Default has occurred under Section 6.10 has occurred, following the end of such Test Period but prior to the date that financial statements have been delivered pursuant to Section 5.01(a) or (b), such calculation shall be made on a Pro Forma Basis; provided, that, with respect to any Limited Conditionality Acquisition, except for purposes of determining whether an Event of Default has occurred under Section 6.10, all subsequent financial ratio tests required to be complied with under this Agreement in order to take any action shall, until the consummation of such Limited Conditionality Acquisition (or the termination of the definitive agreement with respect thereto), be required to be complied with both (1) on an actual basis without giving effect to such Limited Conditionality Acquisition and 2.15all relevant related pro forma events and (2) on a Pro Forma Basis giving effect to such Limited Conditionality Acquisition and all relevant related pro forma events (it being understood and agreed that nothing in this proviso shall require any condition to a Limited Conditionality Acquisition that is not required pursuant to Section 2.09 or the definition of “Permitted Acquisition”).
(b) Whenever any test is required to be complied with respect to each Specified Transaction occurring during the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four-quarter period but not later than the date of such calculation; provided that notwithstanding the foregoing, when calculating the First Lien Net Leverage Ratio for purposes of (i) determining the applicable percentage of Excess Cash Flow for purposes of Section 2.05(b), (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) Basis with the Financial Covenant, reference to Section 6.10 for purposes of taking any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent action prior to the end date of the applicable four quarter period shall not be given Pro Forma Effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenant, (x) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30, 20142016, such Pro Forma Compliance calculation shall be determined by reference to made based on the maximum First Lien Net Leverage Ratio permitted required covenant levels in effect for such Section as of and for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01, or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter Test Period ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savings2016.”
Appears in 2 contracts
Samples: Credit Agreement (Insight Enterprises Inc), Credit Agreement (Insight Enterprises Inc)
Pro Forma Calculations. Notwithstanding anything to the contrary herein (subject to Section 1.02(j1.02(i)), the Consolidated Cash Interest Expense, Consolidated EBITDA, Consolidated First Lien Net Leverage Ratio, the Consolidated Interest Coverage Ratio, Consolidated Interest Expense, Consolidated Net Income, Consolidated Senior Secured Net Leverage Ratio, Consolidated Total Assets, Consolidated Total Net Leverage Ratio and Ratio, Four Quarter Consolidated EBITDA, Fixed Charges and/or Pro Forma Cost Savings of the Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets Parent Borrower shall be calculated (including including, in each case, for purposes of Sections 2.14 and 2.15) on a Pro Forma Basis with respect to each Specified Transaction occurring during the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four-quarter period but not later than (including, with respect to any proposed Investment or acquisition pursuant to Rule 2.7 of The City Code on Takeovers and Mergers (or a similar arrangement) for which committed financing is obtained or is sought to be obtained, the date of relevant determination or calculation may be made with respect to an event occurring or intended to occur subsequent to such calculationfour-quarter period); provided that notwithstanding the foregoing, when calculating the Consolidated First Lien Net Leverage Ratio for purposes of (i) determining the applicable percentage of Excess Cash Flow for purposes of Section 2.05(b), (ii) the Applicable Rate, (iiiii) the Applicable Commitment Fee and (iviii) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenant, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four quarter period shall not be given Pro Forma Effect. For Notwithstanding anything to the contrary contained herein, for purposes of determining compliance calculating any leverage ratio herein in connection with the incurrence of any provision Indebtedness or the issuance of any Disqualified Stock or Preferred Stock there shall be no netting of the cash proceeds proposed to be received in connection with the incurrence of such Indebtedness or the issuance of any Disqualified Stock or Preferred Stock. Notwithstanding anything in this Agreement which requires Pro Forma Compliance with the Financial Covenant, (x) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum contrary, in calculating the Consolidated First Lien Net Leverage Ratio, Consolidated Senior Secured Net Leverage Ratio permitted for and/or Consolidated Total Net Leverage Ratio, the fiscal quarter most recently Parent Borrower shall treat any revolving facility then ended for which financial statements have been delivered being established (or were required to have been delivered) in accordance with Section 6.01, or (y) in the case amount of any increase thereof) as fully drawn and, if such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum Consolidated First Lien Net Leverage Ratio, Consolidated Senior Secured Net Leverage Ratio permitted for the fiscal quarter ending June 30and/or Consolidated Total Net Leverage Ratio, 2014. With as applicable, is satisfied with respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 thereto at such time. For purposes of making , any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effectsubsequent borrowing or other incurrence thereunder, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term not in excess of 12 months);
(2) interest on a Capitalized Lease Obligation the aggregate amount attributable to such revolving facility and included in such calculation, shall not be deemed to accrue as an incurrence of additional Indebtedness at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savingssubsequent time.”
Appears in 2 contracts
Samples: Credit Agreement (MeridianLink, Inc.), Credit Agreement (MeridianLink, Inc.)
Pro Forma Calculations. Notwithstanding anything to the contrary herein (subject to Section 1.02(j))contained herein, all calculations of the First Lien Net Leverage Ratio, the Consolidated Total Net Leverage Ratio and the Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 compliance with Section 7.7 and 2.15determining the Applicable Margin) and the Consolidated Fixed Charge Coverage Ratio, in each case, shall be made on a Pro Forma Basis with respect to each all Specified Transaction Transactions occurring during the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four-quarter period but not later than the date of such calculation; provided that provided, that, notwithstanding the foregoing, when calculating the First Lien Consolidated Total Net Leverage Ratio or the Consolidated Fixed Charge Coverage Ratio, in each case, for purposes of determining (i) determining the applicable percentage of Excess Cash Flow for purposes of compliance with Section 2.05(b)7.7, and/or (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial CovenantMargin, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four quarter period shall not be given Pro Forma Effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenantany financial covenant set forth in Section 7.7, (xA) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30December 31, 20142021, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Consolidated Total Net Leverage Ratio and/or the minimum Consolidated Fixed Charge Coverage Ratio, as applicable, permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01LTM Period, or (yB) in the case of any such compliance required prior to the delivery referred to in clause (xA) above, such Pro Forma Compliance shall be determined by reference to (x) the most recent financial statements of the Borrower that are available (to the extent reasonably acceptable to the Administrative Agent, it being understood and agreed that the financial statements of the Borrower filed with or furnished to the Securities and Exchange Commission and publicly available are deemed to be reasonably acceptable by the Administrative Agent) or the most recent financial statements delivered pursuant to Section 6.1(a), as applicable, and (y) the maximum First Lien Consolidated Total Net Leverage Ratio and/or the minimum Consolidated Fixed Charge Coverage Ratio, as applicable, permitted for the fiscal quarter ending June 30December 31, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savings2021.”
Appears in 2 contracts
Samples: Credit Agreement (ATN International, Inc.), Credit Agreement (ATN International, Inc.)
Pro Forma Calculations. (a) Notwithstanding anything to the contrary herein herein, financial ratios and tests, including the Total Leverage Ratio, the Secured Leverage Ratio, the Consolidated First Lien Net Leverage Ratio and the Consolidated Cash Interest Coverage Ratio shall be calculated in the manner prescribed by this Section 1.09; provided that notwithstanding anything to the contrary in clauses (subject to Section 1.02(j)b), (c) or (d) of this Section 1.09, when calculating the Consolidated First Lien Net Leverage Ratio, the Total Net Leverage Ratio and the Fixed Charge Consolidated Cash Interest Coverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 and 2.15) on a Pro Forma Basis with respect to Ratio, each Specified Transaction occurring during the applicable four quarter period to which such calculation relatesas applicable, and/or subsequent to the end of such four-quarter period but not later than the date of such calculation; provided that notwithstanding the foregoing, when calculating the First Lien Net Leverage Ratio for purposes of (i) determining the applicable percentage definition of Excess Cash Flow for purposes of Section 2.05(b), “Applicable Rate,” (ii) the definition of “Applicable Rate, ECF Percentage” and (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with any covenant pursuant to Section 7.11, the Financial Covenant, any Specified Transaction and any related adjustment contemplated events described in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) this Section 1.09 that occurred subsequent to the end of the applicable four quarter period Test Period shall not be given Pro Forma Effectpro forma effect. In addition, whenever a financial ratio or test is to be calculated on a pro forma basis, the reference to the “Test Period” for purposes of calculating such financial ratio or test shall be deemed to be a reference to, and shall be based on, the most recently ended Test Period for which internal financial statements of the Borrower are available (as determined in good faith by the Borrower); provided that, the provisions of this sentence shall not apply for purposes of calculating the Consolidated First Lien Net Leverage Ratio, the Total Leverage Ratio and the Consolidated Cash Interest Coverage Ratio for purposes of the definition of “Applicable Rate,” the definition of “Applicable ECF Percentage” and determining actual compliance with Section 7.11 (other than for the purpose of determining pro forma compliance with Section 7.11), each of which shall be based on the financial statements delivered pursuant to Section 6.01(a) or (b), as applicable, for the relevant Test Period.
(b) For purposes of determining compliance calculating any financial ratio or test, Specified Transactions (with any provision incurrence or repayment of any Indebtedness in connection therewith to be subject to clause (d) of this Agreement which requires Pro Forma Compliance Section 1.09) that have been made (i) during the applicable Test Period and (ii) if applicable as described in clause (a) above, subsequent to such Test Period and prior to or simultaneously with the Financial Covenantevent for which the calculation of any such ratio is made shall be calculated on a pro forma basis assuming that all such Specified Transactions (and any increase or decrease in Consolidated EBITDA and the component financial definitions used therein attributable to any Specified Transaction) had occurred on the first day of the applicable Test Period. If since the beginning of any applicable Test Period any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Borrower or any of its Restricted Subsidiaries since the beginning of such Test Period shall have made any Specified Transaction that would have required adjustment pursuant to this Section 1.09, then such financial ratio or test shall be calculated to give pro forma effect thereto in accordance with this Section 1.09.
(c) Whenever pro forma effect is to be given to a Specified Transaction, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Borrower and include, for the avoidance of doubt, the amount of “run-rate” cost savings, operating expense reductions and synergies projected by the Borrower in good faith to be realized as a result of specified actions taken, committed to be taken or expected to be taken (calculated on a pro forma basis as though such cost savings, operating expense reductions and synergies had been realized on the first day of such period and as if such cost savings, operating expense reductions and synergies were realized during the entirety of such period) and “run-rate” means the full recurring benefit for a period that is associated with any action taken, committed to be taken or expected to be taken (including any savings expected to result from the elimination of a public target’s compliance costs with public company requirements) net of the amount of actual benefits realized during such period from such actions, and any such adjustments shall be included in the initial pro forma calculations of such financial ratios or tests and during any subsequent Test Period in which the effects thereof are expected to be realized relating to such Specified Transaction; provided that (A) such amounts are reasonably identifiable and factually supportable in the good faith judgment of the Borrower, (xB) such actions have been taken or with respect to which substantial steps have been taken (in the good faith determination of the Borrower) within eighteen (18) months after the date of such Specified Transaction, and (C) no amounts shall be added pursuant to this clause (c) to the extent duplicative of any amounts that are otherwise added back in computing Consolidated EBITDA, whether through a pro forma adjustment or otherwise, with respect to such period; provided that any increase to Consolidated EBITDA as a result of cost savings, operating expense reductions and synergies pursuant to this Section 1.09(c) shall be subject to the limitation set forth in the proviso of clause (viii) of the definition of “Consolidated EBITDA.”
(d) In the event that the Borrower or any Restricted Subsidiary incurs (including by assumption or guarantees) or repays (including by redemption, repayment, retirement or extinguishment) any Indebtedness included in the calculations of any financial ratio or test (in each case, other than Indebtedness incurred or repaid under any revolving credit facility), (i) during the applicable Test Period or (ii) subject to clause (a) subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then such financial ratio or test shall be calculated giving pro forma effect to such incurrence or repayment of Indebtedness, to the extent required, as if the same had occurred on the last day of the applicable Test Period (or the first day of the applicable Test Period solely in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01, or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:Consolidated Cash Interest Coverage Ratio).
(1e) if If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date of the event for which a determination under this definition the calculation of the Consolidated Cash Interest Coverage Ratio is made had been the applicable rate for the entire period (taking into account any Swap Contracts hedging obligations applicable to such Indebtedness if Indebtedness); provided, in the case of repayment of any Indebtedness, to the extent actual interest related thereto was included during all or any portion of the applicable Test Period, the actual interest may be used for the applicable portion of such Swap Contracts has a remaining term in excess of 12 months);
(2) interest Test Period. Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest . Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency London interbank offered rate, or other rate, shall be deemed determined to have been based upon the rate actually chosen, or, or if none, then based upon such optional rate chosen as the Borrower Representative or Restricted Subsidiary may designate; and.
(4f) interest on At any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a time prior to June 30, 2012, any provision requiring the pro forma basis compliance with Section 7.11 shall be computed based upon made assuming that compliance with the average daily balance of such Indebtedness during Consolidated Cash Interest Coverage Ratio and Total Leverage Ratio set forth in Section 7.11 for the applicable period; and
(5) Test Period ending on June 30, 2012 is required with respect to the extent not already covered above, any most recent Test Period prior to such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savingstime.”
Appears in 1 contract
Samples: Term Loan Credit Agreement (Prestige Consumer Healthcare Inc.)
Pro Forma Calculations. (a) Notwithstanding anything to the contrary herein (subject to Section 1.02(j))herein, financial ratios and tests, including the First Lien Net Leverage Ratio, the Total Secured Net Leverage Ratio and the Fixed Charge Coverage Ratio Total Net Leverage Ratio, and compliance with covenants determined by reference to Consolidated Net Tangible Assets EBITDA or Total Assets, shall be calculated (including for purposes of Sections 2.14 and 2.15) on a Pro Forma Basis with respect to each Specified Transaction occurring during in the applicable four quarter period to which such calculation relatesmanner prescribed by this Section 1.07; provided, and/or subsequent that notwithstanding anything to the end contrary in clauses (b), (c), (d) or (f) of such four-quarter period but not later than the date of such calculation; provided that notwithstanding the foregoingthis Section 1.07, (A) when calculating the First Lien Net Leverage Ratio any such ratio or test for purposes of (i) determining the applicable percentage definition of Excess Cash Flow for purposes of Section 2.05(b)“Applicable Rate”, and (ii) Section 6.12 (other than for the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) purpose of determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with Section 6.12), the Financial Covenant, any Specified Transaction and any related adjustment contemplated events described in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) this Section 1.07 that occurred subsequent to the end of the applicable four quarter period Test Period shall not be given Pro Forma EffectEffect and cash and Permitted Investments included on the consolidated balance sheet of the Borrower and its Restricted Subsidiaries as of the date of the event for which the calculation of any such ratio is made shall be taken into account in lieu of cash or Permitted Investments as of the last day of the relevant Test Period and (B) when calculating any such ratio or test for purposes of the incurrence of any Indebtedness, cash and Permitted Investments resulting from the incurrence of any such Indebtedness shall be excluded from the pro forma calculation of any applicable ratio or test. For In addition, whenever a financial ratio or test is to be calculated on a Pro Forma Basis, the reference to the “Test Period” for purposes of calculating such financial ratio or test shall be deemed to be a reference to, and shall be based on, the most recently ended Test Period for which internal financial statements of the Borrower are available (as determined in good faith by the Borrower) (it being understood that for purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with Section 6.12, if no Test Period with an applicable level cited in Section 6.12 has passed, the Financial Covenantapplicable level shall be the level for the first Test Period cited in Section 6.12 with an indicated level).
(b) For purposes of calculating any financial ratio or test or compliance with any covenant determined by reference to Consolidated EBITDA or Total Assets, Specified Transactions (xwith any incurrence or repayment of any Indebtedness in connection therewith to be subject to clause (d) of this Section 1.07) that (i) have been made during the applicable Test Period or (ii) if applicable as described in clause (a) above, have been made subsequent to such Test Period and prior to or substantially concurrently with the event for which the calculation of any such ratio is made shall be calculated on a Pro Forma Basis assuming that all such Specified Transactions (and any increase or decrease in Consolidated EBITDA, Total Assets and the component financial definitions used therein attributable to any Specified Transaction) had occurred on the first day of the applicable Test Period (or, in the case of Total Assets, on the last day of the applicable Test Period). If since the beginning of any applicable Test Period any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Borrower or any of its Restricted Subsidiaries since the beginning of such compliance Test Period shall have made any Specified Transaction that would have required after delivery of adjustment pursuant to this Section 1.07, then such financial statements for the fiscal quarter ending on ratio or about June 30, 2014, such test (or Total Assets) shall be calculated to give Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) Effect thereto in accordance with this Section 6.01, or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savings1.07.”
Appears in 1 contract
Pro Forma Calculations. Notwithstanding anything to the contrary herein (subject to Section 1.02(j))contained herein, all calculations of the First Lien Net Leverage Ratio, the Consolidated Total Net Adjusted Leverage Ratio and the Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 determining the Applicable Rate) and 2.15) the Consolidated Fixed Charge Coverage Ratio shall be made on a Pro Forma Basis with respect to each all Specified Transaction Transactions occurring during the applicable four quarter period Measurement Period to which such calculation relates, and/or subsequent to the end of such four-quarter period Measurement Period but not later than the date of such calculation; provided that provided, that, notwithstanding the foregoing, when calculating the First Lien Consolidated Total Net Adjusted Leverage Ratio and/or the Consolidated Fixed Charge Coverage Ratio for purposes of determining (i) determining the applicable percentage of Excess Cash Flow for purposes of compliance with Section 2.05(b)7.11, and/or (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenant, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four quarter period Measurement Period shall not be given Pro Forma Effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenantany financial covenant set forth in Section 7.11, (x) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30, 20142015, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Consolidated Total Net Adjusted Leverage Ratio and/or minimum Consolidated Fixed Charge Coverage Ratio, as applicable, permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.016.01(a) or (b), or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Consolidated Total Net Adjusted Leverage Ratio and/or minimum Consolidated Fixed Charge Coverage Ratio, as applicable, permitted for the fiscal quarter ending June 30, 20142015. With Notwithstanding anything to the contrary contained herein, (x) during the period commencing with the execution of the definitive acquisition agreement or the provision of irrevocable notice, in each case, in connection with a Limited Conditionality Accordion Transaction and ending on the earlier to occur of (A) the date of consummation of such Permitted Acquisition or such redemption or repayment and (B) the date of abandonment by the Borrower or the applicable Subsidiary of such Permitted Acquisition or such redemption or repayment, each Pro Forma Compliance Certificate (for the avoidance of doubt, excluding (1) any Compliance Certificate delivered pursuant to Section 6.02(b) and (2) the Pro Forma Compliance Certificate delivered by the Borrower to determine the permissibility of the underlying Permitted Acquisition itself (pursuant to the definition thereof)) delivered hereunder (and each other calculation on a Pro Forma Basis hereunder to determine the permissibility of a particular transaction (e.g., the incurrence of Additional Unsecured Indebtedness, etc.) shall demonstrate two (2) calculations of each of the relevant covenants set forth in Section 7.11; the first shall assume that the applicable Permitted Acquisition or redemption or repayment has been consummated and the second shall assume that such transaction has been abandoned, and, for the avoidance of doubt, with respect to any provision of this Agreement (other than particular transaction, each such calculation set forth on the provisions of Section 6.02(a) or Section 7.08) that requires compliance or applicable Pro Forma Compliance with the Financial Covenant, such compliance or Certificate must demonstrate Pro Forma Compliance shall in order for such transaction to be required regardless of whether permitted, and (y) in connection with any Qualified Acquisition Pro Forma Calculation, the Lux maximum Consolidated Total Net Adjusted Leverage Ratio that was permitted pursuant to Section 7.11(a) for the most recent fiscal quarter ended for which the Borrower is otherwise was required to comply with such covenant under the terms of deliver financial statements pursuant to Section 7.08 at such time. For purposes of making any computation referred to above:
6.01(a) or (1b) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined be increased by a responsible financial or accounting officer 0.50 to 1.00 solely for purposes of such Qualified Acquisition Pro Forma Calculation (but, in no event shall such maximum Consolidated Total Net Adjusted Leverage Ratio exceed 4.50 to 1.00).
(f) The phrase “No reallocation hereunder” in Section 2.15(a)(iv) of the Borrower Representative Credit Agreement is hereby amended to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;read “Subject to Section 11.21, no reallocation hereunder”.
(3g) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) A new Section 5.25 is hereby added to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated Credit Agreement to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (read as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savings.”follows:
Appears in 1 contract
Samples: Credit Agreement (Ducommun Inc /De/)
Pro Forma Calculations. Notwithstanding anything to the contrary herein (subject to Section 1.02(j))contained herein, all calculations of the First Lien Net Leverage Ratio, the Total Net Consolidated Leverage Ratio and the Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 determining the Applicable Rate) and 2.15) the Consolidated Interest Coverage Ratio shall be made on a Pro Forma Basis with respect to each all Specified Transaction Transactions occurring during the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four-four quarter period but not later than the date of such calculation; provided that provided, that, notwithstanding the foregoing, when calculating the First Lien Net Consolidated Leverage Ratio and/or the Consolidated Interest Coverage Ratio for purposes of determining (ix) determining the applicable percentage of Excess Cash Flow for purposes of compliance with Section 2.05(b), 8.11 and/or (iiy) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenant, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four quarter period shall not be given Pro Forma Effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenantany financial covenant set forth in Section 8.11, (x) in the case of any such compliance required after delivery of financial statements for the fiscal quarter year ending on or about June 30October 31, 20142013, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Consolidated Leverage Ratio and/or minimum Consolidated Interest Coverage Ratio, as applicable, permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.017.01(a) or (b), or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Consolidated Leverage Ratio and/or minimum Consolidated Fixed Charge Coverage Ratio, as applicable, permitted for the fiscal quarter ending June 30October 31, 20142013. With respect Notwithstanding anything to the contrary herein, for purposes of calculating the Consolidated Leverage Ratio and the Consolidated Interest Coverage Ratio at any provision time prior to the first delivery of this Agreement (other than the provisions of financial statements pursuant to Section 6.02(a7.01(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant(b), such compliance or Pro Forma Compliance calculation shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given determined based on pro forma effectfinancial statements of the Company and its Subsidiaries, in form and substance satisfactory to the interest on such Indebtedness shall be calculated as if Administrative Agent, delivered to the rate in effect Administrative Agent prior to the consummation of the applicable Specified Transaction and thereafter, based on the date for which a determination under this definition is made had been the applicable rate for the entire period most recent financial statements delivered pursuant to Section 7.01(a) or (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 monthsb);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savings.”
Appears in 1 contract
Pro Forma Calculations. (a) Notwithstanding anything to the contrary herein (subject to Section 1.02(j))herein, for purposes of this Agreement and the other Loan Documents, the First Lien Net Leverage Ratio, the Secured Net Leverage Ratio, the Total Net Leverage Ratio and the Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets EBITDA shall be calculated (including including, but not limited to, for purposes of Sections 2.14 and 2.15Section 2.14) on a Pro Forma Basis with respect to each Specified Transaction occurring during the applicable four quarter period to which such calculation relates, and/or or subsequent to the end of such four-quarter period but not later than the date of such calculation; provided that notwithstanding the foregoing, when calculating the First Lien Net Leverage Ratio and the Secured Net Leverage Ratio, as applicable, for purposes of determining (ia) determining the applicable percentage of Excess Cash Flow for purposes of set forth in Section 2.05(b)2.05, (iib) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenantmaximum First Lien Net Leverage Ratio pursuant to Section 7.11 and (c) the Applicable Rate and the Revolving Commitment Fee Percentage, any Specified Transaction and any related adjustment contemplated the events described in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four quarter period shall not be given Pro Forma Effect. For purposes of determining compliance .
(b) Notwithstanding anything to the contrary herein, in connection with any provision of this Agreement which requires Pro Forma Compliance action required to be taken in connection with a Limited Condition Transaction, for purposes of:
(i) calculating the Financial Covenant, (x) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for Ratio, the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01, or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Secured Net Leverage Ratio permitted or the Total Net Leverage Ratio and other financial calculations (including, but not limited to, for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions purposes of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months2.14);
(2ii) interest on determining compliance with representations, warranties, Defaults or Events of Default; or
(iii) testing availability under covenant baskets set forth in this Agreement (including covenant baskets measured as a Capitalized Lease Obligation percentage of Consolidated EBITDA); in each case, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), the date of determination shall be deemed to accrue at an interest rate reasonably determined by a responsible financial be the date the definitive agreement for such Limited Condition Transaction is entered into (the “LCT Test Date”), and if, after giving Pro Forma Effect to the Limited Condition Transaction and the other transactions required to be entered into in connection therewith (including any incurrence or accounting officer repayment of Indebtedness and the use of proceeds thereof) as of the LCT Test Date, the Borrower Representative would have been permitted to be take such action on the rate of interest implicit relevant LCT Test Date in compliance with such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime ratio, test or similar ratebasket, a eurocurrency interbank offered ratesuch ratio, test or other rate, basket shall be deemed to have been based upon complied with; provided that availability under any ratio and the rate actually chosendetermination of whether the relevant condition is satisfied calculated on the applicable LCT Test Date may in any event be recalculated, orat the option of the Borrower, on the closing date of the Limited Condition Transaction. For the avoidance of doubt, if nonethe Borrower has made an LCT Election and any of the ratios, tests or baskets for which compliance was determined or tested as of the LCT Test Date are exceeded as a result of fluctuations in any such ratio, test or basket, including due to fluctuations in Consolidated EBITDA of the Borrower or the Person subject to such Limited Condition Transaction, at or prior to the consummation of the relevant transaction or action, such baskets, tests or ratios will not be deemed to have been exceeded as a result of such fluctuations. If the Borrower has made an LCT Election for any Limited Condition Transaction, then based upon in connection with any calculation of any ratio, test or basket availability with respect to any transaction required to be entered into in connection with such optional rate chosen as Limited Condition Transaction following the Borrower Representative may designate; and
(4) interest relevant LCT Test Date and prior to the earlier of the date on any Indebtedness under a revolving credit facility which such Limited Condition Transaction is consummated or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance date that the definitive agreement for such Limited Condition Transaction is terminated or expires without consummation of such Indebtedness during the applicable period; and
(5) to the extent not already covered aboveLimited Condition Transaction, for purposes of determining whether any such required transaction is permitted under this Agreement, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may includeratio, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements test or synergies basket shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and such other required transaction (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated. If the Borrower has made an LCT Election for any Limited Condition Transaction, then in accordance withconnection with any calculation of any other ratio, and satisfy test or basket availability with respect to the requirements specified inincurrence of Indebtedness or Liens, the definition making of Restricted Payments, the making of any permitted Investment, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of the Borrower, the prepayment, redemption, purchase, defeasance or other satisfaction of Indebtedness, or the designation of an Unrestricted Subsidiary, in each case, not required to be entered into in connection with the applicable Limited Condition Transaction (a “Subsequent Transaction”) following the relevant LCT Test Date and prior to the earlier of (x) the date on which such Limited Condition Transaction is consummated or (y) the date that the definitive agreement for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction (or the date on which the Borrower demonstrates to the Administrative Agent that it has elected not to pursue such Limited Condition Transaction), for purposes of determining whether such Subsequent Transaction is permitted under this Agreement, any such ratio, test or basket shall be required to be satisfied on a Pro Forma Cost SavingsBasis assuming such Limited Condition Transaction and other transactions required to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated.”
Appears in 1 contract
Pro Forma Calculations. (a) Notwithstanding anything to the contrary herein (subject to Section 1.02(j))herein, the First Lien Net Leverage Ratiofinancial ratios and tests, including the Total Net Leverage Ratio and the Fixed Charge Coverage Senior Secured Net Leverage Ratio and compliance with covenants determined by reference to Consolidated Net Tangible Assets EBITDA and Consolidated Total Assets, shall be calculated (including for purposes of Sections 2.14 and 2.15) on a Pro Forma Basis with respect to each Specified Transaction occurring during pro forma basis in the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four-quarter period but not later than the date of such calculationmanner prescribed by this Section 1.08; provided that notwithstanding anything to the foregoingcontrary in clauses (b), (c), (d) or (e) of this Section 1.08, (A) when calculating the First Lien Net Leverage Ratio any such ratio or test for purposes of (i) determining the applicable percentage definition of Excess Cash Flow for purposes of Section 2.05(b), “Applicable Rate,” (ii) the Applicable Rate, definition of “ECF Percentage” and (iii) Section 6.10 (other than for the Applicable Commitment Fee and (iv) purpose of determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Performance Covenant), any Specified Transaction and any related adjustment contemplated the events described in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) this Section 1.08 that occurred subsequent to the end of the applicable four quarter period Test Period shall not be given Pro Forma Effectpro forma effect and (B) when calculating any such ratio or test for purposes of the incurrence of any Indebtedness, cash and cash equivalents resulting from the incurrence of any such Indebtedness shall be excluded from the pro forma calculation of any applicable ratio or test. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Performance Covenant, (x) if no Test Period with an applicable level cited in Section 6.10 has passed, the case of any such compliance required after delivery of applicable level shall be the level for the first Test Period cited in Section 6.10 with an indicated level. Prior to the initial date upon which the financial statements for and certificates are required to be delivered pursuant to Sections 5.01(a), (b) or (c), as applicable, are required to be delivered, compliance shall be calculated on a pro forma basis as of the four consecutive fiscal quarter ending on period ended March 31, 2020.
(b) For purposes of calculating any financial ratio or about June 30, 2014, such Pro Forma Compliance shall be test or compliance with any covenant determined by reference to Consolidated EBITDA and Consolidated Total Assets, Specified Transactions (with any incurrence or repayment of any Indebtedness in connection therewith to be subject to clause (d) of this Section 1.08) that have been made (i) during the maximum First Lien Net Leverage Ratio permitted for applicable Test Period or (ii) if applicable as described in clause (a) above, subsequent to such Test Period and prior to or simultaneously with the fiscal quarter most recently then ended event for which the calculation of any such ratio is made shall be calculated on a pro forma basis assuming that all such Specified Transactions (and any increase or decrease in Consolidated EBITDA and the component financial statements definitions used therein attributable to any Specified Transaction) had occurred on the first day of the applicable Test Period. If since the beginning of any applicable Test Period any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Borrower or any of its Restricted Subsidiaries since the beginning of such Test Period shall have been delivered (made any Specified Transaction that would have required adjustment pursuant to this Section 1.08, then such financial ratio or were required test shall be calculated to have been delivered) give pro forma effect thereto in accordance with this Section 6.011.08.
(c) Whenever pro forma effect is to be given to a Specified Transaction, or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance pro forma calculations shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate made in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined good faith by a responsible financial or accounting officer of the Borrower Representative and may include, for the avoidance of doubt, the amount of “run-rate” cost savings, operating expense reductions and cost synergies resulting from or relating to, any Specified Transaction which is being given pro forma effect that have been realized or are expected to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
realized (3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed calculated on a pro forma basis as though such cost savings, operating expense reductions and synergies had been realized on the first day of such period and as if such cost savings, operating expense reductions and synergies were realized during the entirety of such period and “run-rate” means the full recurring benefit for a period that is associated with any action taken, net of the amount of actual benefits realized during such period from such actions, and any such adjustments shall be computed based upon included in the average daily balance initial pro forma calculations of any financial ratios or tests (and in respect of any subsequent pro forma calculations in which such Specified Transaction is given pro forma effect) and during any applicable subsequent Test Period in which the effects thereof are expected to be realized) relating to such Specified Transaction; provided that (A) such amounts are reasonably identifiable and factually supportable in the good faith judgment of the Borrower, (B) such cost savings, operating expense reductions and cost synergies are projected to be realized no later than eighteen (18) months after the consummation of such Indebtedness during the applicable period; and
Specified Transaction, (5C) no amounts shall be added pursuant to this clause (c) to the extent duplicative of any amounts that are otherwise added back in computing Consolidated EBITDA (or any other components thereof), whether through a pro forma adjustment or otherwise, with respect to such period and (D) any amount of “run-rate” cost savings, operating expense reductions and cost synergies added back in computing Consolidated EBITDA pursuant to this Section 1.08(c) shall be subject to the cap set forth in clause (b) in the definition of Consolidated EBITDA.
(d) In the event that the Borrower or any Restricted Subsidiary incurs (including by assumption or guarantees) or repays (including by redemption, repayment, retirement or extinguishment) any Indebtedness (other than Indebtedness incurred or repaid under any revolving credit facility in the ordinary course of business for working capital purposes unless such Indebtedness has been permanently repaid and not already covered abovereplaced), (i) during the applicable Test Period (solely in the case of the calculation of any interest coverage ratio, fixed charge coverage ratio or similar ratio) or (ii) subject to paragraph (a), subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such calculation may include adjustments ratio is made, then such financial ratio or test shall be calculated in accordance with Regulation S-X under the Securities Act. Any giving pro forma calculation may includeeffect to such incurrence or repayment of Indebtedness, in each case to the extent required, as if the same had occurred on the last day of the applicable Test Period.
(e) Notwithstanding anything to the contrary herein, with respect to any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that does not require compliance with a financial ratio or test (including, without limitation, the Total Net Leverage Ratio and/or Senior Secured Net Leverage Ratio) (1any such amounts, the “Fixed Amounts”, including, for the avoidance of doubt, any grower component based on Consolidated EBITDA or Consolidated Total Assets) adjustments calculated substantially concurrently with any amounts incurred or transactions entered into (or consummated) in accordance reliance on a provision of this Agreement that requires compliance with Regulation Sany such financial ratio or test (any such amounts, the “Incurrence-X under Based Amounts”), it is understood and agreed that (x) any Fixed Amount (and any cash proceeds thereof) shall be disregarded in the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to calculation of the extent such adjustments, without duplication, continue to be financial ratio or test applicable to the Reference Period relevant Incurrence-Based Amount in connection with such substantially concurrent incurrence and (as defined y) thereafter, the incurrence of the portion of any such amount under the Fixed Amount shall be included in the definition calculation of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost SavingsIncurrence-Based Amounts.”
Appears in 1 contract
Pro Forma Calculations. Notwithstanding anything to the contrary herein (subject to Section 1.02(j))contained herein, all calculations of the First Lien Net Leverage Ratio, the Total Net Consolidated Leverage Ratio and the Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 determining the Applicable Rate) and 2.15) the Consolidated Interest Coverage Ratio shall be made on a Pro Forma Basis with respect to each all Specified Transaction Transactions occurring during the applicable four quarter period Measurement Period to which such calculation relates, and/or subsequent to the end of such four-quarter period Measurement Period but not later than the date of such calculation; provided that provided, that, notwithstanding the foregoing, when calculating the First Lien Net Consolidated Leverage Ratio and/or the Consolidated Interest Coverage Ratio for purposes of determining (i) determining the applicable percentage of Excess Cash Flow for purposes of compliance with Section 2.05(b)7.11, and/or (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenant, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four quarter period Measurement Period shall not be given Pro Forma Effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenantany financial covenant set forth in Section 7.11, (xA) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30, 20142018, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Consolidated Leverage Ratio and/or minimum Consolidated Interest Coverage Ratio, as applicable, permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.016.01(a) or (b), or (yB) in the case of any such compliance required prior to the delivery referred to in clause (xA) above, such Pro Forma Compliance shall be determined by reference to (x) the Interim Financial Statements, and (y) the maximum First Lien Net Consolidated Leverage Ratio and/or minimum Consolidated Interest Coverage Ratio, as applicable, permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savings2018.”
Appears in 1 contract
Samples: Credit Agreement (Amedisys Inc)
Pro Forma Calculations. (a) Notwithstanding anything to the contrary herein (subject to Section 1.02(j))herein, financial ratios and tests, including the First Lien Consolidated Total Net Leverage Ratio, the Total Consolidated Secured Net Leverage Ratio and the Fixed Charge Coverage Consolidated Senior Secured Net Leverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 and 2.15) on a Pro Forma Basis with respect to each Specified Transaction occurring during in the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four-quarter period but not later than the date of such calculationmanner prescribed by this Section 1.11; provided that notwithstanding anything to the foregoingcontrary in this Section 1.11, when calculating the First Lien Consolidated Total Net Leverage Ratio for purposes of (i) determining the applicable percentage definition of Excess Cash Flow for purposes of Section 2.05(b), “Applicable ECF Percentage,” (ii) the definition of “Applicable RateAsset Sale Percentage”, and (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with any covenant pursuant to Section 7.11, in each case, the Financial Covenant, any Specified Transaction and any related adjustment contemplated events described in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) this Section 1.11 that occurred subsequent to the end of the applicable four quarter period Test Period shall not be given Pro Forma Effectpro forma effect. In addition, whenever a financial ratio or test is to be calculated on a pro forma basis, the reference to the “Test Period” for purposes of calculating such financial ratio or test shall be deemed to be a reference to, and shall be based on, the most recently ended Test Period for which financial statements of the Parent are available (as determined in good faith by the Lead Borrower); provided that, the provisions of this sentence shall not apply for purposes of calculating the Consolidated Senior Secured Net Leverage Ratio for purposes of the definition of “Applicable ECF Percentage”, the definition of “Applicable Asset Sale Percentage”, or determining actual compliance with Section 7.11 (other than for the purpose of determining pro forma compliance with Section 7.11), each of which shall be based on the financial statements delivered pursuant to Sections 6.01(a) or (b), as applicable, for the relevant Test Period.
(b) For purposes of calculating any financial ratio or test or basket that is based on a percentage of Consolidated EBITDA or Total Assets, Specified Transactions (with any incurrence or repayment of any Indebtedness in connection therewith to be subject to Section 1.11(d)) that have been made (i) during the applicable Test Period and (ii) if applicable as described in Section 1.11(a), subsequent to such Test Period and prior to or substantially concurrently with the event for which the calculation of any such ratio is made shall be calculated on a pro forma basis assuming that all such Specified Transactions (and any increase or decrease in Consolidated EBITDA, Total Assets and the component financial definitions used therein attributable to any Specified Transaction) had occurred on the first day of the applicable Test Period (or, in the case of the determination of Total Assets, the last day of the applicable Test Period). If since the beginning of any applicable Test Period any Person that subsequently became a Restricted Subsidiary of the Parent or was merged, amalgamated or consolidated with or into any Borrower or any of the Parent’s other Restricted Subsidiaries since the beginning of such Test Period shall have made any Specified Transaction that would have required adjustment pursuant to this Section 1.11, then such financial ratio or test (or the calculation of Total Assets) shall be calculated to give pro forma effect thereto in accordance with this Section 1.11.
(c) Whenever pro forma effect is to be given to the Transactions, a Specified Transaction, the implementation of an operational initiative or operational change, the pro forma calculations (i) shall be made in good faith by a Responsible Officer of the Lead Borrower and (ii) may include, for the avoidance of doubt, the amount of “run-rate” cost savings, operating expense reductions, other operating improvements and cost synergies resulting from, or relating to, such initiative or change, such Transaction or such Specified Transaction projected by the Lead Borrower in good faith to be realizable as a result of actions taken or expected to be taken (calculated on a pro forma basis as though such cost savings, operating expense reductions, other operating improvements and cost synergies had been realized on the first day of such period as if such cost savings, operating expense reductions, other operating improvements and cost synergies were realized during the entirety of such period and such that “run-rate” means the full recurring projected benefit for a period that is associated with any action taken or expected to be taken (including any savings or other benefits expected to result from the elimination of a public target’s compliance costs with public company requirements) net of the amount of actual benefits realized during such period from such actions), and any such adjustments shall be included in the initial pro forma calculation of such financial ratios or tests or basket that is based on a percentage of Consolidated EBITDA relating to such initiative or change, such Transaction or such Specified Transaction (and in respect of any subsequent pro forma calculation in which such initiative or change, such Transaction or such Specified Transaction is given pro forma effect) and during any applicable subsequent Test Period in which the effects thereof are expected to be realizable, relating to such initiative or change, such Transaction or such Specified Transaction; provided that (x) a duly completed certificate signed by a Responsible Officer of the Lead Borrower shall be delivered to the Administrative Agent together with the Compliance Certificate required to be delivered pursuant to Section 6.02, certifying that such cost savings, operating expense reductions, other operating improvements and/or cost synergies are readily identifiable, factually supportable and have been determined in good faith by the Lead Borrower to be reasonably anticipated to be realizable in the good faith judgment of the Lead Borrower, within twenty-four (24) months after the consummation of such initiative or change (or, with respect to the Transactions, within 24 months after the consummation of the Transactions), such Transaction or such Specified Transaction, which is expected to result in such cost savings, operating expense reductions, other operating improvements or cost synergies and (y) no cost savings, operating expense reductions, other operating improvements or cost synergies shall be added pursuant to clause (ii) above to the extent duplicative of any expenses or charges otherwise added to Consolidated EBITDA (or any component thereof) , whether through a pro forma adjustment or otherwise, for such period; provided, further, that all amounts added back to Consolidated EBITDA pursuant to clause (ii) above, together with all amounts added back to Consolidated EBITDA pursuant to clauses (a)(iv) and (a)(vii) in the definition thereof, shall not exceed, in the aggregate 25% of Consolidated EBITDA (calculated after giving effect to such amounts that would be added back pursuant to such clause (ii) and clause (a)(vii)(B) in the definition of Consolidated EBITDA).
(d) In the event that any Borrower or any other Restricted Subsidiary of the Parent incurs (including by assumption or guarantees) or repays (including by redemption, repayment, retirement or extinguishment) any Indebtedness included in the calculations of any financial ratio or test, (i) during the applicable Test Period or (ii) subject to Section 1.11(a) subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then such financial ratio or test shall be calculated giving pro forma effect to such incurrence or repayment of Indebtedness, to the extent required, as if the same had occurred on the last day of the applicable Test Period.
(e) Any provision requiring pro forma compliance with Section 7.11 shall be made assuming that compliance with the Consolidated Total Net Leverage Ratio pursuant to such Section is required with respect to the most recent Test Period prior to such time (it being understood that for purposes of determining Pro Forma Compliance with Section 7.11, if no Test Period with an applicable Consolidated Total Net Leverage Ratio cited in Section 7.11 has passed, the applicable Consolidated Total Net Leverage Ratio level shall be the level for the first Test Period cited in Section 7.11 with an indicated Consolidated Total Net Leverage Ratio level).
(f) [Reserved].
(g) In connection with any action being taken in connection with a Limited Condition Transaction, for purposes of:
(i) determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenant, (x) in the case calculation of any such compliance required after delivery of financial statements for ratio or test, including the fiscal quarter ending on or about June 30Consolidated Total Net Leverage Ratio, 2014, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Consolidated Secured Net Leverage Ratio permitted for or the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01, or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Consolidated Senior Secured Net Leverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of Ratio;
(ii) testing availability under baskets set forth in this Agreement (including baskets measured as a percentage of Consolidated EBITDA); or
(iii) determining compliance with representations, warranties, Defaults or Events of Default (other than the provisions for purposes of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance 4.02); in each case, at the option of the Lead Borrower (the Lead Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless date of determination of whether the Lux Borrower any such action is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation permitted hereunder shall be deemed to accrue be the date the definitive agreement for such Limited Condition Transaction is entered into or irrevocable notice is given in respect of such transaction (or such later date as specified by the Lead Borrower in writing to the Administrative Agent from time to time) (the “LCT Test Date”), and if, after giving Pro Forma Effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith as if they had occurred at an interest rate reasonably determined by a responsible financial or accounting officer the beginning of the Borrower Representative most recent Test Period ending prior to be the rate LCT Test Date, the Parent or any of interest implicit the Restricted Subsidiaries would have been permitted to take such action on the relevant LCT Test Date in compliance with such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime ratio, test or similar ratebasket, a eurocurrency interbank offered ratesuch ratio, test or other rate, basket shall be deemed to have been based upon complied with for all purposes; provided that if financial statements for one or more subsequent fiscal periods shall have been delivered pursuant to this Agreement, the rate actually chosenLead Borrower may elect, orin its sole discretion, to redetermine all such ratios, tests or baskets on the basis of such financial statements, in which case such date or redetermination shall thereafter be deemed to be the applicable date the definitive agreements for such Limited Condition Transaction are entered into. For the avoidance of doubt, if nonethe Lead Borrower has made an LCT Election and any of the ratios, tests or baskets for which compliance was determined or tested as of the LCT Test Date would have failed to have been satisfied as a result of fluctuations in any such ratio, test or basket (including due to fluctuations of the target of any Limited Condition Transaction), including due to fluctuations in Consolidated EBITDA or Total Assets, at or prior to the consummation of the relevant transaction or action, such baskets, tests or ratios will not be deemed to have been exceeded or failed to have been satisfied as a result of such fluctuations. If the Lead Borrower has made an LCT Election for any Limited Condition Transaction, then based upon in connection with any event or transaction occurring after the relevant LCT Test Date and prior to the earlier of (i) the date on which such optional rate chosen Limited Condition Transaction is consummated or (ii) the date that the definitive agreement or date for redemption, repurchase, defeasance, satisfaction and discharge or repayment specified in an irrevocable notice for such Limited Condition Transaction is terminated, expires or passes, as the Borrower Representative may designate; and
applicable, without consummation of such Limited Condition Transaction (4a “Subsequent Transaction”) interest on any Indebtedness under in connection with which a revolving credit facility ratio, test or a Qualified Receivables Financing computed basket availability calculation must be made on a pro forma basis shall be computed based upon the average daily balance or giving pro forma effect to such Subsequent Transaction, for purposes of determining whether such Indebtedness during the applicable period; and
(5) to the extent not already covered aboveratio, test or basket availability has been complied with under this Agreement, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any ratio, test or basket shall be required to be satisfied on a pro forma calculation may includebasis assuming such Limited Condition Transaction and other transactions in connection therewith have been consummated; provided that, without limitation, (1) adjustments calculated in accordance solely with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect respect to any Pro Forma Cost Savings and (3) all adjustments described such ratio, test or basket calculated with respect to a Restricted Payment or payment on Schedule 1.01(a) to account of Indebtedness under any Junior Financing, the extent calculation of any such adjustmentsratio, without duplication, continue test or basket shall be required to be applicable to the Reference Period satisfied on a non-pro forma basis until such time as such Subsequent Transaction is actually consummated.
(as defined in h) For purposes of the definition of “Applicable ECF Percentage”, (i) the Consolidated Senior Secured Net Leverage Ratio shall be recalculated to give Pro Forma Basis”); provided that Effect to (A) if the Lead Borrower elects any deduction be made pursuant to the clauses (B)(1) through (4) of Section 2.05(b)(i) after the end of the relevant fiscal year and prior to the time such adjustments that consist Excess Cash Flow prepayment is due, any cash pay-downs or reductions made after the end of reductions in costs the relevant fiscal year and other operating improvements or synergies prior to the time the applicable Excess Cash Flow prepayment is due and (B) any repayments of the Loan to be made pursuant to Section 2.05(b)(i) utilizing such Excess Cash Flow and (ii) the Consolidated Senior Secured Net Leverage Ratio for the succeeding fiscal year shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “not give Pro Forma Cost SavingsEffect to such cash pay-downs or reductions.”
Appears in 1 contract
Samples: Credit Agreement (Redwire Corp)
Pro Forma Calculations. Notwithstanding anything to the contrary herein (subject to Section 1.02(j1.02(i)), the Consolidated Cash Interest Expense, Consolidated Interest Expense, the Consolidated First Lien Net Leverage Ratio, the Consolidated Total Net Leverage Ratio and Ratio, the Fixed Charge Consolidated Senior Secured Net Leverage Ratio, the Consolidated Interest Coverage Ratio Ratio, Consolidated EBITDA, Consolidated Net Income, Four Quarter Consolidated EBITDA, Consolidated Total Assets and Consolidated Net Tangible Assets shall be calculated (including including, in each case, for purposes of Sections 2.14 and 2.15) on a Pro Forma Basis with respect to each Specified Transaction occurring during the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four-quarter period but not later than (including, with respect to any proposed Investment or acquisition pursuant to Rule 2.7 of The City Code on Takeovers and Mergers (or a similar arrangement) for which committed financing is obtained or is sought to be obtained, the date of relevant determination or calculation may be made with respect to an event occurring or intended to occur subsequent to such calculationfour-quarter period); provided that notwithstanding the foregoing, when calculating the Consolidated First Lien Net Leverage Ratio for purposes of (i) determining the applicable percentage of Excess Cash Flow for purposes of Section 2.05(b), (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenant, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four quarter period shall not be given Pro Forma Effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenant, (x) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01, or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savings.”
Appears in 1 contract
Samples: First Lien Credit Agreement
Pro Forma Calculations. Notwithstanding anything to the contrary herein (subject to Section 1.02(j))contained herein, all calculations of the First Lien Net Leverage Ratio, the Consolidated Total Net Leverage Ratio and the Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 determining the Applicable Rate), the Consolidated Total Net Leverage Ratio (including and 2.15) for purposes of compliance with Section 7.11), and the Consolidated Fixed Charge Coverage Ratio, in each case, shall be made on a Pro Forma Basis with respect to each all Specified Transaction Transactions occurring during the applicable four quarter period Measurement Period to which such calculation relates, and/or subsequent to the end of such four-quarter period Measurement Period but not later than the date of such calculation; provided that provided, that, notwithstanding the foregoing, when calculating the First Lien Consolidated Total Leverage Ratio, the Consolidated Total Net Leverage Ratio Ratio, or the Consolidated Fixed Charge Coverage Ratio, in each case, for purposes of determining (i) determining the applicable percentage of Excess Cash Flow for purposes of compliance with Section 2.05(b)7.11, and/or (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenant, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four quarter period Measurement Period shall not be given Pro Forma Effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenantany financial covenant set forth in Section 7.11, (xA) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30October 31, 20142018, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Consolidated Total Net Leverage Ratio and/or the minimum Consolidated Fixed Charge Coverage Ratio, as applicable, permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.016.01(a) or (b), as applicable, or (yB) in the case of any such compliance required prior to the delivery referred to in clause (xA) above, such Pro Forma Compliance shall be determined by reference to (x) the Pro Forma Financial Statements, and (y) the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savings.”48 CHAR1\1940028v1CHAR1\1940028v4
Appears in 1 contract
Pro Forma Calculations. Notwithstanding anything to the contrary herein (subject to Section 1.02(j))contained herein, all calculations of the First Lien Net Leverage Ratio, the Total Consolidated Net Leverage Ratio and the Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 determining the Applicable Rate) and 2.15) the Consolidated Interest Coverage Ratio shall be made on a Pro Forma Basis with respect to each all Specified Transaction Transactions occurring during the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four-four quarter period but not later than the date of such calculation; provided that provided, that, notwithstanding the foregoing, when calculating the First Lien Consolidated Net Leverage Ratio and/or the Consolidated Interest Coverage Ratio for purposes of determining (i) determining the applicable percentage of Excess Cash Flow for purposes of compliance with Section 2.05(b), 7.11 and/or (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenant, any Specified Transaction and any related adjustment contemplated in the definition of “Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) Basis” that occurred subsequent to the end of the applicable four quarter period shall not be given Pro Forma Effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenantany financial covenant set forth in Section 7.11, (xA) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30, 20142022, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Consolidated Net Leverage Ratio and/or minimum Consolidated Interest Coverage Ratio, as applicable, permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01, 6.01(a) or (yb), and (B) in the case of any such compliance required prior to the delivery referred to in clause (xB) above, such Pro Forma Compliance shall be determined by reference to the Interim Financial Statements and the maximum First Lien Consolidated Net Leverage Ratio and/or minimum Consolidated Interest Coverage Ratio, as applicable, permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savings2022.”
Appears in 1 contract
Samples: Credit Agreement (GENTHERM Inc)
Pro Forma Calculations. (a) Notwithstanding anything to the contrary herein (subject to Section 1.02(j))herein, financial ratios and tests, including the First Lien Consolidated Total Net Leverage Ratio, the Consolidated Total Secured Net Leverage Ratio and the Fixed Charge Coverage Consolidated First Lien Net Leverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 and 2.15) on a Pro Forma Basis with respect to each Specified Transaction occurring during in the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four-quarter period but not later than the date of such calculationmanner prescribed by this Section 1.09; provided that notwithstanding anything to the foregoingcontrary in Section 1.09(b), (c) or (d), when (x) calculating the Consolidated First Lien Net Leverage Ratio for purposes of (i) determining the applicable percentage definition of Excess Cash Flow for purposes of Section 2.05(b), “Applicable Rate,” and (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual quarterly compliance with the financial covenant pursuant to Section 7.11 (and not Pro Forma Compliance or compliance on a Pro Forma BasisBasis for purposes of testing the permissibility of a transaction hereunder) with and (y) calculating the Financial Covenant, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions Consolidated First Lien Net Leverage Ratio for purposes of the definition of Consolidated EBITDA) “Applicable ECF Percentage”, the events described in this Section 1.09 that occurred subsequent to the end of the applicable four quarter period Test Period shall not be given Pro Forma Effectpro forma effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with In addition, whenever a financial ratio or test is to be calculated on a pro forma basis, the Financial Covenant, (x) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum “Test Period” for purposes of calculating such financial ratio or test shall be deemed to be a reference to, and shall be based on, the most recently ended Test Period for which internal financial statements of Holdings are available (as determined in good faith by the Borrower); provided that, the provisions of this sentence shall not apply for purposes of calculating the Consolidated First Lien Net Leverage Ratio permitted or the Consolidated Total Net Leverage Ratio for purposes of the definition of “Applicable Rate,” the definition of “Applicable ECF Percentage” and determining actual quarterly compliance with Section 7.11 (and not compliance on a Pro Forma Basis for purposes of testing the permissibility of a transaction hereunder), as applicable, each of which shall be based on the financial statements delivered pursuant to Section 6.01(a) or (b), as applicable, for the fiscal quarter most recently then ended relevant Test Period.
(b) For purposes of calculating any financial ratio or test, Specified Transactions (with any incurrence or repayment of any Indebtedness in connection therewith to be subject to Section 1.09(d)) that have been made (i) during the applicable Test Period and (ii) if applicable as described in Section 1.09(a), subsequent to such Test Period and prior to or simultaneously with the event for which the calculation of any such ratio or test is made shall be calculated on a pro forma basis assuming that all such Specified Transactions (and any increase or decrease in Consolidated EBITDA and the component financial statements definitions used therein attributable to any Specified Transaction) had occurred on the first day (or, in case of the determination of Total Assets, the last day) of the applicable Test Period. If since the beginning of any applicable Test Period any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Borrower or any of its Restricted Subsidiaries since the beginning of such Test Period shall have been delivered made any Specified Transaction that would have required adjustment pursuant to this Section 1.09, then such financial ratio or test (or were required Total Assets) shall be calculated to have been delivered) give pro forma effect thereto in accordance with this Section 6.011.09.
(c) Whenever pro forma effect is to be given to a Specified Transaction, or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance pro forma calculations shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate made in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined good faith by a responsible financial or accounting officer of the Borrower Representative and include, for the avoidance of doubt, the amount of “run‑rate” cost savings, operating expense reductions and synergies projected by the Borrower in good faith to be the rate realized as a result of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
specified actions taken or expected to be taken (3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed calculated on a pro forma basis as though such cost savings, operating expense reductions and synergies had been realized on the first day of such period and as if such cost savings, operating expense reductions and synergies were realized during the entirety of such period) and “run‑rate” means the full recurring benefit for a period that is associated with any action taken, committed to be taken or expected to be taken (including any savings expected to result from the elimination of a public target’s compliance costs with public company requirements) net of the amount of actual benefits realized during such period from such actions, and any such adjustments shall be computed based upon included in the average daily balance initial pro forma calculations of such Indebtedness financial ratios or tests and during any subsequent Test Period in which the applicable periodeffects thereof are expected to be realized relating to such Specified Transaction; and
provided that such amounts are (5A) reasonably supportable and quantifiable in the good faith judgment of the Borrower, (B) reasonably anticipated to be realized not later than twenty‑four (24) months after the date of such Specified Transaction, and (C) no amounts shall be added pursuant to this Section 1.09(c) to the extent not already covered aboveduplicative of any amounts that are otherwise added back in computing Consolidated EBITDA, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any whether through a pro forma calculation may includeadjustment or otherwise, without limitationwith respect to such period.
(d) In the event that the Borrower or any Restricted Subsidiary incurs (including by assumption or guarantees) or repays (including by redemption, repayment, retirement or extinguishment) any Indebtedness included in the calculations of any financial ratio or test (in each case, other than Indebtedness incurred or repaid under any revolving credit facility), (1i) adjustments calculated in accordance with Regulation S-X under during the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Test Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savings.”or
Appears in 1 contract
Samples: First Lien Credit Agreement (Jason Industries, Inc.)
Pro Forma Calculations. (a) Notwithstanding anything to the contrary herein (subject to Section 1.02(j))herein, financial ratios and tests, including the First Lien Net Leverage Ratio, the Total Secured Net Leverage Ratio and the Fixed Charge Coverage Ratio Total Net Leverage Ratio, and compliance with covenants determined by reference to Consolidated Net Tangible Assets EBITDA or Total Assets, shall be calculated (including for purposes of Sections 2.14 and 2.15) on a Pro Forma Basis with respect to each Specified Transaction occurring during in the applicable four quarter period to which such calculation relatesmanner prescribed by this Section 1.07; provided, and/or subsequent that notwithstanding anything to the end contrary in clauses (b), (c), (d) or (f) of such four-quarter period but not later than the date of such calculation; provided that notwithstanding the foregoingthis Section 1.07, (A) when calculating the First Lien Net Leverage Ratio any such ratio or test for purposes of (i) determining the applicable percentage definition of Excess Cash Flow for purposes of Section 2.05(b)“Applicable Rate”, and (ii) Section 6.12 (other than for the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) purpose of determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with Section 6.12), the Financial Covenant, any Specified Transaction and any related adjustment contemplated events described in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) this Section 1.07 that occurred subsequent to the end of the applicable four quarter period Test Period shall not be given Pro Forma EffectEffect and cash and Permitted Investments included on the consolidated balance sheet of the Borrower and its Restricted Subsidiaries as of the date of the event for which the calculation of any such ratio is made shall be taken into account in lieu of cash or Permitted Investments as of the last day of the relevant Test Period and (B) when calculating any such ratio or test for purposes of the incurrence of any Indebtedness, cash and Permitted Investments resulting from the incurrence of any such Indebtedness shall be excluded from the pro forma calculation of any applicable ratio or test. For In addition, whenever a financial ratio or test is to be calculated on a Pro Forma Basis, the reference to the “Test Period” for purposes of calculating such financial ratio or test shall be deemed to be a reference to, and shall be based on, the most recently ended Test Period for which internal financial statements of the Borrower are available (as determined in good faith by the Borrower) (it being understood that for purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with Section 6.12, if no Test Period with an applicable level cited in Section 6.12 has passed, the Financial Covenantapplicable level shall be the level for the first Test Period cited in Section 6.12 with an indicated level).
(b) For purposes of calculating any financial ratio or test or compliance with any covenant determined by reference to Consolidated EBITDA or Total Assets, Specified Transactions (xwith any incurrence or repayment of any Indebtedness in connection therewith to be subject to clause (d) of this Section 1.07) that (i) have been made during the applicable Test Period or (ii) if applicable as described in clause (a) above, have been made subsequent to such Test Period and prior to or substantially concurrently with the event for which the calculation of any such ratio is made shall be calculated on a Pro Forma Basis assuming that all such Specified Transactions (and any increase or decrease in Consolidated EBITDA, Total Assets and the component financial definitions used therein attributable to any Specified Transaction) had occurred on the first day of the applicable Test Period (or, in the case of Total Assets, on the last day of the applicable Test Period). If since the beginning of any applicable Test Period any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Borrower or any of its Restricted Subsidiaries since the beginning of such compliance Test Period shall have made any Specified Transaction that would have required after delivery of adjustment pursuant to this Section 1.07, then such financial statements for the fiscal quarter ending on ratio or about June 30, 2014, such test (or Total Assets) shall be calculated to give Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) Effect thereto in accordance with this Section 6.01, or 1.07.
(yc) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Whenever Pro Forma Compliance Effect is to be given to a Specified Transaction, the pro forma calculations shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate made in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined good faith by a responsible financial or accounting officer of the Borrower Representative and, in the case of any “Test Period” determined by reference to internal financial statements of the Borrower (as opposed to the financial statements most recently delivered pursuant to Section 5.01(a) or Section 5.01(b)), as set forth in a certificate of a responsible financial or accounting officer of the Borrower (with supporting calculations), and may include, for the avoidance of doubt, the amount of “run-rate” cost savings, operating expense reductions and synergies resulting from or relating to, any Specified Transaction (including the Transactions) to the extent permitted by the definition of “Consolidated EBITDA.”
(d) In the event that the Borrower or any Restricted Subsidiary incurs (including by assumption or guarantees) or repays (including by repurchase, redemption, repayment, retirement, discharge, defeasance or extinguishment) any Indebtedness (in each case, other than Indebtedness incurred or repaid (other than Indebtedness incurred or repaid (other than any repayment from the proceeds of other Indebtedness) under any revolving credit facility unless such Indebtedness has been permanently repaid and not replaced)) subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then such financial ratio or test shall be calculated giving Pro Forma Effect to such incurrence, assumption, guarantee, repurchase, redemption, repayment, retirement, discharge, defeasance or extinguishment of Indebtedness, or such issuance, repurchase or redemption of Disqualified Stock, in each case to the extent required, as if the same had occurred on the last day of the applicable Test Period.
(e) [Reserved]
(f) As relates to any action being taken solely in connection with a Limited Condition Transaction, for purposes of:
(i) determining compliance with any provision of this Agreement (other than the Financial Covenant) which requires the calculation of any financial ratio or test, including the First Lien Net Leverage Ratio, Secured Net Leverage Ratio and Total Net Leverage Ratio, or
(ii) testing availability under baskets set forth in this Agreement (including baskets determined by reference to Consolidated EBITDA or Total Assets), in each case, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), the date of determination of whether any such action is permitted hereunder shall be deemed to be the rate date the definitive agreements for such Limited Condition Transaction are entered into (the “LCT Test Date”), and if, after giving Pro Forma Effect to the Limited Condition Transaction (and the other transactions to be entered into in connection therewith, including any incurrence of interest implicit Indebtedness and the use of proceeds thereof, as if they had occurred on the first day of the most recent Test Period ending prior to the LCT Test Date (except with respect to any incurrence or repayment of Indebtedness for purposes of the calculation of any leverage-based test or ratio, which shall in each case be treated as if they had occurred on the last day of such Capitalized Lease Obligation Test Period)), the Borrower or any of its Restricted Subsidiaries would have been permitted to take such action on the relevant LCT Test Date in accordance compliance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime such ratio, test or similar ratebasket, a eurocurrency interbank offered ratesuch ratio, test or other rate, basket shall be deemed to have been based upon complied with; provided that if financial statements for one or more subsequent fiscal periods shall have become available, the rate actually chosenBorrower may elect, orin its sole discretion, to redetermine all such ratios, tests or baskets on the basis of such financial statements, in which case, such date of redetermination shall thereafter be deemed to be the applicable LCT Test Date. For the avoidance of doubt, if nonethe Borrower has made an LCT Election and any of the ratios, tests or baskets for which compliance was determined or tested as of the LCT Test Date would have failed to have been complied with as a result of fluctuations in any such ratio, test or basket, including due to fluctuations in Consolidated EBITDA or Total Assets of the Borrower or the Person subject to such Limited Condition Transaction, at or prior to the consummation of the relevant transaction or action, such baskets, tests or ratios will not be deemed to have failed to have been complied with as a result of such fluctuations. If the Borrower has made an LCT Election for any Limited Condition Transaction, then based upon in connection with any calculation of any ratio, test or basket availability with respect to the incurrence of Indebtedness or Liens, the making of Restricted Payments, the making of any Investment, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of the Borrower, the prepayment, redemption, purchase, defeasance or other satisfaction of Indebtedness, or the designation of an Unrestricted Subsidiary (each, a “Subsequent Transaction”) following the relevant LCT Test Date and prior to the earlier of the date on which such optional rate chosen as Limited Condition Transaction is consummated or the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility date that the definitive agreement or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance irrevocable notice for such Limited Condition Transaction is terminated or expires without consummation of such Indebtedness during the applicable period; and
(5) to the extent not already covered aboveLimited Condition Transaction, for purposes of determining whether such Subsequent Transaction is permitted under this Agreement, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may includeratio, without limitation, test or basket shall be required to be satisfied (1i) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any on a Pro Forma Cost Savings Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated and (3ii) all adjustments described on Schedule 1.01(a) to the extent assuming such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs Limited Condition Transaction and other operating improvements or synergies shall be calculated transactions in accordance with, connection therewith (including any incurrence of Indebtedness and satisfy the requirements specified in, the definition use of “Pro Forma Cost Savingsproceeds thereof) have not been consummated.”
Appears in 1 contract
Pro Forma Calculations. (a) Notwithstanding anything to the contrary herein herein, for purposes of this Agreement and the other Loan Documents, (subject to Section 1.02(j)), A) the First Lien Net Leverage Ratio, the Secured Net Leverage Ratio, the Total Net Leverage Ratio Ratio, the Cash Interest Coverage Ratio, Consolidated EBITDA and the Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets other financial calculations shall be calculated (including including, but not limited to, for purposes of Sections 2.14 and 2.15Section 2.14) on a Pro Forma Basis with respect to each Specified Transaction occurring during the applicable four quarter period to which such calculation relates, and/or or subsequent to the end of such four-quarter period but not later than the date of such calculation; provided that notwithstanding the foregoing, when calculating the First Lien Net Leverage Ratio and the Secured Net Leverage Ratio, as applicable, for purposes of determining (ia) determining the applicable percentage of Excess Net Cash Flow for purposes of Proceeds from Dispositions and Casualty Events set forth in Section 2.05(b), (iib) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenantmaximum First Lien Net Leverage Ratio pursuant to Section 7.11, any Specified Transaction and any related adjustment contemplated (c) the Applicable Rate and the Revolving Commitment Fee Percentage, the events described in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four quarter period shall not be given Pro Forma Effect. For purposes Effect and (B) when calculating availability under any basket consisting of determining compliance a percentage of Consolidated EBITDA, such calculation shall be made on a Pro Forma Basis.
(b) Notwithstanding anything to the contrary herein, in connection with any provision of this Agreement which requires Pro Forma Compliance action required to be taken in connection with a Limited Condition Transaction, for purposes of:
(i) calculating the Financial Covenant, (x) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio, the Secured Net Leverage Ratio, the Total Net Leverage Ratio permitted or the Cash Interest Coverage Ratio and other financial calculations (including, but not limited to, for purposes of Section 2.14);
(ii) determining compliance with representations, warranties, Defaults or Events of Default; or
(iii) testing availability under covenant baskets set forth in this Agreement (including covenant baskets measured as a percentage of Consolidated EBITDA); in each case, at the fiscal quarter most recently then ended option of the Borrower (which the Borrower shall not be required to notify the Administrative Agent or any Lender) (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), the date of determination shall be deemed to be the date the definitive agreement for which financial statements such Limited Condition Transaction is entered into (the “LCT Test Date”), and if, after giving Pro Forma Effect to the Limited Condition Transaction and the other transactions required to be entered into in connection therewith (including any incurrence or repayment of Indebtedness and the use of proceeds thereof) as of the LCT Test Date, the Borrower would have been delivered (permitted to take such action on the relevant LCT Test Date in compliance with such ratio, test or were required basket, such ratio, test or basket shall be deemed to have been deliveredcomplied with; provided that availability under any ratio and the determination of whether the relevant condition is satisfied may in any event be recalculated, at the option of the Borrower, on the closing date of the Limited Condition Transaction; provided, further, that with respect to any determination of whether a Default or Event of Default condition is satisfied, such condition shall only be satisfied if there is no continuing Default or Event of Default as of the LCT Test Date and no Specified Event of Default at the time the applicable Limited Condition Transaction is consummated. For the avoidance of doubt, if the Borrower has made an LCT Election and any of the ratios, tests or baskets for which compliance was determined or tested as of the LCT Test Date are exceeded as a result of fluctuations in any such ratio, test or basket, including due to fluctuations in Consolidated EBITDA of the Borrower or the Person subject to such Limited Condition Transaction, at or prior to the consummation of the relevant transaction or action, such baskets, tests or ratios will not be deemed to have been exceeded as a result of such fluctuations. If the Borrower has made an LCT Election for any Limited Condition Transaction, then in connection with any calculation of any ratio, test or basket availability with respect to any transaction required to be entered into in connection with such Limited Condition Transaction following the relevant LCT Test Date and prior to the earlier of the date on which such Limited Condition Transaction is consummated or the date that the definitive agreement for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, for purposes of determining whether any such required transaction is permitted under this Agreement, any such ratio, test or basket shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and such other required transaction (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated. If the Borrower has made an LCT Election for any Limited Condition Transaction, then in accordance connection with Section 6.01any calculation of any other ratio, test or basket availability with respect to the incurrence of Indebtedness or Liens, the making of Restricted Payments, the making of any permitted Investment, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of the Borrower, the prepayment, redemption, purchase, defeasance or other satisfaction of Indebtedness, or the designation of an Unrestricted Subsidiary, in each case, not required to be entered into in connection with the applicable Limited Condition Transaction (a “Subsequent Transaction”) following the relevant LCT Test Date and prior to the earlier of (x) the date on which such Limited Condition Transaction is consummated or (y) in the case date that the definitive agreement for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction (or the date on which the Borrower demonstrates to the Administrative Agent that it has elected not to pursue such Limited Condition Transaction), for purposes of determining whether such Subsequent Transaction is permitted under this Agreement, any such compliance required prior to the delivery referred to in clause (x) aboveratio, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) test or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance basket shall be required regardless to be satisfied on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions to be entered into in connection therewith (including any incurrence of whether Indebtedness and the Lux Borrower is otherwise required to comply with such covenant under the terms use of Section 7.08 at such time. For purposes of making any computation referred to above:proceeds thereof) have been consummated.
(1c) if If any Indebtedness bears a floating rate of interest and is being given pro forma effectPro Forma Effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for on which a determination under this definition the calculation of the Cash Interest Coverage Ratio is made had been the applicable rate for the entire period (taking into account any Swap Contracts interest hedging arrangements applicable to such Indebtedness if Indebtedness); provided that, in the case of repayment of any Indebtedness, to the extent actual interest related thereto was included during all or any portion of such Swap Contracts has a remaining term in excess period, the actual interest may be used for the applicable portion of 12 months);
(2) interest such period. Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer Responsible Officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest . Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency the London interbank offered rate, rate or other rate, shall be deemed determined to have been based upon the rate actually chosen, or, or if none, then based upon such optional rate chosen as the Borrower Representative or Restricted Subsidiary may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savings.”
Appears in 1 contract
Pro Forma Calculations. Notwithstanding anything to (a) For purposes of calculating the contrary herein (subject to Section 1.02(j)), the First Lien Net Leverage Ratio, the Total Net Leverage Ratio and the Consolidated Fixed Charge Coverage Ratio and the Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 and 2.15) on a Pro Forma Basis with respect to each Specified Transaction occurring during the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four-quarter period but not later than the date of such calculation; provided that notwithstanding the foregoing, when calculating the First Lien Net Leverage Ratio for purposes of any purpose hereunder (including Permitted Acquisitions, Permitted Restricted Payments, Section 2.1(d) and Section 8.7), such calculations shall be made on a pro forma basis as follows:
(i) determining Consolidated Funded Indebtedness shall be calculated on the applicable percentage relevant date of Excess Cash Flow for purposes measurement of Section 2.05(bthe Consolidated Net Leverage Ratio (whether the last day of a Fiscal Quarter or the date of a transaction with respect to which pro forma compliance is required), (ii) but in the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance case of measurement in connection with any event hereunder (and not Pro Forma Compliance or for periodic compliance on a Pro Forma Basis) with the Financial Covenantfinancial covenants under Section 8.7), any giving pro forma effect to all Indebtedness to be incurred or repaid on such date (whether in connection with a Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions Transaction, a Permitted Restricted Payment, an increase of the definition Aggregate Commitments or the addition of Consolidated EBITDAan additional Term Loan pursuant to Section 2.1(d), or any other transaction for which pro forma compliance is being measured) that occurred subsequent to the end of the applicable four quarter period shall not be given Pro Forma Effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenant, (x) and in the case of any such compliance required after delivery computation in connection with any increase or additional Term Loan pursuant to Section 2.1(d) the entire amount of financial statements such increase and/or additional Term Loan shall be assumed to be drawn; (ii) Consolidated EBITDA shall be calculated for the fiscal quarter ending on or about June 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter period of four Fiscal Quarters most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01, or (y) in the case of any such compliance required prior periodic financial covenant compliance, are being) delivered, but giving pro forma effect to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:Specified 41 130164155_5
(1b) if Whenever any Indebtedness bears a floating rate of interest and financial covenant is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis hereunder, the pro forma calculations shall be computed based upon made in good faith by an Authorized Officer and in a manner reasonably acceptable to the average daily balance Administrative Agent, subject, in the case of any Permitted Acquisition, to the Administrative Agent’s receipt of financial statements or other financial data with respect to the acquired Person or business reasonably acceptable to the Administrative Agent, including (i) the most recent financial statements with respect to the acquired Person or business prepared by such Indebtedness during acquired Person or the applicable period; and
seller thereof and (5ii) to the extent not already covered aboveavailable, the most recent audited and interim unaudited financial statements with respect to the acquired Person.
(c) If at any time the Borrower has made an LCA Election to test a financial ratio test or condition at the time of the execution and delivery of the purchase agreement related to such Limited Condition Acquisition, then in connection with any subsequent calculation of any of the Consolidated Net Leverage Ratio or the Consolidated Fixed Charge Coverage Ratio for any purpose under this Agreement (including any basket, measurement, or for purposes of Section 8.7) following the relevant date of execution of the definitive agreement with respect to such Limited Condition Acquisition and prior to the earlier of (i) the date on which such Limited Condition Acquisition is consummated or (ii) the date that the definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any financial covenant shall be required to be satisfied both (x) on a pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent basis hereunder assuming such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs Limited Condition Acquisition and other operating improvements or synergies shall be calculated transactions in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savings.”42 130164155_5
Appears in 1 contract
Samples: Credit Agreement (Ebix Inc)
Pro Forma Calculations. Notwithstanding anything to the contrary herein (subject to Section 1.02(j1.02(i))) herein, the First Lien Net Leverage Ratio, the Total Senior Secured Net Leverage Ratio and the Fixed Charge Coverage Total Net Leverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 and 2.152.17) on a Pro Forma Basis with respect to each Specified Transaction occurring during the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four-quarter period but not later than the date of such calculation; provided that notwithstanding the foregoing, when calculating the First Lien Net Leverage Ratio for purposes of (i) determining the applicable percentage of Excess Cash Flow for purposes of Section 2.05(b), (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenantfinancial covenant set forth in Section 7.11, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four quarter period shall not be given Pro Forma Effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenantfinancial covenant set forth in Section 7.11, (x) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June September 30, 20142013, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01, or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter ending June September 30, 20142013. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.087.11) that requires compliance or Pro Forma Compliance with the Financial Covenantfinancial covenant set forth in Section 7.11, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Dutch Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 7.11 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savings.”
Appears in 1 contract
Pro Forma Calculations. Notwithstanding anything to the contrary herein (subject to Section 1.02(j))contained herein, all calculations of the First Lien Net Leverage Ratio, the Consolidated Rent-Adjusted Total Net Leverage Ratio and the Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 determining the Applicable Rate or compliance with any financial covenant set forth in Section 7.11) and 2.15) the Consolidated Fixed Charge Coverage Ratio, in each case, shall be made on a Pro Forma Basis with respect to each all Specified Transaction Transactions occurring during the applicable four quarter period Measurement Period to which such calculation relates, and/or subsequent to the end of such four-quarter period Measurement Period but not later than the date of such calculation; provided that provided, that, notwithstanding the foregoing, when calculating the First Lien Net Consolidated Rent-Adjusted Total Leverage Ratio or the Consolidated Fixed Charge Coverage Ratio, in each case, for purposes of determining (i) determining the applicable percentage of Excess Cash Flow for purposes of compliance with Section 2.05(b)7.11, and/or (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenant, any Specified Transaction and any related adjustment contemplated in the definition of “Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) Basis” that occurred subsequent to the end of the applicable four quarter period Measurement Period shall not be given Pro Forma Effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenantany financial covenant set forth in Section 7.11, (xA) in the case of any such compliance required after delivery of financial statements for the fiscal quarter Fiscal Year ending on or about June 30December 31, 20142021, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Consolidated Rent-Adjusted Total Leverage Ratio permitted for and/or the fiscal quarter most recently then ended for which financial statements have been delivered minimum Consolidated Fixed Charge Coverage
(e) Determinations or were required Calculations Made by Reference to have been delivered) in accordance with Section 6.01Most Recently Delivered Financial Statements. Notwithstanding anything to the contrary set forth herein, or (y) in the case of any such compliance required prior to the delivery referred of financial statements pursuant to in clause (xSection 6.01(a) abovefor the Fiscal Year ending December 31, such Pro Forma Compliance shall 2021, any calculation or other determination to be determined made pursuant to this Agreement by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness most recently delivered financial statements shall be calculated or determined, as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined applicable, by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) reference to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost SavingsHistorical Financial Statements.”
Appears in 1 contract
Samples: Credit Agreement (Arhaus, Inc.)
Pro Forma Calculations. Notwithstanding anything With respect to any period during which any Specified Transaction occurs, for purposes of determining compliance with the contrary herein (subject to Section 1.02(j))covenants contained in Sections 6.10 and 6.11 or otherwise for purposes of determining the Total Net Leverage Ratio, the Applicable Total Net Leverage Ratio, the First Lien Net Leverage Ratio or the Cash Interest Expense Coverage Ratio, the Total Net Leverage Ratio and the Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets calculations with respect to such period shall be calculated (including for purposes of Sections 2.14 and 2.15) made on a Pro Forma Basis Basis. In connection with respect to each Specified Transaction occurring during the applicable four quarter period to which such calculation relatesany action being taken in connection with a Limited Condition Acquisition, and/or subsequent to the end of such four-quarter period but not later than the date of such calculation; provided that notwithstanding the foregoing, when calculating the First Lien Net Leverage Ratio for purposes of (i) determining the applicable percentage of Excess Cash Flow for purposes of Section 2.05(b), (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenant, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four quarter period shall not be given Pro Forma Effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenant, (x) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01, or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions financial covenants set forth in Section 6.10 and Section 6.11) which is subject to a Default or an Event of Section 6.02(aDefault qualifier (including any representation and warranty related thereto) or Section 7.08requires the calculation of any financial ratio or test, including the First Lien Net Leverage Ratio, the Applicable Total Net Leverage Ratio and the Total Net Leverage Ratio or (ii) that requires compliance testing availability under baskets set forth in this Agreement (including baskets subject to Default or Pro Forma Compliance with Event of Default conditions), at the Financial Covenantoption of the Borrower (and if the Borrower elects to exercise such option, such compliance or Pro Forma Compliance option shall be required regardless of whether the Lux Borrower is otherwise required exercised on or prior to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date on which the definitive agreements for which a such Limited Condition Acquisition are entered into) the date of such determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of be the date the definitive agreements for such Limited Condition Acquisition are entered into (the “LCT 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), the Borrower Representative would have been permitted to be take such action on the rate of interest implicit relevant LCT Test Date in compliance with such Capitalized Lease Obligation in accordance with GAAP;
ratio, test or basket (3and any related representations, warranties, requirements and conditions), such ratio, test or basket (and any related representations, warranties, requirements and conditions) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon complied with (or satisfied). For the rate actually chosen, oravoidance of doubt, if nonethe Borrower has made an LCT Election and any of the ratios, tests or baskets for which compliance was determined or tested as of the LCT Test Date would have failed to have been complied with as a result of fluctuations in any such ratio, test or basket, at or prior to the consummation of the relevant transaction or action, such baskets, tests or ratios will not be deemed to have failed to have been complied with as a result of such fluctuations. If the Borrower has made an LCT Election for any Limited Condition Acquisition, then based upon in connection with any calculation of any ratio, test or basket availability with respect to the incurrence of Indebtedness or Liens, the making of Restricted Payments, the making of any investment permitted under Section 6.04, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of the Borrower, the prepayment, redemption, purchase, defeasance or other satisfaction of Indebtedness or any other action or transaction (each, a “Subsequent Transaction”) following the relevant LCT Test Date and prior to the earlier of the date on which such optional rate chosen as Limited Condition Acquisition is consummated or the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility date that the definitive agreement or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance irrevocable notice for such Limited Condition Acquisition is terminated or expires without consummation of such Indebtedness during the applicable period; and
(5) to the extent not already covered aboveLimited Condition Acquisition, for purposes of determining whether such Subsequent Transaction is permitted under this Agreement, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may includeratio, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated test or basket shall be required to give effect to any be satisfied on a Pro Forma Cost Savings Basis (i) 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 and (3ii) all adjustments described on Schedule 1.01(a) to the extent assuming such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs Limited Condition Acquisition and other operating improvements or synergies shall be calculated transactions in accordance with, connection therewith (including any incurrence of Indebtedness and satisfy the requirements specified in, the definition use of “Pro Forma Cost Savingsproceeds thereof) have not been consummated.”
Appears in 1 contract
Samples: Credit Agreement (American Axle & Manufacturing Holdings Inc)
Pro Forma Calculations. Notwithstanding anything to the contrary herein (subject to Section 1.02(j))contained herein, all calculations of the First Lien Net Leverage Ratio, the Total Net Consolidated Leverage Ratio and the Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 determining the Applicable Rate) and 2.15) the Consolidated Interest Coverage Ratio shall be made on a Pro Forma Basis with respect to each all Specified Transaction Transactions occurring during the applicable four quarter period Measurement Period to which such calculation relates, and/or subsequent to the end of such four-quarter period Measurement Period but not later than the date of such calculation; provided that provided, that, notwithstanding the foregoing, when calculating the First Lien Net Consolidated Leverage Ratio and/or the Consolidated Interest Coverage Ratio for purposes of determining (i) determining the applicable percentage of Excess Cash Flow for purposes of compliance with Section 2.05(b)7.11, and/or (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenant, any Specified Transaction and any related adjustment contemplated in the definition of “Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) Basis” that occurred subsequent to the end of the applicable four quarter period Measurement Period shall not be given Pro Forma Effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenantany financial covenant set forth in Section 7.11, (xA) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30July 28, 20142017, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Consolidated Leverage Ratio and/or minimum Consolidated Interest Coverage Ratio, as applicable, permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.016.01(a) or (b), or (yB) in the case of any such compliance required prior to the delivery referred to in clause (xA) above, such Pro Forma Compliance shall be determined by reference to (1)(x) Consolidated EBITDA for each Historical EBITDA Period as set forth in the last sentence of the definition of “Consolidated EBITDA” in Section 1.01, and (y) the amount of Indebtedness that would be set forth on a consolidated balance sheet of the Parent and its Subsidiaries prepared as of April 28, 2017, giving effect to the Transactions occurring on the Closing Date on a Pro Forma Basis, and (2) the maximum First Lien Net Consolidated Leverage Ratio and/or minimum Consolidated Interest Coverage Ratio, as applicable, permitted for the fiscal quarter ending June 30July 28, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savings2017.”
Appears in 1 contract
Pro Forma Calculations. (a) Notwithstanding anything to the contrary herein (subject to Section 1.02(j))herein, for purposes of this Agreement and the other Loan Documents, EBITDA, the First Lien Net Leverage Ratio, the Secured Net Leverage Ratio, the Total Net Leverage Ratio and the Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets shall be calculated (including including, but not limited to, for purposes of Sections 2.14 and 2.15Section 2.12) on a Pro Forma Basis with respect to each Specified Transaction occurring during the applicable four quarter period to which such calculation relates, and/or or subsequent to the end of such four-quarter period but not later than the date of such calculation; provided that notwithstanding the foregoing, when calculating the First Lien Net Leverage Ratio for purposes of (i) determining the applicable percentage of Excess Cash Flow for purposes and the application of Net Cash Proceeds from Dispositions and Event of Losses set forth in Section 2.05(b)2.03, (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenant, any Specified Transaction and any related adjustment contemplated events described in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four quarter period shall not be given Pro Forma Effect. For purposes of determining compliance .
(b) Notwithstanding anything to the contrary herein, in connection with any provision of this Agreement which requires Pro Forma Compliance action required to be taken in connection with a Limited Condition Transaction, for purposes of:
(i) calculating the Financial Covenant, (x) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for Ratio, the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01, or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Secured Net Leverage Ratio, the Total Net Leverage Ratio, the Fixed Charge Coverage Ratio permitted and other financial calculations (including, but not limited to, for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions purposes of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months2.12);
(2ii) interest on determining compliance with representations, warranties, Defaults or Events of Defaults; or
(iii) testing availability under covenant baskets set forth in this Agreement (including covenant baskets measured as a Capitalized Lease Obligation percentage of EBITDA), in each case, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), the date of determination shall be deemed to accrue be the date the definitive agreement for such Limited Condition Transaction is entered into or, at an interest rate reasonably determined by a responsible financial or accounting officer the option of the Borrower Representative Borrower, the date the irrevocable notice of repayment, redemption or offer to purchase is delivered, as applicable (the “LCT Test Date”), and if, after giving Pro Forma Effect to the Limited Condition Transaction and the other transactions required to be entered into in connection therewith (including any incurrence or repayment of Indebtedness and the rate use of interest implicit proceeds thereof) as if they had occurred at the beginning of the most recent test period ending prior to the LCT Test Date, the Borrower could have taken such action on the relevant LCT Test Date in compliance with such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime representation, warranty, ratio, test or similar ratebasket, a eurocurrency interbank offered ratesuch representation, warranty, ratio, test or other rate, basket shall be deemed to have been based upon complied with; provided that availability under any ratio and the rate actually chosendetermination of whether the relevant condition is satisfied may in any event be recalculated, orat the option of the Borrower, on the closing date of the Limited Condition Transaction. For the avoidance of doubt, if nonethe Borrower has made an LCT Election and any of the ratios, tests or baskets for which compliance was determined or tested as of the LCT Test Date are exceeded as a result of fluctuations in any such representations, warranties, ratio, test or basket, including due to fluctuations in EBITDA of the Borrower or the Person subject to such Limited Condition Transaction, at or prior to the consummation of the relevant transaction or action, such representations, warranties, baskets, tests or ratios will not be deemed to have been exceeded as a result of such fluctuations. If the Borrower has made an LCT Election for any Limited Condition Transaction, then based upon in connection with any calculation of any representations, warranties, ratio, test or basket availability with respect to any transaction required to be entered into in connection with such optional rate chosen as Limited Condition Transaction following the Borrower Representative may designate; and
relevant LCT Test Date and prior to the earlier of (4i) interest the date on any Indebtedness under a revolving credit facility which such Limited Condition Transaction is consummated or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon (ii) the average daily balance date that the definitive agreement for such Limited Condition Transaction is terminated or expires without consummation of such Indebtedness during the applicable period; and
(5) to the extent not already covered aboveLimited Condition Transaction, for purposes of determining whether any such required transaction is permitted under this Agreement, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may includeratio, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements test or synergies basket shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in accordance withconnection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated; provided, and satisfy however, that with respect to a Limited Condition Transaction funded with any Incremental First Lien Term Facilities, covenant baskets measured as a percentage of EBITDA shall not be calculated giving Pro Forma Effect to such Limited Condition Transaction. If the requirements specified inBorrower has made an LCT Election for any Limited Condition Transaction, then in connection with any calculation of any other ratio, test or basket availability with respect to the incurrence of Indebtedness or Liens, the definition making of Restricted Payments (subject to the proviso at the end of this sentence), the making of any Permitted Investment, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of the Borrower, the prepayment, redemption, purchase, defeasance or other satisfaction of Indebtedness, or the designation of an Unrestricted Subsidiary, in each case, not required to be entered into in connection with the applicable Limited Condition Transaction (a “Subsequent Transaction”) following the relevant LCT Test Date and prior to the earlier of (x) the date on which such Limited Condition Transaction is consummated or (y) the date that the definitive agreement for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction (or the date on which the Borrower demonstrates to the Administrative Agent that it has elected not to pursue such Limited Condition Transaction), for purposes of determining whether such Subsequent Transaction is permitted under this Agreement, any such ratio, test or basket shall be required to be satisfied on a Pro Forma Cost SavingsBasis assuming such Limited Condition Transaction and other transactions required to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated; provided, in the case of Restricted Payments (other than Investments) such ratio tests and baskets will be tested both as if such transaction had been consummated and as if such transaction had not been consummated.”
Appears in 1 contract
Pro Forma Calculations. Notwithstanding anything to the contrary herein contained herein, all calculations of the Consolidated Net Leverage Ratio (subject to Section 1.02(j)including for purposes of determining the Applicable Rate), the Consolidated First Lien Net Leverage Ratio, the Total Net Leverage Ratio and the Fixed Charge Consolidated Interest Coverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 and 2.15) made on a Pro Forma Basis with respect to each all Specified Transaction Transactions occurring during the applicable four quarter period Measurement Period to which such calculation relates, and/or subsequent to the end of such four-quarter period Measurement Period but not later than the date of such calculation; provided that provided, that, notwithstanding the foregoing, when calculating the First Lien Consolidated Net Leverage Ratio and/or the Consolidated Interest Coverage Ratio for purposes of determining (i) determining the applicable percentage of Excess Cash Flow for purposes of compliance with Section 2.05(b)7.11, and/or (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenant, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four quarter period Measurement Period shall not be given Pro Forma Effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenantany financial covenant set forth in Section 7.11, (x) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30, 20142016, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Consolidated Net Leverage Ratio and/or minimum Consolidated Interest Coverage Ratio, as applicable, permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.016.01(a) or (b), or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Consolidated Net Leverage Ratio and/or minimum Consolidated Interest Coverage Ratio, as applicable, permitted for the fiscal quarter ending June 30, 20142016. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) The parties hereto acknowledge and agree that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For for purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effectall calculations hereunder, the interest on such principal amount of Convertible Bond Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period outstanding principal (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2or notional) interest on a Capitalized Lease Obligation shall be deemed to accrue amount thereof, valued at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savingspar.”
Appears in 1 contract
Samples: Credit Agreement (Aerojet Rocketdyne Holdings, Inc.)
Pro Forma Calculations. (a) Notwithstanding anything to the contrary herein (subject to Section 1.02(j))herein, for purposes of determining compliance with any test or covenant contained in this Agreement, the Consolidated Total First Lien Net Leverage Ratio, the Total Net Leverage Debt to Consolidated EBITDA Ratio and the Fixed Charge Coverage Consolidated Total Net Debt to Consolidated EBITDA Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 and 2.152.17) on a Pro Forma Basis with respect to each Specified Transaction occurring during the applicable four eight quarter period to which such calculation relates, and/or subsequent to the end of such four-eight quarter period but not later than the date of such calculation; provided that notwithstanding the foregoing, when calculating the Consolidated Total First Lien Net Leverage Debt to Consolidated EBITDA Ratio and the Consolidated Total Net Debt to Consolidated EBITDA Ratio, as applicable, for purposes of (i) determining the applicable percentage of Excess Cash Flow for purposes of Section 2.05(b), ) and (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and but not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenantfinancial covenant set forth in Section 7.11, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four eight quarter period shall not be given Pro Forma Effect. .
(b) For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenantfinancial covenant set forth in Section 7.11 or calculation of the Consolidated Total First Lien Net Debt to Consolidated EBITDA Ratio or the Consolidated Total Net Debt to Consolidated EBITDA Ratio, (x) in the case of any such compliance Pro Forma Compliance required after delivery of financial statements for the fiscal quarter Fiscal Quarter ending on or about June March 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum Consolidated Total First Lien Net Leverage Debt to Consolidated EBITDA Ratio permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01Test Period, or (y) in the case of any such compliance Pro Forma Compliance or ratio calculation required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum Consolidated Total First Lien Net Leverage Debt to Consolidated EBITDA Ratio permitted for the fiscal quarter Fiscal Quarter ending June March 30, 2014. 2014 and, if no Section 6.01 Financials have been delivered to the Administrative Agent at such time, such compliance and ratio shall be calculated based on Consolidated EBITDA for the four consecutive fiscal quarters of the Borrower ended December 29, 2013.
(c) With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.087.11) that requires compliance or Pro Forma Compliance with the Financial Covenantfinancial covenant set forth in Section 7.11, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 7.11 at such time. For .
(d) In connection with any Specified Transaction being taken in connection with a Limited Condition Acquisition, for purposes of making (x) determining compliance with any computation referred provision of this Agreement which requires Pro Forma Compliance with the financial covenant set forth in Section 7.11 or calculation of the Consolidated Total Net Debt to above:
Consolidated EBITDA Ratio or the Consolidated Total First Lien Net Debt to Consolidated EBITDA Ratio or (1y) testing baskets set forth in Article VII of this Agreement (including baskets measured as a percentage of Consolidated Total Assets), the date of determination, incurrence or establishment, as applicable, shall, at the option of the Borrower, be the time the definitive agreements for such Limited Condition Acquisition are entered into after giving effect to the Limited Condition Acquisition and the other Specified Transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) as if they occurred at the beginning of the applicable Test Period, and, for the avoidance of doubt, if any Indebtedness bears of such baskets or ratios are exceeded as a floating rate result of interest and is being given pro forma effectfluctuations in such ratio or basket, the interest on such Indebtedness shall be calculated as if the rate including due to fluctuations in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial Consolidated EBITDA or accounting officer Consolidated Total Assets of the Borrower Representative or the Person subject to be such Limited Conditional Acquisition, at or prior to the rate consummation of interest implicit in the relevant transaction or action, such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime baskets or similar rate, a eurocurrency interbank offered rate, or other rate, shall ratios will not be deemed to have been based upon the rate actually chosen, or, exceeded as a result of such fluctuations; provided that if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
has made such an election, in connection with the calculation of any ratio availability with respect to the incurrence of Indebtedness or Liens, or the making of Investments, Restricted Payments, prepayments of Junior Financing, Dispositions, fundamental changes under Section 7.04 or the designation of an Unrestricted Subsidiary (4but, for the avoidance of doubt, excluding, for purposes of calculating the financial covenant set forth in Section 7.11) interest on or following the date of such election 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, any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed such ratio shall be calculated on a pro forma basis shall be computed based upon Pro Forma Basis assuming such Limited Condition Acquisitions and other Specified Transactions in connection therewith (including any incurrence of Indebtedness and the average daily balance use of such Indebtedness during the applicable period; and
(5proceeds thereof) have been consummated, except to the extent not already covered abovethat such calculation would result in a lower Consolidated Total Net Debt to Consolidated EBITDA Ratio or Consolidated Total First Lien Net Debt to Consolidated EBITDA Ratio, as applicable, than would apply if such calculation was made without giving Pro Forma Effect to such Limited Condition Acquisition and the other Specified Transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof).
(e) For purposes of calculating the principal amount of Indebtedness permitted to be incurred pursuant to (w) either Section 2.14(a) or Section 2.17(a), in each case, in reliance on clause (y) of the definition “Incremental Amount,” (x) Section 7.03(f), (y) Section 7.03(o) or (z) Section 7.03(v) in reliance of the ratio test in clause (B) of the proviso of the definition of Permitted Additional Debt (collectively, the “Ratio-Based Debt Baskets”), any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may includeof the Consolidated Total Net Debt to Consolidated EBITDA Ratio or the Consolidated Total First Lien Net Debt to Consolidated EBITDA Ratio, as applicable, shall be determined (x) without limitation, netting the proceeds thereof and (1y) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give without giving effect to any Pro Forma Cost Savings and other incurrence of Indebtedness on the date of determination pursuant to any clause or sub-clause of Section 7.03 other than a Ratio-Based Debt Basket.
(3f) all adjustments described on Schedule 1.01(a) to For purposes of calculating the extent such adjustments, without duplication, continue amount of Liens permitted to be applicable incurred pursuant to the Reference Period (as defined x) (solely with respect to Indebtedness incurred pursuant to Section 2.14(a) in reliance of clause (y) of the definition of “Pro Forma BasisIncremental Amount”) Section 7.01(a); provided that any such adjustments that consist , (y) (solely with respect to Indebtedness incurred pursuant to Section 2.17(a) in reliance of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, clause (y) of the definition of “Pro Forma Cost SavingsIncremental Amount”) Section 7.01(gg)(ii) or (z) Section 7.01(gg)(v) (collectively, the “Ratio-Based Lien Baskets”), any pro forma calculation of the Consolidated Total First Lien Net Debt to Consolidated EBITDA Ratio shall be determined without giving effect to any other incurrence of Liens on the date of determination pursuant to any clause or sub-clause of Section 7.01 other than a Ratio-Based Lien Basket.”
Appears in 1 contract
Samples: Credit Agreement (Tribune Media Co)
Pro Forma Calculations. (a) Notwithstanding anything to the contrary herein (subject to Section 1.02(j))herein, for purposes of determining compliance with any test or covenant contained in this Agreement, the First Lien Consolidated Total Secured Net Leverage Ratio, the Total Net Leverage Debt to Consolidated EBITDA Ratio and the Fixed Charge Coverage Consolidated Total Net Debt to Consolidated EBITDA Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 and 2.152.17) on a Pro Forma Basis with respect to each Specified Transaction occurring during the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four-four quarter period but not later than the date of such calculation; provided that notwithstanding the foregoing, when calculating the First Lien Consolidated Total Secured Net Leverage Debt to Consolidated EBITDA Ratio and the Consolidated Total Net Debt to Consolidated EBITDA Ratio, as applicable, for purposes of (i) determining the applicable percentage of Excess Cash Flow for purposes of Section 2.05(b), (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenant, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four quarter period shall not be given Pro Forma Effect. .
(b) For purposes of the calculation of the Consolidated Total Secured Net Debt to Consolidated EBITDA Ratio or the Consolidated Total Net Debt to Consolidated EBITDA Ratio, if no Section 6.01 Financials have been delivered to the Administrative Agent at such time, such ratio shall be calculated based on Consolidated EBITDA for the four consecutive fiscal quarters of the Borrower ended March 30, 2014.
(c) [Reserved].
(d) 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 Pro Forma Compliance with the Financial Covenant, calculation of the Consolidated Total Net Debt to Consolidated EBITDA Ratio or the Consolidated Total Secured Net Debt to Consolidated EBITDA Ratio; or
(xii) testing baskets set forth in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01, or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than including baskets measured as a percentage of Consolidated Total Assets); in each case, at the provisions option of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Acquisition, an “LCA Election”), the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless date of determination of whether the Lux Borrower any such action is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effectpermitted hereunder, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue 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) as if they had occurred at an interest rate reasonably determined by a responsible financial or accounting officer the beginning of the applicable Test Period, the Borrower Representative to be could have taken such action on the rate of interest implicit relevant LCA Test Date in compliance with such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime ratio or similar ratebasket, a eurocurrency interbank offered rate, such ratio or other rate, basket shall be deemed to have been based upon complied with. For the rate actually chosen, oravoidance of doubt, if nonethe 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 of 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 the Borrower has made an LCA Election for any Limited Condition Acquisition, then based upon 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 Investments, Restricted Payments, prepayments of Junior Financing, Dispositions, fundamental changes under Section 7.04 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 optional rate chosen as Limited Condition Acquisition is consummated or the Borrower Representative may designate; and
(4) interest on definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition, any Indebtedness under a revolving credit facility such ratio or a Qualified Receivables Financing computed basket shall be calculated on a pro forma basis shall be computed based upon Pro Forma Basis assuming such Limited Condition Acquisition and other transactions in connection therewith (including any incurrence of Indebtedness and the average daily balance use of such Indebtedness during the applicable period; and
(5proceeds thereof) have been consummated, except to the extent not already covered abovethat such calculation would result (x) in a lower Consolidated Total Net Debt to Consolidated EBITDA Ratio or Consolidated Total Secured Net Debt to Consolidated EBITDA Ratio, as applicable, or (y) a larger basket than would apply if such calculation was made without giving Pro Forma Effect to such Limited Condition Acquisition or other actions to be taken in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof).
(e) For purposes of calculating the principal amount of Indebtedness permitted to be incurred pursuant to (w) either Section 2.14(a) or Section 2.17(a), in each case, in reliance on clause (y) of the definition “Incremental Amount,” (x) Section 7.03(f), (y) Section 7.03(o) or (z) Section 7.03(v) in reliance of the ratio test in clause (B) of the proviso of the definition of Permitted Additional Debt (collectively, the “Ratio-Based Debt Baskets”), any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may includeof the Consolidated Total Net Debt to Consolidated EBITDA Ratio or the Consolidated Total Secured Net Debt to Consolidated EBITDA Ratio, without limitationas applicable, shall be determined (1) adjustments calculated in accordance with Regulation S-X under without netting the Securities Act, proceeds thereof and (2) adjustments calculated to give without giving effect to any Pro Forma Cost Savings and other incurrence of Indebtedness on the date of determination pursuant to any clause or sub-clause of Section 7.03 other than a Ratio-Based Debt Basket.
(3f) all adjustments described on Schedule 1.01(a) to For purposes of calculating the extent such adjustments, without duplication, continue amount of Liens permitted to be applicable incurred pursuant to the Reference Period (as defined x) (solely with respect to Indebtedness incurred pursuant to Section 2.14(a) in reliance of clause (y) of the definition of “Pro Forma BasisIncremental Amount”) Section 7.01(a); provided that any such adjustments that consist , (y) (solely with respect to Indebtedness incurred pursuant to Section 2.17(a) in reliance of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, clause (y) of the definition of “Pro Forma Cost SavingsIncremental Amount”) Section 7.01(gg)(ii) or (z) Section 7.01(gg)(v) (collectively, the “Ratio-Based Lien Baskets”), any pro forma calculation of the Consolidated Total Secured Net Debt to Consolidated EBITDA Ratio shall be determined without giving effect to any other incurrence of Liens on the date of determination pursuant to any clause or sub-clause of Section 7.01 other than a Ratio-Based Lien Basket.”
Appears in 1 contract
Pro Forma Calculations. Notwithstanding anything to the contrary herein (subject to Section 1.02(j)), the First Lien Net Leverage Ratioherein, the Total Net Leverage Ratio and the Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 and 2.15) on a Pro Forma Basis with respect to each Specified Transaction occurring during the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four-quarter period but not later than the date of such calculation; provided that that, notwithstanding the foregoing, when calculating the First Lien Net Total Leverage Ratio for purposes of (i) determining the applicable percentage of Excess Cash Flow for purposes of Section 2.05(b), 2.04(b) and (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenantfinancial covenant set forth in Section 7.10, any Specified Transaction and any related adjustment contemplated in the definition of “Pro Forma Basis Basis” (and corresponding provisions of the definition of “Consolidated EBITDA”) that occurred subsequent to the end of the applicable four quarter period shall not be given Pro Forma Effect. For Notwithstanding the foregoing, for the purposes of determining compliance Sections 2.13 (other than in connection with an Revolving Credit Commitment Increase) and 7.02(i), with respect to any provision of this Agreement Limited Condition Acquisition only, at Parent’s option (which requires Pro Forma Compliance with the Financial Covenant, (x) election shall be made in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending writing by Parent on or about June 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01, or (y) in the case of any such compliance required prior to the delivery date the definitive acquisition agreement is entered into with respect to such Limited Condition Acquisition), the Total Leverage Ratio shall be determined, and any default or event of default blocker shall be tested, as of the date the definitive acquisition agreement for such Limited Condition Acquisition is entered into and calculated as if such Limited Condition Acquisition and other pro forma events in connection therewith were consummated on such date, provided that (i) other than as specifically provided below in this Section 1.10 the Consolidated Net Income (and any other financial defined term derived therefrom) shall not include any Consolidated Net Income of, or attributable to, the target company or assets associated with any such Limited Condition Acquisition for usages other than in connection with the applicable transaction pertaining to such Limited Condition Acquisition unless and until the closing of such Limited Condition Acquisition shall have actually occurred, (ii) the determination of the Total Leverage Ratio under this Agreement on or following the date of the definitive acquisition agreement and prior to the earlier of the date on which such acquisition is consummated or the definitive agreement for such acquisition is terminated, shall be calculated on a pro forma basis assuming such acquisition and other pro forma events in connection therewith (including any incurrence of Indebtedness) have been consummated unless, for purposes not related to such Limited Condition Acquisition, such calculation would result in a lower Total Leverage Ratio, and (iii) after the signing date but before the closing date for a Limited Condition Acquisition, the determination of ratios and baskets for purposes not related to such Limited Condition Acquisition shall be made as if the closing date had occurred on the same date as the signing date until such earlier time on which the applicable Limited Condition Acquisition is consummated, terminated or abandoned , other than to the extent such treatment would result in an increase to availability under any basket or reduction in any ratio (the proviso of this sentence shall be referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to as the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter ending June 30, 2014“Limited Condition Acquisition Proviso”). With respect to any provision of this Table of Contents Agreement (other than the provisions of Section 6.02(a) or Section 7.087.10) that requires compliance or Pro Forma Compliance with the Financial Covenantfinancial covenant set forth in Section 7.10 prior to the end of the first full fiscal quarter after the Closing Date, such compliance or Pro Forma Compliance shall be required regardless of whether with the Lux Borrower is otherwise required to comply with such financial covenant under set forth in Section 7.10 at the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer end of the Borrower Representative to be first full fiscal quarter after the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost SavingsClosing Date.”
Appears in 1 contract
Samples: Credit Agreement (Xura, Inc.)
Pro Forma Calculations. Notwithstanding anything to the contrary herein (subject to Section 1.02(j))contained herein, all calculations of the First Lien Net Leverage Ratio, the Consolidated Total Net Adjusted Leverage Ratio and the Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 determining the Applicable Rate) and 2.15) the Consolidated Fixed Charge Coverage Ratio shall be made on a Pro Forma Basis with respect to each all Specified Transaction Transactions occurring during the applicable four quarter period Measurement Period to which such calculation relates, and/or subsequent to the end of such four-quarter period Measurement Period but not later than the date of such calculation; provided that provided, that, notwithstanding the foregoing, when calculating the First Lien Consolidated Total Net Adjusted Leverage Ratio and/or the Consolidated Fixed Charge Coverage Ratio for purposes of determining (i) determining the applicable percentage of Excess Cash Flow for purposes of compliance with Section 2.05(b)7.11, and/or (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenant, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four quarter period Measurement Period shall not be given Pro Forma Effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenantany financial covenant set forth in Section 7.11, (x) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30, 20142015, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Consolidated Total Net Adjusted Leverage Ratio and/or minimum Consolidated Fixed Charge Coverage Ratio, as applicable, permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.016.01(a) or (b), or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Consolidated Total Net Adjusted Leverage Ratio and/or minimum Consolidated Fixed Charge Coverage Ratio, as applicable, permitted for the fiscal quarter ending June 30, 20142015. With Notwithstanding anything to the contrary contained herein, during the period commencing with the execution of the definitive acquisition agreement or the provision of irrevocable notice, in each case, in connection with a Limited Conditionality Accordion Transaction and ending on the earlier to occur of (x) the date of consummation of such Permitted Acquisition or such redemption or repayment and (y) the date of abandonment by the Borrower or the applicable Subsidiary of such Permitted Acquisition or such redemption or repayment, each Pro Forma Compliance Certificate (for the avoidance of doubt, excluding (A) any Compliance Certificate delivered pursuant to Section 6.02(b) and (B) the Pro Forma Compliance Certificate delivered by the Borrower to determine the permissibility of the underlying Permitted Acquisition itself (pursuant to the definition thereof)) delivered hereunder (and each other calculation on a Pro Forma Basis hereunder to determine the permissibility of a particular transaction (e.g., the incurrence of Additional Unsecured Indebtedness, etc.) shall demonstrate two (2) calculations of each of the relevant covenants set forth in Section 7.11; the first shall assume that the applicable Permitted Acquisition or redemption or repayment has been consummated and the second shall assume that such transaction has been abandoned. For the avoidance of doubt, with respect to any provision of this Agreement (other than particular transaction, each such calculation set forth on the provisions of Section 6.02(a) or Section 7.08) that requires compliance or applicable Pro Forma Compliance with the Financial Covenant, such compliance or Certificate must demonstrate Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with in order for such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative transaction to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savingspermitted.”
Appears in 1 contract
Samples: Credit Agreement (Ducommun Inc /De/)
Pro Forma Calculations. Notwithstanding anything to the contrary herein (subject to Section 1.02(j))contained herein, the First Lien Net Leverage Ratio, all calculations of the Total Net Leverage Ratio and the Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets or component definition thereof shall be calculated (including for purposes of Sections 2.14 and 2.15) made on a Pro Forma Basis with respect to each all Specified Transaction Transactions occurring during the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four-four quarter period but not later than the date of such calculation; provided that provided, that, notwithstanding the foregoing, when calculating the First Lien Net Total Leverage Ratio and the Fixed Charge Coverage Ratio or component definition thereof for purposes of determining whether any Specified Transaction is permitted under this Agreement, the numerator of such ratio shall be calculated as of the date of such Specified Transaction (iafter giving effect to all transactions occurring on such date and any related pro forma calculations shall be made giving effect to any adjustments on a Pro Forma Basis to be made in good faith by a responsible financial or accounting officer of the Borrower and reasonably satisfactory to the Agent, subject to the final sentence of the definition of “Pro Forma Basis”); provided, further, that when calculating the Total Leverage Ratio and the Fixed Charge Coverage Ratio or component definition thereof for purposes of determining (x) determining compliance with Section 9.13 and/or (y) the applicable percentage of Consolidated Excess Cash Flow for purposes of Section 2.05(b5.02(a)(i), (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenant, permissibility of any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four quarter period shall not be given Pro Forma Effectpro forma effect. For purposes of When determining pro forma compliance with Section 9.13 for any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenant, (x) in the case of purpose hereunder during any such compliance required after delivery of financial statements for the fiscal quarter period ending on or about June 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01, or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) abovefirst testing date under Section 9.13, such Pro Forma Compliance the required Total Leverage Ratio and Fixed Charge Coverage Ratio or component definition thereof shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted applicable ratio for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the first testing date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savingsthereunder.”
Appears in 1 contract
Pro Forma Calculations. Notwithstanding anything to the contrary herein (subject to Section 1.02(j))contained herein, all calculations of the First Lien Net Leverage Ratio, the Total Net Consolidated Leverage Ratio and the Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 determining the Applicable Rate) and 2.15) the Consolidated Fixed Charge Coverage Ratio shall be made on a Pro Forma Basis with respect to each all Specified Transaction Transactions occurring during the applicable four quarter period Measurement Period to which such calculation relates, and/or subsequent to the end of such four-quarter period Measurement Period but not later than the date of such calculation; provided that provided, that, notwithstanding the foregoing, when calculating the First Lien Net Consolidated Leverage Ratio and/or the Consolidated Fixed Charge Coverage Ratio for purposes of determining (i) determining the applicable percentage of Excess Cash Flow for purposes of compliance with Section 2.05(b)7.11, and/or (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenant, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four quarter period Measurement Period shall not be given Pro Forma Effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenantany financial covenant set forth in Section 7.11, (x) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June September 30, 20142015, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Consolidated Leverage Ratio and/or minimum Consolidated Fixed Charge Coverage Ratio, as applicable, permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.016.01(a) or (b), or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Consolidated Leverage Ratio and/or minimum Consolidated Fixed Charge Coverage Ratio, as applicable, permitted for the fiscal quarter ending June September 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savings2015.”
Appears in 1 contract
Samples: Credit Agreement (Amedisys Inc)
Pro Forma Calculations. Notwithstanding anything to the contrary herein (subject to Section 1.02(j)the Limited Condition Transaction Provisions), the Consolidated First Lien Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio, the Consolidated Total Net Leverage Ratio and the Fixed Charge Consolidated Interest Coverage Ratio Ratio, the EBITDA Grower Amount, Consolidated EBITDA, Consolidated Net Income and Consolidated Net Tangible Total Assets shall be calculated (including for purposes of Sections 2.14 and 2.15) on a Pro Forma Basis with respect to each Specified Transaction occurring during the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four-quarter period but not later than (including, in each case, for purposes of Sections 2.14 and 2.15) on a Pro Forma Basis with respect to each Specified Transaction occurring during the date applicable four quarter period to which such calculation relates, and/or subsequent to the end of such calculationfour-quarter period (including, with respect to any proposed Investment or acquisition pursuant to Rule 2.7 of The City Code on Takeovers and Mergers (or a similar arrangement) for which committed financing is obtained or is sought to be obtained, the relevant determination or calculation may be made with respect to an event occurring or intended to occur subsequent to such four-quarter period); provided that notwithstanding the foregoing, when calculating the Consolidated First Lien Net Leverage Ratio for purposes of (i) determining the applicable percentage of Excess Cash Flow for purposes of Section 2.05(b), (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenant, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four quarter period shall not be given Pro Forma Effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenant, (x) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01, or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savings.”
Appears in 1 contract
Pro Forma Calculations. (a) Notwithstanding anything to the contrary herein (subject to Section 1.02(j))herein, for purposes of determining compliance with any test contained in this Agreement, the Consolidated Total Net Leverage Ratio, the Consolidated First Lien Net Leverage Ratio, the Total Consolidated Senior Secured Net Leverage Ratio Ratio, Interest Coverage Ratio, Consolidated EBITDA and the Fixed Charge Coverage Ratio and Consolidated Net Tangible Total Assets shall be calculated (including for purposes of Sections 2.14 and 2.15) on a Pro Forma Basis with respect pro forma basis to each give effect to all Specified Transaction occurring Transactions that have been made during the applicable four quarter period to which such calculation relates, and/or of measurement or subsequent to such period and prior to or simultaneously with the end of such four-quarter period but not later than event for which the date of such calculationcalculation is made in the manner prescribed by this Section 1.09; provided that notwithstanding anything to the foregoingcontrary in Section 1.09(b), (c) or (d), when calculating the Consolidated First Lien Net Leverage Ratio for purposes of (i) determining the applicable percentage definition of Excess Cash Flow for purposes of Section 2.05(b), “Applicable Rate” and (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with any covenant pursuant to Section 7.11, the Financial Covenant, any Specified Transaction and any related adjustment contemplated events described in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) this Section 1.09 that occurred subsequent to the end of the applicable four quarter period Test Period shall not be given Pro Forma Effectpro forma effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with In addition, whenever a financial ratio or test is to be calculated on a pro forma basis, the Financial Covenant, (x) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum “Test Period” for purposes of calculating such financial ratio or test shall be deemed to be a reference to, and shall be based on, the most recently ended Test Period for which internal financial statements of the Borrower are available (as determined in good faith by the Borrower); provided that the provisions of this sentence shall not apply for purposes of calculating the Consolidated First Lien Net Leverage Ratio permitted or the Consolidated Total Net Leverage Ratio for purposes of the definition of “Applicable Rate” and determining actual compliance with Section 7.11 (other than for the fiscal quarter most recently then ended for purpose of determining pro forma compliance with Section 7.11), as applicable, each of which shall be based on the financial statements have been delivered (or were required pursuant to have been deliveredSection 6.01(a) in accordance with Section 6.01, or (yb), as applicable, for the relevant Test Period.
(b) in For purposes of calculating any financial ratio or test (including the case of any such compliance required prior to Consolidated Total Net Leverage Ratio, the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum Consolidated First Lien Net Leverage Ratio permitted for Ratio, the fiscal quarter ending June 30Consolidated Senior Secured Net Leverage Ratio, 2014. With respect Interest Coverage Ratio, Consolidated EBITDA and Total Assets), Specified Transactions (with any incurrence or repayment of any Indebtedness in connection therewith to any provision of this Agreement (other than the provisions of be subject to Section 6.02(a) or Section 7.081.09(d)) that requires compliance have been made (i) during the applicable Test Period and (ii) if applicable as described in Section 1.09(a), subsequent to such Test Period and prior to or Pro Forma Compliance simultaneously with the Financial Covenant, event for which the calculation of any such compliance ratio or Pro Forma Compliance shall be required regardless of whether the Lux Borrower test is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness made shall be calculated as if on a pro forma basis assuming that all such Specified Transactions (and any increase or decrease in Consolidated EBITDA and the rate in effect component financial definitions used therein attributable to any Specified Transaction) had occurred on the date for which a first day (or, in case of the determination under this definition is made had been of Total Assets, the last day) of the applicable rate for Test Period. If since the entire period beginning of any applicable Test Period any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Borrower or any of its Restricted Subsidiaries since the beginning of such Test Period shall have made any Specified Transaction that would have required adjustment pursuant to this Section 1.09, then such financial ratio or test (taking into account any Swap Contracts applicable and Consolidated EBITDA and Total Assets) shall be calculated to such Indebtedness if such Swap Contracts has a remaining term give pro forma effect thereto in excess of 12 months);accordance with this Section 1.09.
(2c) interest on Whenever pro forma effect is to be given to a Capitalized Lease Obligation Specified Transaction, the pro forma calculations shall be deemed to accrue at an interest rate reasonably determined made in good faith by a responsible financial or accounting officer of the Borrower Representative and include, for the avoidance of doubt, the amount of “run-rate” cost savings, operating expense reductions and synergies projected by the Borrower in good faith to be the rate realized as a result of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
specified actions taken or expected to be taken (3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed calculated on a pro forma basis as though such cost savings, operating expense reductions and synergies had been realized on the first day of such period and as if such cost savings, operating expense reductions and synergies were realized during the entirety of such period) and “run-rate” means the full recurring benefit for a period that is associated with any action taken, committed to be taken or expected to be taken (including any savings expected to result from the elimination of a public target’s compliance costs with public company requirements) net of the amount of actual benefits realized during such period from such actions, and any such adjustments shall be computed based upon included in the average daily balance initial pro forma calculations of such Indebtedness financial ratios or tests and during any subsequent Test Period in which the applicable periodeffects thereof are expected to be realized relating to such Specified Transaction; and
provided that (5i) such amounts are (A) reasonably supportable and quantifiable in the good faith judgment of the Borrower, (B) reasonably anticipated to be realized not later than 18 months after the date of such Specified Transaction, and (C) no amounts shall be added pursuant to this Section 1.09(c) to the extent not already covered aboveduplicative of any amounts that are otherwise added back in computing Consolidated EBITDA, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any whether through a pro forma calculation may includeadjustment or otherwise, without limitationwith respect to such period; provided that any increase to Consolidated EBITDA as a result of cost savings, (1operating expense reductions and synergies pursuant to this Section 1.09(c) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) shall be subject to the extent such adjustments, without duplication, continue to be applicable to the Reference Period limitations set forth in clause (as defined in vii) of the definition of “Pro Forma BasisConsolidated EBITDA.”); provided
(d) In the event that the Borrower or any Restricted Subsidiary incurs (including by assumption or guarantees) or repays (including by redemption, repayment, retirement or extinguishment) any Indebtedness included in the calculations of any financial ratio or test, (i) during the applicable Test Period or (ii) subject to Section 1.09(a) subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such adjustments that consist of reductions in costs and other operating improvements ratio is made, then such financial ratio or synergies test shall be calculated giving pro forma effect to such incurrence or repayment of Indebtedness, to the extent required, as if the same had occurred on the last day of the applicable Test Period.
(e) At any time prior to March 31, 2017, any provision requiring the pro forma compliance with Section 7.11 shall be made assuming that compliance with the Consolidated First Lien Net Leverage Ratio set forth in accordance withSection 7.11 for the Test Period ending on March 31, and satisfy 2017, is required with respect to the requirements specified in, the definition of “Pro Forma Cost Savingsmost recent Test Period prior to such time.”
Appears in 1 contract
Pro Forma Calculations. Notwithstanding anything to the contrary herein (subject to Section 1.02(j))contained herein, all calculations of the First Lien Net Leverage Ratio, the Consolidated Total Net Leverage Ratio and the Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 compliance with Section 7.7 and 2.15determining the Applicable Margin) and the Consolidated Fixed Charge Coverage Ratio, in each case, shall be made on a Pro Forma Basis with respect to each all Specified Transaction Transactions occurring during the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four-quarter period but not later than the date of such calculation; provided that provided, that, notwithstanding the foregoing, when calculating the First Lien Consolidated Total Net Leverage Ratio or the Consolidated Fixed Charge Coverage Ratio, in each case, for purposes of determining (i) determining the applicable percentage of Excess Cash Flow for purposes of compliance with Section 2.05(b)7.7, and/or (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial CovenantMargin, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four quarter period shall not be given Pro Forma Effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenantany financial covenant set forth in Section 7.7, (xA) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June September 30, 20142024, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Consolidated Total Net Leverage Ratio and/or the minimum Consolidated Fixed Charge Coverage Ratio, as applicable, permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01LTM Period, or (yB) in the case of any such compliance required prior to the delivery referred to in clause (xA) above, such Pro Forma Compliance shall be determined by reference to (x) the most recent financial statements of the Borrower that are available (to the extent reasonably acceptable to the Administrative Agent, it being understood and agreed that the financial statements of the Borrower filed with or furnished to the Securities and Exchange Commission and publicly available are deemed to be reasonably acceptable by the Administrative Agent) or the most recent financial statements delivered pursuant to Section 6.1(a), as applicable, and (y) the maximum First Lien Consolidated Total Net Leverage Ratio and/or the minimum Consolidated Fixed Charge Coverage Ratio, as applicable, permitted for the fiscal quarter ending June September 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savings2024.”
Appears in 1 contract
Pro Forma Calculations. Notwithstanding anything to the contrary herein herein, financial ratios and tests, including the(a) Total Leverage Ratio, the Secured Leverage Ratio, the Consolidated First Lien Net Leverage Ratio and the Consolidated Fixed Charge Coverage Ratio shall be calculated in the manner prescribed by this Section 1.09; provided that notwithstanding anything to the contrary in clauses (subject to Section 1.02(j)b), (c) or (d) of this Section 1.09, when calculating the Consolidated First Lien Net Leverage Ratio, the Total Net Leverage Ratio and the Consolidated Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 and 2.15) on a Pro Forma Basis with respect to Ratio, each Specified Transaction occurring during the applicable four quarter period to which such calculation relatesas applicable, and/or subsequent to the end of such four-quarter period but not later than the date of such calculation; provided that notwithstanding the foregoing, when calculating the First Lien Net Leverage Ratio for purposes of (i) determining the applicable percentage definition of “Applicable ECF Percentage of Excess Cash Flow for purposes of Section 2.05(b), Flow” and (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basiswhether the Payment Condition has been satisfied) with Section 7.11, the Financial Covenant, any Specified Transaction and any related adjustment contemplated events described in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) this Section 1.09 that occurred subsequent to the end of the applicable four quarter period Test Period shall not be given Pro Forma Effectpro forma effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with In addition, whenever a financial ratio or test is to be calculated on a pro forma basis, the Financial Covenant, (x) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum “Test Period” for purposes of calculating such financial ratio or test shall be deemed to be a reference to, and shall be based on, the most recently ended Test Period for which internal financial statements of the Borrower are available (as determined in good faith by the Borrower); provided that, the provisions of this sentence shall not apply for purposes of calculating the Consolidated First Lien Net Leverage Ratio permitted for Ratio, the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01, or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Total Leverage Ratio permitted and the Consolidated Fixed Charge Coverage Ratio for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist Applicable ECF Percentage of reductions in costs Excess Cash Flow” and other operating improvements or synergies shall be calculated in accordance with, determining actual compliance with Section 7.11 (and satisfy not for the requirements specified in, purpose of determining whether the definition of “Pro Forma Cost Savings.”Payment Condition - 73-
Appears in 1 contract
Samples: Abl Credit Agreement (Prestige Consumer Healthcare Inc.)
Pro Forma Calculations. Notwithstanding anything to the contrary herein (subject to Section 1.02(j))contained herein, all calculations of the First Lien Net Leverage Ratio, the Consolidated Total Net Leverage Ratio and the Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 determining the Applicable Rate or compliance with any financial covenant set forth in Section 7.11) and 2.15) the Consolidated Fixed Charge Coverage Ratio, in each case, shall be made on a Pro Forma Basis with respect to each all Specified Transaction Transactions occurring during the applicable four quarter period Measurement Period to which such calculation relates, and/or subsequent to the end of such four-quarter period Measurement Period but not later than the date of such calculation; provided that provided, that, notwithstanding the foregoing, when calculating the First Lien Net Consolidated Total Leverage Ratio or the Consolidated Fixed Charge Coverage Ratio, in each case, for purposes of determining (i) determining the applicable percentage of Excess Cash Flow for purposes of compliance with Section 2.05(b)7.11, and/or (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenant, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four quarter period Measurement Period shall not be given Pro Forma Effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenantany financial covenant set forth in Section 7.11, (xA) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30, 20142021, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Consolidated Total Leverage Ratio and/or the minimum Consolidated Fixed Charge Coverage Ratio, as applicable, permitted for the fiscal quarter Fiscal Quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01, 6.01(a) or (yb), as applicable, and (B) in the case of any such compliance required prior to the delivery referred to in clause (xA) above, such Pro Forma Compliance shall be determined by reference to (1) the Audited Financial Statements, and (2) the maximum First Lien Net Consolidated Total Leverage Ratio and/or the minimum Consolidated Fixed Charge Coverage Ratio, as applicable, permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savings2021.”
Appears in 1 contract
Pro Forma Calculations. Notwithstanding anything to the contrary herein (subject to Section 1.02(j))contained herein, all calculations of the First Lien Net Consolidated Leverage Ratio, the Total Consolidated Net Leverage Ratio and the Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 determining the Applicable Rate), the Consolidated Senior Secured Leverage Ratio and 2.15) the Consolidated Interest Coverage Ratio shall be made on a Pro Forma Basis with respect to each all Specified Transaction Transactions occurring during the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four-four quarter period but not later than the date of such calculation; provided that provided, that, notwithstanding the foregoing, when calculating the First Lien Consolidated Net Leverage Ratio and/or the Consolidated Interest Coverage Ratio for purposes of determining (iy) determining the applicable percentage of Excess Cash Flow for purposes of compliance with Section 2.05(b), 8.11 and/or (iiz) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenant, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four quarter period shall not be given Pro Forma Effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenantany financial covenant set forth in Section 8.11 (or satisfaction of a required ratio by reference to any financial covenant set forth in Section 8.11), (x) in the case of any such compliance required (or satisfaction) determined after delivery of financial statements for the fiscal quarter ending on or about June September 30, 20142019, such Pro Forma Compliance (or satisfaction) shall be determined by reference to the maximum First Lien Consolidated Net Leverage Ratio and/or minimum Consolidated Interest Coverage Ratio, as applicable, permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.017.01(a) or (b), or (y) in the case of any such compliance required (or satisfaction) determined prior to the delivery referred to in clause (x) above, such Pro Forma Compliance (or satisfaction) shall be determined by reference to the maximum First Lien Consolidated Net Leverage Ratio and/or minimum Consolidated Interest Coverage Ratio, as applicable, permitted for the fiscal quarter ending June September 30, 20142019. With respect Notwithstanding anything to the contrary herein, for purposes of calculating the Consolidated Leverage Ratio, the Consolidated Net Leverage Ratio, the Consolidated Senior Secured Leverage Ratio and the Consolidated Interest Coverage Ratio at any provision time prior to the first delivery of this Agreement (other than the provisions of financial statements pursuant to Section 6.02(a7.01(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant(b), such compliance or Pro Forma Compliance calculation shall be required regardless determined based on the pro forma consolidated financial statements of whether the Lux Borrower is otherwise required Parent and its Subsidiaries delivered to comply the Administrative Agent prior to the First Amendment Effective Date (and posted on SyndTrak for the Lenders) and thereafter, based on the most recent financial statements delivered pursuant to Section 7.01(a) or (b). In connection with such covenant under any calculation of the terms of Section 7.08 at such time. For Consolidated Net Leverage Ratio for purposes of making determining the permissibility of the incurrence of any computation referred to above:
Indebtedness, (1i) if any Indebtedness bears a floating rate the proceeds of interest and is being given pro forma effect, the interest on such Indebtedness shall not be calculated counted as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period unrestricted cash and Cash Equivalents, and (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2ii) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon being repaid with the average daily balance proceeds of such Indebtedness during substantially concurrently with the applicable period; and
(5) to the extent incurrence thereof shall not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savingsconsidered outstanding.”
Appears in 1 contract
Pro Forma Calculations. Notwithstanding anything to the contrary herein contained herein, all calculations of Consolidated EBITDA, Consolidated Total Assets, the Consolidated Total Net Adjusted Leverage Ratio (subject to Section 1.02(j)including for purposes of determining the Applicable Rate), the Consolidated First Lien Net Leverage Ratio, the Total Net Leverage Ratio and the Fixed Charge Consolidated Interest Coverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 and 2.15) made on a Pro Forma Basis with respect to each all Specified Transaction Transactions occurring during the applicable four quarter period Measurement Period to which such calculation relates, and/or subsequent to the end of such four-quarter period Measurement Period but not later than the date of such calculation; provided that provided, that, notwithstanding the foregoing, when calculating the First Lien Consolidated Total Net Adjusted Leverage Ratio for purposes of determining (i) determining the applicable percentage of Excess Cash Flow for purposes of compliance with Section 2.05(b7.11(a), and/or (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenantin any such case, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four quarter period Measurement Period shall not be given Pro Forma Effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenantany financial covenant set forth in Section 7.11, (x) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30October 1, 20142022, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Consolidated Total Net Adjusted Leverage Ratio and/or the minimum Consolidated Interest Coverage Ratio permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.016.01(a) or Section 6.01(b), or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Consolidated Total Net Adjusted Leverage Ratio and/or the minimum Consolidated Interest Coverage Ratio permitted for the fiscal quarter ending June 30October 1, 20142022. With respect Notwithstanding anything to the contrary contained herein, in connection with any provision of this Agreement (other than Qualified Acquisition Pro Forma Calculation, the provisions of maximum Consolidated Total Net Adjusted Leverage Ratio that was permitted pursuant to Section 6.02(a7.11(a) for the most recent fiscal quarter ended for which the Borrower was required to deliver financial statements pursuant to Section 6.01(a) or Section 7.086.01(b) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined be increased by a responsible financial or accounting officer of the Borrower Representative 0.25 to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance 1.00 solely for purposes of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Qualified Acquisition Pro Forma Cost Savings and Calculation (3) all adjustments described on Schedule 1.01(a) but, in no event shall such maximum Consolidated Total Net Adjusted Leverage Ratio exceed 5.00 to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”1.00); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savings.”
Appears in 1 contract
Samples: Credit Agreement (Ducommun Inc /De/)
Pro Forma Calculations. Notwithstanding anything to the contrary herein (subject to Section 1.02(j))contained herein, all calculations of the First Lien Net Leverage Ratio, the Total Consolidated Net Leverage Ratio and the Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 compliance with Section 7.11 and 2.15determining the Applicable Rate) and the Consolidated Interest Coverage Ratio, in each case, shall be made on a Pro Forma Basis with respect to each all Specified Transaction Transactions occurring during the applicable four quarter period Measurement Period to which such calculation relates, and/or subsequent to the end of such four-quarter period Measurement Period but not later than the date of such calculation; provided that provided, that, notwithstanding the foregoing, when calculating the First Lien Consolidated Net Leverage Ratio or the Consolidated Interest Coverage Ratio, in each case, for purposes of determining (i) determining the applicable percentage of Excess Cash Flow for purposes of compliance with Section 2.05(b)7.11, and/or (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenant, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four quarter period Measurement Period shall not be given Pro Forma Effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenantany financial covenant set forth in Section 7.11, (xA) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30, 20142018, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Consolidated Net Leverage Ratio and/or the minimum Consolidated Interest Coverage Ratio, as applicable, permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.016.01(a) or Section 6.01(b), as applicable, or (yB) in the case of any such compliance required prior to the delivery referred to in clause (xA) above, such Pro Forma Compliance shall be determined by reference to (x) the Interim Financial Statements, and (y) the maximum First Lien Consolidated Net Leverage Ratio and/or the minimum Consolidated Interest Coverage Ratio, as applicable, permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savings2018.”
Appears in 1 contract
Pro Forma Calculations. Notwithstanding anything to the contrary herein (subject to Section 1.02(j))contained herein, all calculations of the First Lien Net Leverage Ratio, the Consolidated Total Net Leverage Ratio and the Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 determining the Applicable Rate), the Consolidated Total Net Leverage Ratio (including for purposes of compliance with Section 7.11), and 2.15) the Consolidated Fixed Charge Coverage Ratio, in each case, shall be made on a Pro Forma Basis with respect to each all Specified Transaction Transactions occurring during the applicable four quarter period Measurement Period to which such calculation relates, and/or subsequent to the end of such four-quarter period Measurement Period but not later than the date of such calculation; provided that provided, that, notwithstanding the foregoing, when calculating the First Lien Consolidated Total Leverage Ratio, the Consolidated Total Net Leverage Ratio Ratio, or the Consolidated Fixed Charge Coverage Ratio, in each case, for purposes of determining (i) determining the applicable percentage of Excess Cash Flow for purposes of compliance with Section 2.05(b)7.11, and/or (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenant, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four quarter period Measurement Period shall not be given Pro Forma Effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenantany financial covenant set forth in Section 7.11, (xA) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30October 31, 20142018, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Consolidated Total Net Leverage Ratio and/or the minimum Consolidated Fixed Charge Coverage Ratio, as applicable, permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.016.01(a) or (b), as applicable, or (yB) in the case of any such compliance required prior to the delivery referred to in clause (xA) above, such Pro Forma Compliance shall be determined by reference to (x) the Pro Forma Financial Statements, and (y) the maximum First Lien Consolidated Total Net Leverage Ratio and/or the minimum Consolidated Fixed Charge Coverage Ratio, as applicable, permitted for the fiscal quarter ending June 30October 31, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savings2018.”
Appears in 1 contract
Pro Forma Calculations. Notwithstanding anything to the contrary herein (subject to Section 1.02(j))contained herein, all calculations of the First Lien Net Leverage Ratio, the Total Net Consolidated Leverage Ratio and the Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 determining the Applicable Rate), the Consolidated Interest Coverage Ratio and 2.15) the Consolidated Fixed Charge Coverage Ratio shall be made on a Pro Forma Basis with respect to each all Specified Transaction Transactions occurring during the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four-four quarter period but not later than the date of such calculation; provided that provided, that, notwithstanding the foregoing, when calculating the First Lien Net Consolidated Leverage Ratio, the Consolidated Interest Coverage Ratio and/or the Consolidated Fixed Charge Coverage Ratio for purposes of determining (ix) determining the applicable percentage of Excess Cash Flow for purposes of compliance with Section 2.05(b), 8.11 and/or (iiy) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenant, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four quarter period shall not be given Pro Forma Effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenant, (x) any financial covenant set forth in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30, 2014Section 8.11, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Consolidated Leverage Ratio and/or minimum Consolidated Interest Coverage Ratio and/or minimum Consolidated Fixed Charge Coverage Ratio, as applicable, permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01, 7.01(a)(i) or (yb).
(q) in The text “.” at the case end of any such compliance required prior Section 2.05(b)(i)(C) of the Existing Credit Agreement is hereby amended to “;” and a new Section 2.05(b)(i)(D) is hereby added to the delivery referred Existing Credit Agreement to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to aboveread as follows:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savings.”
Appears in 1 contract
Pro Forma Calculations. (a) Notwithstanding anything to the contrary herein (subject to Section 1.02(j))herein, financial ratios and tests, including the First Lien Consolidated Total Net Leverage Ratio, the Consolidated Total Secured Net Leverage Ratio and the Fixed Charge Coverage Consolidated First Lien Net Leverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 and 2.15) on a Pro Forma Basis with respect to each Specified Transaction occurring during in the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four-quarter period but not later than the date of such calculationmanner prescribed by this Section 1.09; provided that notwithstanding anything to the foregoingcontrary in Section 1.09(b), (c) or (d), when calculating the Consolidated First Lien Net Leverage Ratio for purposes of (i) the definition of “Applicable Rate,” (ii) determining actual quarterly compliance with the applicable percentage of Excess Cash Flow financial covenant pursuant to Section 7.11 (and not compliance on a Pro Forma Basis for purposes of Section 2.05(btesting the permissibility of a transaction hereunder), (ii) the Applicable Rate, (iii) the definition of “Applicable Commitment Fee ECF Percentage” and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenant, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions availability of the definition “free and clear” basket for the incurrence of Consolidated EBITDA) Incremental Loans and/or Incremental Equivalent Debt under Section 2.14(d)(iv)(A), the events described in this Section 1.09 that occurred subsequent to the end of the applicable four quarter period Test Period shall not be given Pro Forma Effectpro forma effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with In addition, whenever a financial ratio or test is to be calculated on a pro forma basis, the Financial Covenant, (x) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum “Test Period” for purposes of calculating such financial ratio or test shall be deemed to be a reference to, and shall be based on, the most recently ended Test Period for which internal financial statements of Holdings are available (as determined in good faith by the Borrower); provided that, the provisions of this sentence shall not apply for purposes of calculating the Consolidated First Lien Net Leverage Ratio permitted for purposes of (1) the definition of “Applicable Rate,” (2) the definition of “Applicable ECF Percentage”, (3) determining the availability of the “free and clear” basket for the fiscal quarter most recently then ended incurrence of Incremental Loans and/or Incremental Equivalent Debt under Section 2.14(d)(iv)(A) and (4) determining actual quarterly compliance with Section 7.11 (and not compliance on a Pro Forma Basis for purposes of testing the permissibility of a transaction hereunder), as applicable, each of which shall be based on the financial statements delivered pursuant to Section 6.01(a) or (b), as applicable, for the relevant Test Period.
(b) For purposes of calculating any financial ratio or test, Specified Transactions (with any incurrence or repayment of any Indebtedness in connection therewith to be subject to Section 1.09(d)) that have been made (i) during the applicable Test Period and (ii) if applicable as described in Section 1.09(a), subsequent to such Test Period and prior to or simultaneously with the event for which the calculation of any such ratio or test is made shall be calculated on a pro forma basis assuming that all such Specified Transactions (and any increase or decrease in Consolidated EBITDA and the component financial statements definitions used therein attributable to any Specified Transaction) had occurred on the first day (or, in case of the determination of Total Assets, the last day) of the applicable Test Period. If since the beginning of any applicable Test Period any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Borrower or any of its Restricted Subsidiaries since the beginning of such Test Period shall have been delivered made any Specified Transaction that would have required adjustment pursuant to this Section 1.09, then such financial ratio or test (or were required Total Assets) shall be calculated to have been delivered) give pro forma effect thereto in accordance with this Section 6.011.09.
(c) Whenever pro forma effect is to be given to a Specified Transaction, or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance pro forma calculations shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate made in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined good faith by a responsible financial or accounting officer of the Borrower Representative and include, for the avoidance of doubt, the amount of “run‑rate” cost savings, operating expense reductions and synergies projected by the Borrower in good faith to be the rate realized as a result of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
specified actions taken or expected to be taken (3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed calculated on a pro forma basis as though such cost savings, operating expense reductions and synergies had been realized on the first day of such period and as if such cost savings, operating expense reductions and synergies were realized during the entirety of such period) and “run‑rate” means the full recurring benefit for a period that is associated with any action taken, committed to be taken or expected to be taken (including any savings expected to result from the elimination of a public target’s compliance costs with public company requirements) net of the amount of actual benefits realized during such period from such actions, and any such adjustments shall be computed based upon included in the average daily balance initial pro forma calculations of such Indebtedness financial ratios or tests and during any subsequent Test Period in which the applicable periodeffects AMERICAS 94626185 thereof are expected to be realized relating to such Specified Transaction; and
provided that such amounts are (5A) reasonably supportable and quantifiable in the good faith judgment of the Borrower, (B) reasonably anticipated to be realized not later than twenty‑four (24) months after the date of such Specified Transaction, and (C) no amounts shall be added pursuant to this Section 1.09(c) to the extent not already covered aboveduplicative of any amounts that are otherwise added back in computing Consolidated EBITDA, whether through a pro forma adjustment or otherwise, with respect to such period.
(d) In the event that the Borrower or any Restricted Subsidiary incurs (including by assumption or guarantees) or repays (including by redemption, repayment, retirement or extinguishment) any Indebtedness included in the calculations of any financial ratio or test (in each case, other than Indebtedness incurred or repaid under any revolving credit facility), (i) during the applicable Test Period or (ii) subject to Section 1.09(a) subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such calculation may include adjustments ratio is made, then such financial ratio or test shall be calculated in accordance with Regulation S-X under the Securities Act. Any giving pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) such incurrence or repayment of Indebtedness, to the extent such adjustmentsrequired, without duplicationas if the same had occurred on the last day of the applicable Test Period.
(e) At any time prior to June 30, continue to 2014, any provision requiring the compliance with Section 7.11 on a Pro Forma Basis shall be applicable made assuming that compliance with the Consolidated First Lien Net Leverage Ratio set forth in Section 7.11 for the Test Period ending on June 30, 2014 is required with respect to the Reference most recent Test Period (as defined in the definition of “Pro Forma Basis”); provided that any prior to such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savingstime.”
Appears in 1 contract
Samples: First Lien Credit Agreement (Jason Industries, Inc.)
Pro Forma Calculations. (a) Notwithstanding anything to the contrary herein (subject to Section 1.02(j))herein, for purposes of this Agreement and the other Loan Documents, the First Lien Net Leverage Ratio, the Secured Net Leverage Ratio, the Total Net Leverage Ratio and the Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets EBITDA shall be calculated (including including, but not limited to, for purposes of Sections 2.14 and 2.15Section 2.14) on a Pro Forma Basis with respect to each Specified Transaction occurring during the applicable four quarter period to which such calculation relates, and/or or subsequent to the end of such four-quarter period but not later than the date of such calculation; provided that notwithstanding the foregoing, when calculating the First Lien Secured Net Leverage Ratio for purposes of (i) determining the applicable percentage of Excess Cash Flow for purposes of set forth in Section 2.05(b)2.05, (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenant, any Specified Transaction and any related adjustment contemplated events described in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four quarter period shall not be given Pro Forma Effect. For purposes of determining compliance .
(b) Notwithstanding anything to the contrary herein, in connection with any provision of this Agreement which requires Pro Forma Compliance action required to be taken in connection with a Limited Condition Transaction, for purposes of:
(i) calculating the Financial Covenant, (x) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio, the Secured Net Leverage Ratio permitted or the Total Net Leverage Ratio and other financial calculations (including, but not limited to, for purposes of Section 2.14);
(ii) determining compliance with representations, warranties, Defaults or Events of Default; or
(iii) testing availability under covenant baskets set forth in this Agreement (including covenant baskets measured as a percentage of Consolidated EBITDA); in each case, at the fiscal quarter most recently then ended option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), the date of determination shall be deemed to be the date the definitive agreement for which financial statements such Limited Condition Transaction is entered into (the “LCT Test Date”), and if, after giving Pro Forma Effect to the Limited Condition Transaction and the other transactions required to be entered into in connection therewith (including any incurrence or repayment of Indebtedness and the use of proceeds thereof) as of the LCT Test Date, the Borrower would have been delivered (permitted to take such action on the relevant LCT Test Date in compliance with such ratio, test or were required basket, such ratio, test or basket shall be deemed to have been deliveredcomplied with; provided that availability under any ratio and the determination of whether the relevant condition is satisfied calculated on the applicable LCT Test Date may in any event be recalculated, at the option of the Borrower, on the closing date of the Limited Condition Transaction. For the avoidance of doubt, if the Borrower has made an LCT Election and any of the ratios, tests or baskets for which compliance was determined or tested as of the LCT Test Date are exceeded as a result of fluctuations in any such ratio, test or basket, including due to fluctuations in Consolidated EBITDA of the Borrower or the Person subject to such Limited Condition Transaction, at or prior to the consummation of the relevant transaction or action, such baskets, tests or ratios will not be deemed to have been exceeded as a result of such fluctuations. If the Borrower has made an LCT Election for any Limited Condition Transaction, then in connection with any calculation of any ratio, test or basket availability with respect to any transaction required to be entered into in connection with such Limited Condition Transaction following the relevant LCT Test Date and prior to the earlier of the date on which such Limited Condition Transaction is consummated or the date that the definitive agreement for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, for purposes of determining whether any such required transaction is permitted under this Agreement, any such ratio, test or basket shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and such other required transaction (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated. If the Borrower has made an LCT Election for any Limited Condition Transaction, then in accordance connection with Section 6.01any calculation of any other ratio, test or basket availability with respect to the incurrence of Indebtedness or Liens, the making of Restricted Payments, the making of any permitted Investment, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of the Borrower, the prepayment, redemption, purchase, defeasance or other satisfaction of Indebtedness, or the designation of an Unrestricted Subsidiary, in each case, not required to be entered into in connection with the applicable Limited Condition Transaction (a “Subsequent Transaction”) following the relevant LCT Test Date and prior to the earlier of (x) the date on which such Limited Condition Transaction is consummated or (y) in the case date that the definitive agreement for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction (or the date on which the Borrower demonstrates to the Administrative Agent that it has elected not to pursue such Limited Condition Transaction), for purposes of determining whether such Subsequent Transaction is permitted under this Agreement, any such compliance required prior to the delivery referred to in clause (x) aboveratio, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) test or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance basket shall be required regardless of whether the Lux Borrower is otherwise to be satisfied on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions required to comply with such covenant under be entered into in connection therewith (including any incurrence of Indebtedness and the terms use of Section 7.08 at such time. For purposes of making any computation referred to above:proceeds thereof) have been consummated.
(1c) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer Responsible Officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest . Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency London interbank offered rate, or other rate, shall be deemed determined to have been based upon the rate actually chosen, or, or if none, then based upon such optional rate chosen as the Borrower Representative or Restricted Subsidiary may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savings.”
Appears in 1 contract
Pro Forma Calculations. Notwithstanding anything All calculations permitted or required to the contrary herein (subject to Section 1.02(j)), the First Lien Net Leverage Ratio, the Total Net Leverage Ratio and the Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 and 2.15) made on a Pro Forma Basis with respect by Holdings, the Borrower or any Subsidiary pursuant to each Specified Transaction occurring during the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four-quarter period but not later than the date of such calculation; provided that notwithstanding the foregoing, when calculating the First Lien Net Leverage Ratio for purposes of (i) determining the applicable percentage of Excess Cash Flow for purposes of Section 2.05(b), (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenant, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four quarter period shall not be given Pro Forma Effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenant, shall include only those adjustments that (xa) in the case of any such compliance would be permitted or required after delivery of financial statements for the fiscal quarter ending on or about June 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01, or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities ActAct of 1933, as amended, or (b) have been certified by a Financial Officer of the Borrower as having been prepared in good faith based upon reasonable assumptions, which assumptions are written in a reasonably detailed manner and are reasonably acceptable to the Administrative Agent and the Required Lenders. Any pro forma calculation may includeNotwithstanding anything to the contrary herein, without limitation, (1) adjustments calculated for purposes of determining compliance with any test or covenant contained in accordance this Agreement with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect respect to any Pro Forma Cost Savings period during which any Specified Transaction occurs, the Total Net Leverage Ratio, the Total Secured Leverage Ratio, the Interest Coverage Ratio and (3the ratio set forth in Section 2.22(c) all adjustments described shall be calculated with respect to such period and such Specified Transaction on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “a Pro Forma Basis”); provided that . For the avoidance of doubt, (i) in the case of any test other than compliance with the Financial Covenants and the Total Net Leverage Ratio used in determining the applicable Excess Cash Flow Percentage, such adjustments that consist of reductions in costs and other operating improvements or synergies test shall be calculated in accordance withon a Pro Forma Basis taking into account all Specified Transactions that have occurred from the beginning of the most recently completed Calculation Period through the date of such test, and satisfy (ii) in the requirements specified incase of the Financial Covenants and the Total Net Leverage Ratio used in determining the applicable Excess Cash Flow Percentage, the definition of “such test shall be calculated on a Pro Forma Cost SavingsBasis taking into account all Specified Transactions that have occurred during the applicable Calculation Period. Any reference to compliance on a Pro Forma Basis with the Financial Covenants as of any date prior to the last day of the initial Calculation Period with respect to which the Financial Covenants are applicable shall refer to the covenant levels applicable for the first period specified in Sections 6.10 and 6.11, as applicable.”
Appears in 1 contract
Samples: Term Loan Agreement (Sportsman's Warehouse Holdings, Inc.)
Pro Forma Calculations. Notwithstanding anything to the contrary herein (subject to Section 1.02(j))contained herein, all calculations of the First Lien Net Consolidated Leverage Ratio, the Total Consolidated Net Leverage Ratio and the Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 determining the Applicable Rate), the Consolidated Senior Secured Leverage Ratio and 2.15) the Consolidated Interest Coverage Ratio shall be made on a Pro Forma Basis with respect to each all Specified Transaction Transactions occurring during the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four-four quarter period but not later than the date of such calculation; provided that provided, that, notwithstanding the foregoing, when calculating the First Lien Consolidated Net Leverage Ratio and/or the Consolidated Interest Coverage Ratio for purposes of determining (iy) determining the applicable percentage of Excess Cash Flow for purposes of compliance with Section 2.05(b), 8.11 and/or (iiz) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenant, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four quarter period shall not be given Pro Forma Effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenantany financial covenant set forth in Section 8.11 (or satisfaction of a required ratio by reference to any financial covenant set forth in Section 8.11), (x) in the case of any such compliance required (or satisfaction) determined after delivery of financial statements for the fiscal quarter ending on or about June 30, 20142018, such Pro Forma Compliance (or satisfaction) shall be determined by reference to the maximum First Lien Consolidated Net Leverage Ratio and/or minimum Consolidated Interest Coverage Ratio, as applicable, permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.017.01(a) or (b), or (y) in the case of any such compliance required (or satisfaction) determined prior to the delivery referred to in clause (x) above, such Pro Forma Compliance (or satisfaction) shall be determined by reference to the maximum First Lien Consolidated Net Leverage Ratio and/or minimum Consolidated Interest Coverage Ratio, as applicable, permitted for the fiscal quarter ending June 30, 20142018. With respect Notwithstanding anything to the contrary herein, for purposes of calculating the Consolidated Leverage Ratio, the Consolidated Net Leverage Ratio, the Consolidated Senior Secured Leverage Ratio and the Consolidated Interest Coverage Ratio at any provision time prior to the first delivery of this Agreement (other than the provisions of financial statements pursuant to Section 6.02(a7.01(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant(b), such compliance or Pro Forma Compliance calculation shall be required regardless determined based on the pro forma consolidated financial statements of whether the Lux Borrower is otherwise required Parent and its Subsidiaries delivered to comply the Administrative Agent prior to the Closing Date (and posted on SyndTrak for the Lenders) and thereafter, based on the most recent financial statements delivered pursuant to Section 7.01(a) or (b). In connection with such covenant under any calculation of the terms of Section 7.08 at such time. For Consolidated Net Leverage Ratio for purposes of making determining the permissibility of the incurrence of any computation referred to above:
Indebtedness, (1i) if any Indebtedness bears a floating rate the proceeds of interest and is being given pro forma effect, the interest on such Indebtedness shall not be calculated counted as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period unrestricted cash and Cash Equivalents, and (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2ii) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon being repaid with the average daily balance proceeds of such Indebtedness during substantially concurrently with the applicable period; and
(5) to the extent incurrence thereof shall not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savingsconsidered outstanding.”
Appears in 1 contract
Pro Forma Calculations. (a) Notwithstanding anything to the contrary herein (subject to Section 1.02(j))herein, the First Lien Net Leverage Ratio, the Senior Secured Net Leverage Ratio, the Total Net Leverage Ratio and the Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets EBITDA shall be calculated (including for purposes of Sections 2.14 and 2.15) on a Pro Forma Basis with respect to each Specified Transaction occurring during the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four-quarter period but not later than the date of such calculation; provided that notwithstanding the foregoing, when calculating the First Lien Net Leverage Ratio for purposes of determining (ix) determining the applicable percentage of Excess Cash Flow for purposes of Section 2.05(b), (iiy) the Applicable Rate, (iii) the Applicable Commitment Fee Rate and (ivz) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial CovenantCovenant (whether or not then in effect), any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions of the definition of “Consolidated EBITDA”) that occurred subsequent to the end of the applicable four quarter period shall not be given Pro Forma Effect. For purposes The calculation of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenant, (x) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for Ratio, the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01Senior Secured Net Leverage Ratio, or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Total Net Leverage Ratio permitted and Consolidated EBITDA on a Pro Forma Basis for the fiscal quarter ending June 30, 2014. With respect purpose of determining if any action is permitted under an incurrence test hereunder shall be based on the financial statements that have been most recently delivered pursuant to any provision of this Agreement (other than the provisions of Section 6.02(a6.01(a) or Section 7.086.01(b) that requires compliance (or prior to such initial delivery thereunder, the most recent financial statements delivered pursuant to Section 4.01(l)).
(b) Whenever Pro Forma Compliance Effect is to be given to a Specified Transaction, the amount of “run-rate” cost savings, operating expense reductions, other operating improvements and acquisition synergies projected by the Borrowers in good faith to be realized (calculated on a Pro Forma Basis as though such items had been realized on the first day of such period and as if such items were realized during the entirety of such period) as a result of specified actions taken, committed to be taken or with respect to which substantial steps have been taken or are expected to be taken (in the Financial Covenantgood faith determination of the Borrowers), with “run-rate” meaning the full recurring benefit for a period that is associated with any action taken, committed to be taken or with respect to which substantial steps have been taken or are expected to be taken (including any savings expected to result from the elimination of a public target’s compliance costs with public company requirements) net of the amount of actual benefits realized during such period from such actions, such compliance or Pro Forma Compliance adjustments shall be required regardless of whether included in the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given initial pro forma effectcalculations of such financial ratios or tests and during any subsequent measurement period in which the effects thereof are expected to be realized relating to such Specified Transaction; provided that (A) such cost savings, operating expense reductions, other operating improvements and synergies are factually supportable in the interest on good faith judgment of the Borrowers and as determined in good faith by the Borrowers and are reasonably anticipated to be realized within 18 months after the consummation of any operational change or the acquisition or disposition which is expected to result in such Indebtedness cost savings, expense reductions, operating improvements or synergies, (B) no cost savings, operating expense reductions, operating improvements and synergies shall be calculated as if the rate in effect on the date for which a determination under added pursuant to this definition is made had been the applicable rate for the entire period clause (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5b) to the extent not already covered aboveduplicative of any expenses or charges otherwise added to Consolidated Net Income or Consolidated EBITDA, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any whether through a pro forma calculation may includeadjustment or otherwise, without limitationwith respect to such period, (1C) adjustments calculated projected amounts (that are not yet realized) may no longer be added in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) calculating Consolidated EBITDA to the extent occurring more than six full fiscal quarters after the specified action taken in order to realize such adjustmentsprojected cost savings, without duplicationoperating expense reductions, continue operating improvements and synergies and (D) amounts added to be applicable Consolidated EBITDA pursuant to this Section 1.09(b) shall not, when combined with amounts added to Consolidated EBITDA pursuant to clause (b)(vi) of the definition thereof (other than to the Reference Period (as defined extent in connection with the Transactions or the LDiscovery Transactions), in the definition aggregate exceed 25% of “Pro Forma Basis”); provided that Consolidated EBITDA (determined prior to giving effect to such amounts) in any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savingsfour consecutive fiscal quarter period.”
Appears in 1 contract
Samples: First Lien Credit Agreement (Pivotal Acquisition Corp)
Pro Forma Calculations. (a) Notwithstanding anything to the contrary herein (subject to Section 1.02(j))herein, for purposes of determining compliance with any test or covenant contained in this Agreement, the First Lien Consolidated Secured Net Leverage Debt to Consolidated EBITDA Ratio, the Consolidated Total Net Leverage Debt to Consolidated EBITDA Ratio and the Consolidated Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 and 2.15) on a Pro Forma Basis with respect to each Specified Transaction occurring during the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four-four quarter period but not later than the date of such calculation; provided that notwithstanding the foregoing, when calculating the First Lien Net Leverage Consolidated Fixed Charge Coverage Ratio for purposes of (i) determining the applicable percentage of Excess Cash Flow for purposes of Section 2.05(b), (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and but not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenantfinancial covenant set forth in Section 7.11, any Specified Transaction and any related adjustment contemplated in the definition of “Pro Forma Basis Basis” (and corresponding provisions of the definition of “Consolidated EBITDA”) that occurred subsequent to the end of the applicable four quarter period shall not be given Pro Forma Effect. .
(b) For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenantfinancial covenant set forth in Section 7.11 or calculation of the Consolidated Secured Net Debt to Consolidated EBITDA Ratio, (x) in the case of any Consolidated Total Net Debt to Consolidated EBITDA Ratio or the Consolidated Fixed Charge Coverage Ratio, if no Section 6.01 Financials have been delivered to the Administrative Agent at such compliance required after delivery of financial statements time, such ratio shall be calculated based on Consolidated EBITDA for the four consecutive fiscal quarter ending on or about June quarters of the Company ended March 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter most recently then ended for which financial statements have been delivered .
(or were required to have been deliveredc) in accordance with Section 6.01, or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.087.11) that requires compliance or Pro Forma Compliance with the Financial Covenantfinancial covenant set forth in Section 7.11, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is Borrowers are otherwise required to comply with such covenant under the terms of Section 7.08 7.11 at such time. .
(d) [Reserved].
(e) For purposes of making any computation referred calculating the principal amount of Indebtedness permitted to above:
be incurred pursuant to (1w) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest Section 7.03(a) in reliance on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period clause (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2I)(y) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
definition “Maximum New Incremental Indebtedness Amount,” (3x) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitationSection 7.03(f), (1y) adjustments calculated Section 7.03(o) or (z) Section 7.03(v) in accordance with Regulation S-X under reliance of the Securities Act, ratio test in clause (2B) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to of the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in proviso of the definition of “Pro Forma BasisPermitted Additional Debt”); provided that , any such adjustments that consist pro forma calculation of reductions in costs and other operating improvements the Consolidated Total Net Debt to Consolidated EBITDA Ratio or synergies the Consolidated Secured Net Debt to Consolidated EBITDA Ratio, as applicable, shall be calculated in accordance with, and satisfy determined without netting the requirements specified in, the definition of “Pro Forma Cost Savingsproceeds thereof.”
Appears in 1 contract
Pro Forma Calculations. (a) Notwithstanding anything to the contrary herein (subject to Section 1.02(j))herein, financial ratios and tests, including the First Lien Net Leverage Ratio, the Total Secured Net Leverage Ratio and the Fixed Charge Coverage Ratio Total Net Leverage Ratio, and compliance with covenants determined by reference to Consolidated Net Tangible Assets EBITDA or Total Assets, shall be calculated (including for purposes of Sections 2.14 and 2.15) on a Pro Forma Basis with respect to each Specified Transaction occurring during in the applicable four quarter period to which such calculation relatesmanner prescribed by this Section 1.07; provided, and/or subsequent that notwithstanding anything to the end contrary in clauses (b), (c), (d) or (f) of such four-quarter period but not later than the date of such calculation; provided that notwithstanding the foregoingthis Section 1.07, (A) when calculating the First Lien Net Leverage Ratio any such ratio or test for purposes of (i) determining the applicable percentage definition of Excess Cash Flow for purposes of Section 2.05(b)“Applicable Rate”, and (ii) Section 6.12 (other than for the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) purpose of determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with Section 6.12), the Financial Covenant, any Specified Transaction and any related adjustment contemplated events described in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) this Section 1.07 that occurred subsequent to the end of the applicable four quarter period Test Period shall not be given Pro Forma EffectEffect and cash and Permitted Investments included on the consolidated balance sheet of the Borrower and its Restricted Subsidiaries as of the date of the event for which the calculation of any such ratio is made shall be taken into account in lieu of cash or Permitted Investments as of the last day of the relevant Test Period and (B) when calculating any such ratio or test for purposes of the incurrence of any Indebtedness, cash and Permitted Investments resulting from the incurrence of any such Indebtedness shall be excluded from the pro forma calculation of any applicable ratio or test. For In addition, whenever a financial ratio or test is to be calculated
on a Pro Forma Basis, the reference to the “Test Period” for purposes of calculating such financial ratio or test shall be deemed to be a reference to, and shall be based on, the most recently ended Test Period for which internal financial statements of the Borrower are available (as determined in good faith by the Borrower) (it being understood that for purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with Section 6.12, if no Test Period with an applicable level cited in Section 6.12 has passed, the Financial Covenantapplicable level shall be the level for the first Test Period cited in Section 6.12 with an indicated level).
(b) For purposes of calculating any financial ratio or test or compliance with any covenant determined by reference to Consolidated EBITDA or Total Assets, Specified Transactions (xwith any incurrence or repayment of any Indebtedness in connection therewith to be subject to clause (d) of this Section 1.07) that (i) have been made during the applicable Test Period or (ii) if applicable as described in clause (a) above, have been made subsequent to such Test Period and prior to or substantially concurrently with the event for which the calculation of any such ratio is made shall be calculated on a Pro Forma Basis assuming that all such Specified Transactions (and any increase or decrease in Consolidated EBITDA, Total Assets and the component financial definitions used therein attributable to any Specified Transaction) had occurred on the first day of the applicable Test Period (or, in the case of Total Assets, on the last day of the applicable Test Period). If since the beginning of any applicable Test Period any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Borrower or any of its Restricted Subsidiaries since the beginning of such compliance Test Period shall have made any Specified Transaction that would have required after delivery of adjustment pursuant to this Section 1.07, then such financial statements for the fiscal quarter ending on ratio or about June 30, 2014, such test (or Total Assets) shall be calculated to give Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) Effect thereto in accordance with this Section 6.01, or 1.07.
(yc) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Whenever Pro Forma Compliance Effect is to be given to a Specified Transaction, the pro forma calculations shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate made in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined good faith by a responsible financial or accounting officer of the Borrower Representative and, in the case of any “Test Period” determined by reference to internal financial statements of the Borrower (as opposed to the financial statements most recently delivered pursuant to Section 5.01(a) or Section 5.01(b)), as set forth in a certificate of a responsible financial or accounting officer of the Borrower (with supporting calculations), and may include, for the avoidance of doubt, the amount of “run-rate” cost savings, operating expense reductions and synergies resulting from or relating to, any Specified Transaction (including the Transactions) to the extent permitted by the definition of “Consolidated EBITDA.”
(d) In the event that the Borrower or any Restricted Subsidiary incurs (including by assumption or guarantees) or repays (including by repurchase, redemption, repayment, retirement, discharge, defeasance or extinguishment) any Indebtedness (in each case, other than Indebtedness incurred or repaid (other than Indebtedness incurred or repaid (other than any repayment from the proceeds of other Indebtedness) under any revolving credit facility unless such Indebtedness has been permanently repaid and not replaced)) subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then such financial ratio or test shall be calculated giving Pro Forma Effect to such incurrence, assumption, guarantee, repurchase, redemption, repayment, retirement, discharge, defeasance or extinguishment of Indebtedness, or such issuance, repurchase or redemption of Disqualified Stock, in each case to the extent required, as if the same had occurred on the last day of the applicable Test Period.
(e) [Reserved]
(f) As relates to any action being taken solely in connection with a Limited Condition Transaction, for purposes of:
(i) determining compliance with any provision of this Agreement (other than the Financial Covenant) which requires the calculation of any financial ratio or test, including the First Lien Net Leverage Ratio, Secured Net Leverage Ratio and Total Net Leverage Ratio, or
(ii) testing availability under baskets set forth in this Agreement (including baskets determined by reference to Consolidated EBITDA or Total Assets), in each case, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), the date of determination of whether any such action is permitted hereunder shall be deemed to be the rate date the definitive agreements for such Limited Condition Transaction are entered into (the “LCT Test Date”), and if, after giving Pro Forma Effect to the Limited Condition Transaction (and the other transactions to be entered into in connection therewith, including any incurrence of interest implicit Indebtedness and the use of proceeds thereof, as if they had occurred on the first day of the most recent Test Period ending prior to the LCT Test Date (except with respect to any incurrence or repayment of Indebtedness for purposes of the calculation of any leverage-based test or ratio, which shall in each case be treated as if they had occurred on the last day of such Capitalized Lease Obligation Test Period)), the Borrower or any of its Restricted Subsidiaries would have been permitted to take such action on the relevant LCT Test Date in accordance compliance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime such ratio, test or similar ratebasket, a eurocurrency interbank offered ratesuch ratio, test or other rate, basket shall be deemed to have been based upon complied with; provided that if financial statements for one or more subsequent fiscal periods shall have become available, the rate actually chosenBorrower may elect, orin its sole discretion, to redetermine all such ratios, tests or baskets on the basis of such financial statements, in which case, such date of redetermination shall thereafter be deemed to be the applicable LCT Test Date. For the avoidance of doubt, if nonethe Borrower has made an LCT Election and any of the ratios, tests or baskets for which compliance was determined or tested as of the LCT Test Date would have failed to have been complied with as a result of fluctuations in any such ratio, test or basket, including due to fluctuations in Consolidated EBITDA or Total Assets of the Borrower or the Person subject to such Limited Condition Transaction, at or prior to the consummation of the relevant transaction or action, such baskets, tests or ratios will not be deemed to have failed to have been complied with as a result of such fluctuations. If the Borrower has made an LCT Election for any Limited Condition Transaction, then based upon in connection with any calculation of any ratio, test or basket availability with respect to the incurrence of Indebtedness or Liens, the making of Restricted Payments, the making of any Investment, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of the Borrower, the prepayment, redemption, purchase, defeasance or other satisfaction of Indebtedness, or the designation of an Unrestricted Subsidiary (each, a “Subsequent Transaction”) following the relevant LCT Test Date and prior to the earlier of the date on which such optional rate chosen as Limited Condition Transaction is consummated or the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility date that the definitive agreement or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance irrevocable notice for such Limited Condition Transaction is terminated or expires without consummation of such Indebtedness during the applicable period; and
(5) to the extent not already covered aboveLimited Condition Transaction, for purposes of determining whether such Subsequent Transaction is permitted under this Agreement, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may includeratio, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated test or basket shall be required to give effect to any be satisfied on a Pro Forma Cost Savings Basis (i) assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated and (3ii) all adjustments described on Schedule 1.01(a) to the extent assuming such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs Limited Condition Transaction and other operating improvements or synergies shall be calculated transactions in accordance with, connection therewith (including any incurrence of Indebtedness and satisfy the requirements specified in, the definition use of “Pro Forma Cost Savingsproceeds thereof) have not been consummated.”
Appears in 1 contract
Pro Forma Calculations. (a) Notwithstanding anything to the contrary herein herein, financial ratios and tests, including the Total Leverage Ratio, the Secured Leverage Ratio, the Consolidated First Lien Net Leverage Ratio and the Consolidated Cash Interest Coverage Ratio shall be calculated in the manner prescribed by this Section 1.09; provided that notwithstanding anything to the contrary in clauses (subject to Section 1.02(j)b), (c) or (d) of this Section 1.09, when calculating the Consolidated First Lien Net Leverage Ratio, the Total Net Leverage Ratio and the Fixed Charge Consolidated Cash Interest Coverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 and 2.15) on a Pro Forma Basis with respect to Ratio, each Specified Transaction occurring during the applicable four quarter period to which such calculation relatesas applicable, and/or subsequent to the end of such four-quarter period but not later than the date of such calculation; provided that notwithstanding the foregoing, when calculating the First Lien Net Leverage Ratio for purposes of (i) determining the applicable percentage definition of Excess Cash Flow for purposes of Section 2.05(b), “Applicable Rate,” (ii) the definition of “Applicable Rate, ECF Percentage” and (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with any covenant pursuant to Section 7.11, the Financial Covenant, any Specified Transaction and any related adjustment contemplated events described in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) this Section 1.09 that occurred subsequent to the end of the applicable four quarter period Test Period shall not be given Pro Forma Effectpro forma effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with In addition, whenever a financial ratio or test is to be calculated on a pro forma basis, the Financial Covenant, (x) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum “Test Period” for purposes of calculating such financial ratio or test shall be deemed to be a reference to, and shall be based on, the most recently ended Test Period for which internal financial statements of the Borrower are available (as determined in good faith by the Borrower); provided that, the provisions of this sentence shall not apply for purposes of calculating the Consolidated First Lien Net Leverage Ratio, the Total Leverage Ratio permitted and the Consolidated Cash Interest Coverage Ratio for purposes of the definition of “Applicable Rate,” the definition of “Applicable ECF Percentage” and determining actual compliance with Section 7.11 (other than for the fiscal quarter most recently then ended purpose of determining pro forma compliance with Section 7.11), each of which shall be
(b) For purposes of calculating any financial ratio or test, Specified Transactions (with any incurrence or repayment of any Indebtedness in connection therewith to be subject to clause (d) of this Section 1.09) that have been made (i) during the applicable Test Period and (ii) if applicable as described in clause (a) above, subsequent to such Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made shall be calculated on a pro forma basis assuming that all such Specified Transactions (and any increase or decrease in Consolidated EBITDA and the component financial statements definitions used therein attributable to any Specified Transaction) had occurred on the first day of the applicable Test Period. If since the beginning of any applicable Test Period any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Borrower or any of its Restricted Subsidiaries since the beginning of such Test Period shall have been delivered (made any Specified Transaction that would have required adjustment pursuant to this Section 1.09, then such financial ratio or were required test shall be calculated to have been delivered) give pro forma effect thereto in accordance with this Section 6.011.09.
(c) Whenever pro forma effect is to be given to a Specified Transaction, or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance pro forma calculations shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate made in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined good faith by a responsible financial or accounting officer of the Borrower Representative and include, for the avoidance of doubt, the amount of “run-rate” cost savings, operating expense reductions and synergies projected by the Borrower in good faith to be the rate realized as a result of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
specified actions taken, committed to be taken or expected to be taken (3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed calculated on a pro forma basis as though such cost savings, operating expense reductions and synergies had been realized on the first day of such period and as if such cost savings, operating expense reductions and synergies were realized during the entirety of such period) and “run-rate” means the full recurring benefit for a period that is associated with any action taken, committed to be taken or expected to be taken (including any savings expected to result from the elimination of a public target’s compliance costs with public company requirements) net of the amount of actual benefits realized during such period from such actions, and any such adjustments shall be computed based upon included in the average daily balance initial pro forma calculations of such Indebtedness financial ratios or tests and during any subsequent Test Period in which the applicable periodeffects thereof are expected to be realized relating to such Specified Transaction; and
provided that (5A) such amounts are reasonably identifiable and factually supportable in the good faith judgment of the Borrower, (B) such actions have been taken or with respect to which substantial steps have been taken (in the good faith determination of the Borrower) within eighteen (18) months after the date of such Specified Transaction, and (C) no amounts shall be added pursuant to this clause (c) to the extent not already covered aboveduplicative of any amounts that are otherwise added back in computing Consolidated EBITDA, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any whether through a pro forma calculation may includeadjustment or otherwise, without limitationwith respect to such period; provided that any increase to Consolidated EBITDA as a result of cost savings, (1operating expense reductions and synergies pursuant to this Section 1.09(c) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) shall be subject to the extent such adjustments, without duplication, continue to be applicable to limitation set forth in the Reference Period proviso of clause (as defined in viii) of the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost SavingsConsolidated EBITDA.”
Appears in 1 contract
Samples: Term Loan Credit Agreement (Prestige Consumer Healthcare Inc.)
Pro Forma Calculations. Notwithstanding anything to the contrary herein (subject to Section 1.02(j1.02(i))) herein, the First Lien Net Leverage Ratio, the Total Senior Secured Net Leverage Ratio and the Fixed Charge Coverage Total Net Leverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 and 2.152.17) on a Pro Forma Basis with respect to each Specified Transaction occurring during the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four---quarter period but not later than the date of such calculation; provided that notwithstanding the foregoing, when calculating the First Lien Net Leverage Ratio for purposes of (i) determining the applicable percentage of Excess Cash Flow for purposes of Section 2.05(b), (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenantfinancial covenant set forth in Section 7.11, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four quarter period shall not be given Pro Forma Effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenantfinancial covenant set forth in Section 7.11, (x) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June September 30, 20142013, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01, or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter ending June September 30, 20142013. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.087.11) that requires compliance or Pro Forma Compliance with the Financial Covenantfinancial covenant set forth in Section 7.11, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux DutchParent Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 7.11 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savings.”
Appears in 1 contract
Pro Forma Calculations. Notwithstanding anything to the contrary herein (subject to Section 1.02(j1.02(i)), the First Lien Net Leverage Ratio, the Total Net Leverage Ratio and the Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 and 2.15) on a Pro Forma Basis with respect to each Specified Transaction occurring during the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four-quarter period but not later than the date of such calculation; provided that notwithstanding the foregoing, when calculating the First Lien Net Leverage Ratio for purposes of (i) determining the applicable percentage of Excess Cash Flow for purposes of Section 2.05(b), (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenant, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four quarter period shall not be given Pro Forma Effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenant, (x) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01, or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and;
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savings.”
Appears in 1 contract
Samples: Credit Agreement
Pro Forma Calculations. (a) Notwithstanding anything to the contrary herein (subject to Section 1.02(j))herein, the Consolidated First Lien Net Leverage Debt Ratio, the Total Net Leverage Consolidated Senior Secured Debt Ratio and the Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 and 2.15) on a Pro Forma Basis with respect to each Specified Transaction occurring during the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four-quarter period but not later than the date of such calculation, except with respect to any Specified Transaction occurring in connection with a Limited Condition Transaction causing such calculation which shall also be given Pro Forma Effect in accordance with Section 1.10(c); provided that notwithstanding the foregoing, when calculating the First Consolidated Senior SecuredFirst Lien Net Leverage Debt Ratio for purposes of (i) determining the applicable percentage of Excess Cash Flow for purposes of set forth in Section 2.05(b), 2.05(b)(i) and (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma BasisBasis or compliance under Section 2.14(a)) with the Financial Covenantcovenant pursuant to Section 7.11, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four quarter period shall not be given Pro Forma Effect. For 77 Syniverse Credit Agreement
(b) In connection with any action being taken in connection with a Limited Condition Transaction, solely for purposes of determining compliance with any condition set forth in 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 the Borrower, be deemed satisfied, so long as no Default, Event of Default or specified Default or Event of Default, as applicable, exists on the date (x) the definitive agreement for such Limited Condition Transaction is entered into or (y) in the case of a redemption, repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness, Disqualified Stock or Preferred Stock, irrevocable notice thereof is given. For the avoidance of doubt, if the Borrower has exercised its option under the first sentence of this clause (i) with respect to any such action, and any Default, Event of Default or specified Default or Event of Default, as applicable, occurs following the date (x) the definitive agreement for the applicable Limited Condition Transaction was entered into or (y) 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 Transaction, any such Default, Event of Default or specified Default or Event of Default, as applicable, shall be deemed to not have occurred or be continuing solely for purposes of determining whether any such action being taken in connection with such Limited Condition Transaction complies with such condition as to the absence of such Default, Event of Default or specified Default or Event of Default, as applicable.
(c) In connection with any action being taken in connection with a Limited Condition Transaction, solely for purposes of:
(i) determining compliance with any provision of this Agreement which requires Pro Forma Compliance the calculation of the Consolidated First Lien Debt Ratio, the Consolidated Senior Secured Debt Ratio, the Fixed Charge Coverage Ratio or any other financial ratio or metric (but, for the avoidance of doubt, not for purposes of determining whether the Borrower has actually complied with the Financial Covenant, financial covenant pursuant to Section 7.11); or
(xii) determining the amount or availability of baskets or thresholds set forth in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01, or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement based on any financial ratio or metric (other than the provisions including baskets measured as a percentage of Section 6.02(a) Total Assets or Section 7.08) that requires compliance EBITDA); provision, basket or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, threshold shall be deemed to have been based upon complied with. For the rate actually chosen, oravoidance of doubt, if nonethe Borrower has made an LCT Election for any Limited Condition Transaction and any of the provisions, baskets or thresholds for which compliance was determined or tested as of the LCT Test Date are exceeded as a result of fluctuations in any applicable ratio, metric, basket or threshold, including due to fluctuations in exchange rates or in EBITDA or Total Assets of the Borrower or the Person subject to such Limited Condition Transaction or any applicable currency exchange rate, at or prior to the consummation of the relevant transaction or action, such ratios, metrics, baskets or thresholds will not be deemed to have been exceeded as a result of such fluctuations solely for purposes of determining compliance of the relevant transaction or action with such provisions, baskets or thresholds. If the Borrower has made an LCT Election for any Limited Condition Transaction, then based upon such optional rate chosen as in connection with any subsequent calculation of any ratio, metric, basket or threshold with respect to the Incurrence or Discharge of Indebtedness or Liens, or the making of Investments, Restricted Payments, Asset Sales, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of the Borrower Representative may designate; and
or the designation of an Unrestricted Subsidiary on or following the relevant LCT Test Date and prior to the earlier of the date on which such Limited Condition Transaction is consummated or the definitive agreement for such Limited Condition Transaction (4if an acquisition or Investment) interest on any Indebtedness under a revolving credit facility is terminated or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance expires without consummation of such Indebtedness during the applicable period; and
(5) to the extent not already covered aboveLimited Condition Transaction, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may includeratio, without limitationmetric, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements basket or synergies threshold shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “on a Pro Forma Cost SavingsBasis assuming such Limited Condition 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.”
Appears in 1 contract
Pro Forma Calculations. Notwithstanding anything herein to the contrary herein (subject to Section 1.02(j))contrary, any calculation of the First Lien Consolidated Total Leverage Ratio, Consolidated Interest Coverage Ratio, Consolidated Senior Secured Net Leverage Ratio, the Total Net Leverage Ratio and the Fixed Charge Coverage Ratio and Consolidated Net EBITDA or Consolidated Tangible Assets for any Reference Period (x) during which an Acquisition or Disposition shall have occurred or (y) subsequent to such Reference Period and prior to or simultaneously with the event for which the calculation of any such financial ratio or financial amount is made shall each be calculated (including for purposes of Sections 2.14 and 2.15) made on a Pro Forma Basis with respect to each Specified Transaction occurring during the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four-quarter period but not later than the date of such calculation; provided that notwithstanding the foregoing, when calculating the First Lien Net Leverage Ratio for purposes of making the following determinations:
(i) determining the applicable percentage of Excess Cash Flow for purposes of Section 2.05(b), (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenant, any Specified Transaction and any related adjustment contemplated in pricing level under the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) “Applicable Rate;” provided that events that occurred subsequent to the end of the applicable four quarter period Reference Period shall not be given Pro Forma Effect. For purposes of pro forma effect;
(ii) determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenant, (x) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Consolidated Total Leverage Ratio permitted for and the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01, or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Consolidated Interest Coverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required conditions precedent for a proposed transaction have been satisfied as contemplated by subsection (iv) of this Section 1.03(c)); provided that, solely with respect to comply with such covenant under Section 7.17, events that occurred subsequent to the terms end of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being the applicable Reference Period shall not be given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2iii) interest calculating availability under the basket set forth in Section 2.16(a) based on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer the Consolidated EBITDA of the Borrower Representative to be and its consolidated Subsidiaries for the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designateapplicable Reference Period; and
(4iv) interest on determining whether the conditions precedent have been satisfied for a proposed transaction, including any Indebtedness under a revolving credit facility calculation of the Consolidated Senior Secured Net Leverage or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance Consolidated Total Leverage for purposes of such Indebtedness during Sections 2.16(a) and/or 7.03(f), and any determination of whether an Event of Default will result from the applicable period; and
(5) to the extent not already covered aboveconsummation thereof, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may includeincluding, without limitation, (1) adjustments calculated any Disposition or any Investment which results in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savingsan Acquisition.”
Appears in 1 contract
Samples: Credit Agreement (Integra Lifesciences Holdings Corp)
Pro Forma Calculations. Notwithstanding anything herein to the contrary herein (subject to Section 1.02(j))contrary, any calculation of the First Lien Consolidated Total Net Leverage Ratio, the Total Consolidated Interest Coverage Ratio, Consolidated Senior Secured Net Leverage Ratio or Consolidated EBITDA (for calculating any ratio) for any Reference Period (x) during which an event for which such calculation is made shall have occurred or (y) subsequent to such Reference Period and prior to or simultaneously with the Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets event for which such calculation is made shall in each case be calculated (including for purposes of Sections 2.14 and 2.15) made on a Pro Forma Basis with respect to each Specified Transaction occurring during the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four-quarter period but not later than the date of such calculation; provided that notwithstanding the foregoing, when calculating the First Lien Net Leverage Ratio for purposes of making the following determinations:
(i) determining the applicable percentage of Excess Cash Flow for purposes of Section 2.05(b), (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenant, any Specified Transaction and any related adjustment contemplated in pricing level under the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) “Applicable Rate;”provided that events that occurred subsequent to the end of the applicable four quarter period Reference Period shall not be given Pro Forma Effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenant, pro forma effect;
(xii) except in the case of any such subsection (iv) of this Section 1.03(c), determining compliance required after delivery of financial statements for with the fiscal quarter ending on or about June 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Consolidated Total Net Leverage Ratio permitted for and the fiscal quarter most recently then ended for which financial statements have been delivered (or were required Consolidated Interest Coverage Ratio; provided that, solely with respect to have been delivered) in accordance determining compliance with Section 6.017.18, or (y) in the case of any such compliance required prior events that occurred subsequent to the delivery referred to in clause (x) above, such Pro Forma Compliance end of the applicable Reference Period shall not be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2iii) interest calculating availability under the basket set forth in Section 2.16(a) based on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer the Consolidated EBITDA of the Borrower Representative to be and its Restricted Subsidiaries for the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designateapplicable Reference Period; and
(4iv) interest on determining whether the conditions precedent have been satisfied for a proposed transaction, including any Indebtedness under a revolving credit facility calculation of the Consolidated Senior Secured Net Leverage Ratio or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance Consolidated Total Net Leverage Ratio for purposes of such Indebtedness during Section 2.16(a), and any determination of whether an Event of Default will result from the applicable period; and
(5) to the extent not already covered aboveconsummation thereof, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may includeincluding, without limitation, (1) adjustments calculated any Disposition or any Investment which results in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savingsan Acquisition.”
Appears in 1 contract
Pro Forma Calculations. (a) Notwithstanding anything to the contrary herein (subject to Section 1.02(j))herein, the First Lien Net Leverage Ratio, the Total Net Leverage Ratio and the Fixed Charge Coverage Senior Secured Leverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 and 2.15) on a Pro Forma Basis with respect to each Specified Transaction occurring during in the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four-quarter period but not later than the date of such calculationmanner prescribed by this Section 1.07; provided that notwithstanding the foregoing, when calculating any such ratio for the First Lien Net Leverage Ratio for purposes purpose of (i) determining the applicable percentage definition of Excess Cash Flow for purposes of Section 2.05(b)Applicable Margin, (ii) the Applicable Rate, any mandatory prepayment under Section 2.10(b)(iii) or (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenant, any Specified Transaction the events set forth in clauses (b), (c) and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDAd) below that occurred subsequent to the end of the applicable four quarter period Test Period shall not be given Pro Forma Effectpro forma effect. [[NYCORP:3664832v12::08/15/2017--08:07 PM]]
(a) For purposes of determining compliance with calculating the Leverage Ratio and the Senior Secured Leverage Ratio, all Specified Transactions (and the incurrence or repayment of any provision Indebtedness by Holdings or any of this Agreement the Restricted Subsidiaries and the granting or terminating of any Liens in connection therewith) that have been consummated (i) during the applicable period of four consecutive fiscal quarters for which requires Pro Forma Compliance such financial ratio is being determined (the “Test Period”) or (ii) subsequent to such Test Period and prior to or substantially simultaneously with the Financial Covenant, (x) in event for which the case calculation of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01, or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower ratio is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness made shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis assuming that all such Specified Transactions (and any increase or decrease in EBITDA and the component financial definitions used therein attributable to any Specified Transaction) had occurred on the first day of the applicable Test Period.
(b) If pro forma effect is to be given to a Specified Transaction, the pro forma calculations shall be computed made in good faith based upon the average daily balance reasonable assumptions (and certified in writing) by a Financial Officer of such Indebtedness during the applicable period; and
Holdings and include only those adjustments that are (5A) directly attributable to the extent not already covered aboveSpecified Transactions with respect to which such adjustments are to be made, any such calculation (B) factually supportable and reasonably identifiable (in the good faith determination of a Financial Officer of Holdings) (and, for the avoidance of doubt, the adjustments referred to above (and subject to the requirements specified therein) may include adjustments calculated that reflect cost savings, operating expense reductions, and synergies as described in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, clause (1l) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in of the definition of “Pro Forma BasisEBITDA”). For the avoidance of doubt, all pro forma adjustments shall be consistent with, and subject to, the caps and limits set forth in the applicable definitions herein. To the extent compliance with the Financial Covenant is being tested prior to the first test date under the Financial Covenant, in order to determine permissibility of any action by Holdings or the Restricted Subsidiaries, such compliance shall be tested against the applicable ratio for such first test date.
(c) In the event that Holdings or any of the Restricted Subsidiaries incurs (including by assumption or guarantees) or repays (including by redemption, repayment, retirement or extinguishment) any Indebtedness included directly or indirectly in the calculation of the Leverage Ratio or the Senior Secured Leverage Ratio (other than Indebtedness incurred or repaid under any revolving credit facility in the Ordinary Course of Business for working capital purposes) subsequent to the end of the applicable Test Period and prior to or substantially simultaneously with the event for which the calculation of any such ratio is made, then the Leverage Ratio and/or the Senior Secured Leverage Ratio shall be calculated giving pro forma effect to such incurrence or repayment of Indebtedness, to the extent required, as if the same had occurred on the last day of the applicable Test Period.
(d) Notwithstanding anything to the contrary herein, to the extent that the terms of this Agreement require (i) compliance with any financial ratio or test (including any Leverage Ratio test, any Senior Secured Leverage Ratio test or the amount of Total Assets or the amount of EBITDA) or (ii) the absence of a Default or Event of Default (or any type of Default or Event of Default) as a condition to the making of any Limited Condition Acquisition or incurrence of Indebtedness in connection therewith, the determination of whether the relevant condition is satisfied may be made, at the election of the Borrower, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) either (x) the execution of the definitive agreement with respect to such Limited Condition Acquisition or (y) the consummation of the Limited Condition Acquisition and related incurrence of Indebtedness, in each case, after giving effect to the relevant Limited Condition Acquisition and related incurrence of Indebtedness, on a pro forma basis; provided that notwithstanding the foregoing, the absence of an Event of Default under Section 7.01(a) or (e) shall be a condition to the consummation of any such adjustments Limited Condition Acquisition and incurrence of Indebtedness. If the Borrower has made such an election to test at the time of the execution of the definitive agreement with respect to such Limited Condition Acquisition, then, in connection with any subsequent calculation of any ratio or test on or following the relevant determination date, and prior to the earlier of (x) the date on which such Limited Condition Acquisition is consummated [[NYCORP:3664832v12::08/15/2017--08:07 PM]] or (y) the date that consist the definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation of reductions in costs and other operating improvements such Limited Condition Acquisition, any such ratio or synergies test shall be calculated on (A) a pro forma basis assuming such Limited Condition Acquisition or any transactions in accordance withconnection therewith (including any incurrence of Indebtedness, Liens and the use of proceeds thereof) has been consummated, and satisfy also on (B) a standalone basis without giving effect to such Limited Condition Acquisition and any such transactions in connection therewith. In addition, if the requirements specified inproceeds of an Incremental Term Commitment are to be used to finance a Limited Condition Acquisition, then at the option of the Borrower and subject to the agreement of the lenders providing such financing, the definition commitments in respect thereof may be subject to customary “SunGard” conditionality.
(e) Notwithstanding anything to the contrary herein, with respect to any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that does not require compliance with a financial ratio (any such amounts, the “Pro Forma Cost SavingsFixed Amounts”) substantially concurrently with any such amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that requires compliance with a financial ratio (including Section 6.15 hereof, any Senior Secured Leverage Ratio test or any Leverage Ratio test) (any such amounts, the “Ratio-Based Amounts”), it is understood and agreed that the Fixed Amounts shall be disregarded in the calculation of the financial ratio or test applicable to any substantially concurrent utilization of the Ratio-Based Amounts; provided that the foregoing shall not apply to Restricted Payments. Notwithstanding anything to the contrary herein, with respect to any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that requires compliance with a financial ratio or test, at all times prior to the first delivery of financial statements pursuant to Section 5.08(a) or (b), compliance shall be determined based on the pro forma consolidated financial statements of Holdings delivered pursuant to Section 3.01(j) hereof.”
Appears in 1 contract
Pro Forma Calculations. Notwithstanding anything to the contrary herein (subject to Section 1.02(j))contained herein, all calculations of the First Lien Net Leverage Ratio, the Total Net Consolidated Leverage Ratio and the Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 determining the Applicable Rate or), the Consolidated Senior Secured Leverage Ratio (including for purposes of determining compliance with anythe financial covenant set forth in Section 7.11(a)) and 2.15) the Consolidated Fixed Charge Coverage Ratio (including for purposes of determining compliance with the financial covenant set forth in Section 7.11(b)), in each case, shall be made on a Pro Forma Basis with respect to each all Specified Transaction Transactions occurring during the applicable four quarter period Measurement Period to which such calculation relates, and/or subsequent to the end of such four-quarter period Measurement Period but not later than the date of such calculation; provided that provided, that, notwithstanding the foregoing, when calculating the First Lien Net Consolidated Leverage Ratio, the Consolidated Senior Secured Leverage Ratio or the Consolidated Fixed Charge Coverage Ratio, in each case, for purposes of determining (i) determining the applicable percentage of Excess Cash Flow for purposes of compliance with Section 2.05(b)7.11, and/or (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenant, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four quarter period Measurement Period shall not be given Pro Forma Effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenantany financial covenant set forth in Section 7.11, (xA) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June April 30, 20142021, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Consolidated Leverage Ratio and/or the minimum Consolidated Fixed Charge Coverage Ratio, as applicable, permitted for the fiscal quarter of the Borrower most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01, 6.01(a) or (yb), as applicable, and (B) in the case of any such compliance required prior to the delivery referred to in clause (xA) above, such Pro Forma Compliance shall be determined by reference to (1) the Pro Forma Financial Statements, and (2) the maximum First Lien Net Consolidated Leverage Ratio and/or the minimum Consolidated Fixed Charge Coverage Ratio, as applicable, permitted for the fiscal quarter ending June April 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savings2021.”
Appears in 1 contract
Samples: Credit Agreement (AeroVironment Inc)
Pro Forma Calculations. (a) Notwithstanding anything to the contrary herein (subject to Section 1.02(j))herein, for purposes of determining compliance with any test or covenant contained in this Agreement, the Consolidated Total First Lien Net Leverage Ratio, the Total Net Leverage Debt to Consolidated EBITDA Ratio and the Fixed Charge Coverage Consolidated Total Net Debt to Consolidated EBITDA Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 and 2.152.17) on a Pro Forma Basis with respect to each Specified Transaction occurring during the applicable four eight quarter period to which such calculation relates, and/or subsequent to the end of such four-eight quarter period but not later than the date of such calculation; provided that notwithstanding the foregoing, when calculating the Consolidated Total First Lien Net Leverage Debt to Consolidated EBITDA Ratio and the Consolidated Total Net Debt to Consolidated EBITDA Ratio, as applicable, for purposes of (i) determining the applicable percentage of Excess Cash Flow for purposes of Section 2.05(b), ) and (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and but not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenantfinancial covenant set forth in Section 7.11, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four eight quarter period shall not be given Pro Forma Effect. .
(b) For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenantfinancial covenant set forth in Section 7.11 or calculation of the Consolidated Total First Lien Net Debt to Consolidated EBITDA Ratio or the Consolidated Total Net Debt to Consolidated EBITDA Ratio, (x) in the case of any such compliance Pro Forma Compliance required after delivery of financial statements for the fiscal quarter Fiscal Quarter ending on or about June March 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum Consolidated Total First Lien Net Leverage Debt to Consolidated EBITDA Ratio permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01Test Period, or (y) in the case of any such compliance Pro Forma Compliance or ratio calculation required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum Consolidated Total First Lien Net Leverage Debt to Consolidated EBITDA Ratio permitted for the fiscal quarter Fiscal Quarter ending June March 30, 2014. 2014 and, if no Section 6.01 Financials have been delivered to the Administrative Agent at such time, such compliance and ratio shall be calculated based on Consolidated EBITDA for the four consecutive fiscal quarters of the Borrower ended December 29, 2013.
(c) With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.087.11) that requires compliance or Pro Forma Compliance with the Financial Covenantfinancial covenant set forth in Section 7.11, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 7.11 at such time. For .
(d) In connection with any Specified Transaction being taken in connection with a Limited Condition Acquisition, for purposes of making (x) determining compliance with any computation referred provision of this Agreement which requires Pro Forma Compliance with the financial covenant set forth in Section 7.11 or calculation of the Consolidated Total Net Debt to above:
Consolidated EBITDA Ratio or the Consolidated Total First Lien Net Debt to Consolidated EBITDA Ratio or (1y) testing baskets set forth in Article VII of this Agreement (including baskets measured as a percentage of Consolidated Total Assets), the date of determination, incurrence or establishment, as applicable, shall, at the option of the Borrower, be the time the definitive agreements for such Limited Condition Acquisition are entered into after giving effect to the Limited Condition Acquisition and the other Specified Transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) as if they occurred at the beginning of the applicable Test Period, and, for the avoidance of doubt, if any Indebtedness bears of such baskets or ratios are exceeded as a floating rate result of interest and is being given pro forma effectfluctuations in such ratio or basket, the interest on such Indebtedness shall be calculated as if the rate including due to fluctuations in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial Consolidated EBITDA or accounting officer Consolidated Total Assets of the Borrower Representative or the Person subject to be such Limited Conditional Acquisition, at or prior to the rate consummation of interest implicit in the relevant transaction or action, such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime baskets or similar rate, a eurocurrency interbank offered rate, or other rate, shall ratios will not be deemed to have been based upon the rate actually chosen, or, exceeded as a result of such fluctuations; provided that if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
has made such an election, in connection with the calculation of any ratio or basket availability with respect to the incurrence of Indebtedness or Liens, or the making of Investments, Restricted Payments, prepayments of Junior Financing, Dispositions, fundamental changes under Section 7.04 or the designation of an Unrestricted Subsidiary (4but, for the avoidance of doubt, excluding, for purposes of calculating the financial covenant set forth in Section 7.11) interest on or following the date of such election 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, any Indebtedness under a revolving credit facility such ratio or a Qualified Receivables Financing computed basket shall be calculated on a pro forma basis shall be computed based upon Pro Forma Basis assuming such Limited Condition Acquisitions and other Specified Transactions in connection therewith (including any incurrence of Indebtedness and the average daily balance use of such Indebtedness during the applicable period; and
(5proceeds thereof) have been consummated, except to the extent not already covered abovethat such calculation would result (x) in a lower Consolidated Total Net Debt to Consolidated EBITDA Ratio or Consolidated Total First Lien Net Debt to Consolidated EBITDA Ratio, as applicable, or (y) a larger basket than would apply if such calculation was made without giving Pro Forma Effect to such Limited Condition Acquisition and the other Specified Transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof).
(e) For purposes of calculating the principal amount of Indebtedness permitted to be incurred pursuant to (w) either Section 2.14(a) or Section 2.17(a), in each case, in reliance on clause (y) of the definition “Incremental Amount,” (x) Section 7.03(f), (y) Section 7.03(o) or (z) Section 7.03(v) in reliance of the ratio test in clause (B) of the proviso of the definition of Permitted Additional Debt (collectively, the “Ratio-Based Debt Baskets”), any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may includeof the Consolidated Total Net Debt to Consolidated EBITDA Ratio or the Consolidated Total First Lien Net Debt to Consolidated EBITDA Ratio, as applicable, shall be determined (x) without limitation, netting the proceeds thereof and (1y) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give without giving effect to any Pro Forma Cost Savings and other incurrence of Indebtedness on the date of determination pursuant to any clause or sub-clause of Section 7.03 other than a Ratio-Based Debt Basket.
(3f) all adjustments described on Schedule 1.01(a) to For purposes of calculating the extent such adjustments, without duplication, continue amount of Liens permitted to be applicable incurred pursuant to the Reference Period (as defined x) (solely with respect to Indebtedness incurred pursuant to Section 2.14(a) in reliance of clause (y) of the definition of “Pro Forma BasisIncremental Amount”) Section 7.01(a); provided that any such adjustments that consist , (y) (solely with respect to Indebtedness incurred pursuant to Section 2.17(a) in reliance of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, clause (y) of the definition of “Pro Forma Cost SavingsIncremental Amount”) Section 7.01(gg)(ii) or (z) Section 7.01(gg)(v) (collectively, the “Ratio-Based Lien Baskets”), any pro forma calculation of the Consolidated Total First Lien Net Debt to Consolidated EBITDA Ratio shall be determined without giving effect to any other incurrence of Liens on the date of determination pursuant to any clause or sub-clause of Section 7.01 other than a Ratio-Based Lien Basket.”
Appears in 1 contract
Samples: Credit Agreement (Chicagoland Television News, LLC)
Pro Forma Calculations. Notwithstanding anything to the contrary herein (subject to Section 1.02(j))herein, the First Lien Net Leverage Ratio, Ratio and the Total Net Leverage Ratio and the Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 and 2.15) on a Pro Forma Basis with respect to each Specified Transaction occurring during the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four-quarter period but not later than the date of such calculation; provided that that, notwithstanding the foregoing, when calculating the First Lien Net Leverage Ratio for purposes of (i) determining the applicable percentage of Excess Cash Flow for purposes of Section 2.05(b), ) and (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenantfinancial covenant set forth in Section 7.10, any Specified Transaction and any related adjustment contemplated in the definition of “Pro Forma Basis Basis” (and corresponding provisions of the definition of “Consolidated EBITDA”) that occurred subsequent to the end of the applicable four quarter period shall not be given Pro Forma Effect. For purposes of determining compliance Notwithstanding the foregoing, with respect to any provision of this Agreement which requires Pro Forma Compliance with Limited Condition Acquisition only, at the Financial CovenantBorrower’s option, (x) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted and the Total Net Leverage Ratio shall be determined, and any default or event of default blocker shall be tested, as of the date the definitive acquisition agreement for such Limited Condition Acquisition is entered into and calculated as if the fiscal quarter most recently then ended for which acquisition and other pro forma events in connection therewith were consummated on such date, provided that (i) other than as specifically provided below in this Section 1.11, the Consolidated Net Income (and any other financial statements have been delivered (or were required to have been delivereddefined term derived therefrom) in accordance with Section 6.01shall not include any Consolidated Net Income of, or (y) in attributable to, the case of target company or assets associated with any such compliance required prior Limited Condition Acquisition for usages other than in connection with the applicable transaction pertaining to such Limited Condition Acquisition unless and until the delivery referred to in clause closing of such Limited Condition Acquisition shall have actually occurred, (xii) above, such Pro Forma Compliance shall be determined by reference to the maximum determination of the First Lien Net Leverage Ratio permitted and the Total Net Leverage Ratio on or following the date of the definitive acquisition agreement and prior to the earlier of the date on which such acquisition is consummated or the definitive agreement for such acquisition is terminated shall be calculated on a pro forma basis assuming such acquisition and other pro forma events in connection therewith (including any incurrence of Indebtedness) have been consummated, and (iii) after the fiscal quarter ending June 30signing date but before the closing date for a Limited Condition Acquisition, 2014the determination of ratios and baskets for purposes not related to such Limited Condition Acquisition shall be made as if the closing date had occurred on the same date as the signing date until such earlier time on which the applicable Limited Condition Acquisition is consummated, terminated or abandoned (the proviso of this sentence shall be referred to as the “Limited Condition Acquisition Proviso”). With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.087.10) that requires compliance or Pro Forma Compliance with the Financial Covenantfinancial covenant set forth in Section 7.10, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 7.10 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savings.”
Appears in 1 contract
Pro Forma Calculations. (a) Notwithstanding anything to the contrary herein herein, financial ratios and tests, including the Total Leverage Ratio, the Secured Leverage Ratio, the Consolidated First Lien Net Leverage Ratio and the Consolidated Cash Interest Coverage Ratio shall be calculated in the manner prescribed by this Sec tion 1.09; provided that notwithstanding anything to the contrary in clauses (subject to Section 1.02(j)b), (c) or (d) of this Sec tion 1.09, when calculating the Consolidated First Lien Net Leverage Ratio, the Total Net Leverage Ratio and the Fixed Charge Consolidated Cash Interest Coverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 and 2.15) on a Pro Forma Basis with respect to Ratio, each Specified Transaction occurring during the applicable four quarter period to which such calculation relatesas applicable, and/or subsequent to the end of such four-quarter period but not later than the date of such calculation; provided that notwithstanding the foregoing, when calculating the First Lien Net Leverage Ratio for purposes of (i) determining the applicable percentage definition of Excess Cash Flow for purposes of Section 2.05(b), “Applicable Rate,” (ii) the defmition of “Applicable Rate, ECF Percentage of Excess Cash Flow” and (iii) the Applicable Commitment Fee and (iv) determining de termining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with any covenant pursuant to Section 7.11, the Financial Covenant, any Specified Transaction and any related adjustment contemplated events described in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) this Section 1.09 that occurred subsequent to the end of the applicable four quarter period Test Period shall not be given Pro Forma Effectproforma effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with In addition, whenever a fi nancial ratio or test is to be calculated on a proforma basis, the Financial Covenant, (x) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum “Test Period” for purpos es of calculating such financial ratio or test shall be deemed to be a reference to, and shall be based on, the most recently ended Test Period for which internal financial statements of the Borrower are available (as determined in good faith by the Borrower);provided that, the provisions of this sentence shall not ap ply for purposes of calculating the Consolidated First Lien Net Leverage Ratio, the Total Leverage Ratio permitted and the Consolidated Cash Interest Coverage Ratio for purposes of the defmition of “Applicable Rate,” the defmition of “Applicable ECF Percentage of Excess Cash Flow” and determining actual compliance with Section 7.11 (other than for the fiscal quarter most recently then ended purpose of determining proforma compliance with Section 7.11), each of which shall be based on the financial statements delivered pursuant to Section 6.0 1(a) or (b), as applicable, for the relevant Test Period.
(b) For purposes of calculating any financial ratio or test, Specified Transactions (with any incurrence or repayment of any Indebtedness in connection therewith to be subject to clause (d) of this Section 1.09) that have been made (i) during the applicable Test Period and (ii) if applicable as described in clause (a) above, subsequent to such Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made shall be calculated on aproforzna basis assuming that all such Specified Transactions (and any increase or decrease in Consolidated EBITDA and the component financial statements definitions used therein attributable to any Specified Transaction) had occurred on the first day of the applicable Test Period. If since the beginning of any applicable Test Period any Person that subse quently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Borrower or any of its Restricted Subsidiaries since the beginning of such Test Period shall have been delivered (made any Specified Transaction that would have required adjustment pursuant to this Section 1.09, then such financial ratio or were required test shall be calculated to have been delivered) give proforma effect thereto in accordance with Section 6.01this Sec tion 1.09. -59-
(c) Wheneverproforma effect is to be given to a Specified Transaction, or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance theproforma calcu lations shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate made in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined good faith by a responsible financial fmancial or accounting officer of the Borrower Representative and include, for the avoidance of doubt, the amount of “mn-rate” cost savings, operating expense reductions and synergies projected by the Borrower in good faith to be realized as a result of specified actions taken, committed to be taken or expected to be taken (calculated on aproforma basis as though such cost sav ings, operating expense reductions and synergies had been realized on the rate first day of interest implicit in such Capitalized Lease Obligation in accordance period and as if such cost savings, operating expense reductions and synergies were realized during the entirety of such period) and “mn-rate” means the fill recurring benefit for a period that is associated with GAAP;
any action tak en, committed to be taken or expected to be taken (3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor including any savings expected to result from the elim ination of a prime or similar ratepublic target’s compliance costs with public company requirements) net of the amount of ac tual benefits realized during such period from such actions, a eurocurrency interbank offered rate, or other rate, and any such adjustments shall be deemed included in the initial proforina calculations of such financial ratios or tests and during any subsequent Test Period in which the effects thereof are expected to be realized relating to such Specified Transaction; provided that (A) such amounts are reasonably identifiable and factually supportable in the good faith judgment of the Borrower, (B) such actions have been based upon taken or with respect to which substantial steps have been taken (in the rate actually chosengood faith determination of the Borrower) within eighteen (18) months after the date of such Specified Transaction, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
and (4C) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis no amounts shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
added pursuant to this clause (5c) to the extent not already covered aboveduplicative of any amounts that are otherwise added back in computing Consolidated EBITDA, any whether through a pro for- ma adjustment or otherwise, with respect to such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”)period; provided that any such adjustments that consist increase to Consolidated EBITDA as a result of cost savings, operating expense reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savings.”pursuant to this Sec tion 1.09
Appears in 1 contract
Pro Forma Calculations. (a) Notwithstanding anything to the contrary herein (subject to Section 1.02(j))herein, financial ratios and tests, including the First Lien Consolidated Total Net Leverage Ratio, the Total Consolidated Secured Net Leverage Ratio and the Fixed Charge Coverage Consolidated Senior Secured Net Leverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 and 2.15) on a Pro Forma Basis with respect to each Specified Transaction occurring during in the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four-quarter period but not later than the date of such calculationmanner prescribed by this Section 1.11; provided that notwithstanding anything to the foregoingcontrary in this Section 1.11, when calculating the First Lien Consolidated Total Net Leverage Ratio for purposes of (i) determining the applicable percentage definition of Excess Cash Flow for purposes of Section 2.05(b), “Applicable ECF Percentage,” (ii) the definition of “Applicable RateAsset Sale Percentage”, and (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with any covenant pursuant to Section 7.11, in each case, the Financial Covenant, any Specified Transaction and any related adjustment contemplated events described in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) this Section 1.11 that occurred subsequent to the end of the applicable four quarter period Test Period shall not be given Pro Forma Effectpro forma effect. In addition, whenever a financial ratio or test is to be calculated on a pro forma basis, the reference to the “Test Period” for purposes of calculating such financial ratio or test shall be deemed to be a reference to, and shall be based on, the most recently ended Test Period for which financial statements of the Parent are available (as determined in good faith by the Lead Borrower); provided that, the provisions of this sentence shall not apply for purposes of calculating the Consolidated Senior Secured Net Leverage Ratio for purposes of the definition of “Applicable ECF Percentage”, the definition of “Applicable Asset Sale Percentage”, or determining actual compliance with Section 7.11 (other than for the purpose of determining pro forma compliance with Section 7.11), each of which shall be based on the financial statements delivered pursuant to Sections 6.01(a) or (b), as applicable, for the relevant Test Period.
(b) For purposes of calculating any financial ratio or test or basket that is based on a percentage of Consolidated EBITDA or Total Assets, Specified Transactions (with any incurrence or repayment of any Indebtedness in connection therewith to be subject to Section 1.11(d)) that have been made (i) during the applicable Test Period and (ii) if applicable as described in Section 1.11(a), subsequent to such Test Period and prior to or substantially concurrently with the event for which the calculation of any such ratio is made shall be calculated on a pro forma basis assuming that all such Specified Transactions (and any increase or decrease in Consolidated EBITDA, Total Assets and the component financial definitions used therein attributable to any Specified Transaction) had occurred on the first day of the applicable Test Period (or, in the case of the determination of Total Assets, the last day of the applicable Test Period). If since the beginning of any applicable Test Period any Person that subsequently became a Restricted Subsidiary of the Parent or was merged, amalgamated or consolidated with or into any Borrower or any of the Parent’s other Restricted Subsidiaries since the beginning of such Test Period shall have made any Specified Transaction that would have required adjustment pursuant to this Section 1.11, then such financial ratio or test (or the calculation of Total Assets) shall be calculated to give pro forma effect thereto in accordance with this Section 1.11.
(c) Whenever pro forma effect is to be given to the Transactions, a Specified Transaction, the implementation of an operational initiative or operational change, the pro forma calculations (i) shall be made in good faith by a Responsible Officer of the Lead Borrower and (ii) may include, for the avoidance of doubt, the amount of “run-rate” cost savings, operating expense reductions, other operating improvements and cost synergies resulting from, or relating to, such initiative or change, such Transaction or such Specified Transaction projected by the Lead Borrower in good faith to be realizable as a result of actions taken or expected to be taken (calculated on a pro forma basis as though such cost savings, operating expense reductions, other operating improvements and cost synergies had been realized on the first day of such period as if such cost savings, operating expense reductions, other operating improvements and cost synergies were realized during the entirety of such period and such that “run-rate” means the full recurring projected benefit for a period that is associated with any action taken or expected to be taken (including any savings or other benefits expected to result from the elimination of a public target’s compliance costs with public company requirements) net of the amount of actual benefits realized during such period from such actions), and any such adjustments shall be included in the initial pro forma calculation of such financial ratios or tests or basket that is based on a percentage of Consolidated EBITDA relating to such initiative or change, such Transaction or such Specified Transaction (and in respect of any subsequent pro forma calculation in which such initiative or change, such Transaction or such Specified Transaction is given pro forma effect) and during any applicable subsequent Test Period in which the effects thereof are expected to be realizable, relating to such initiative or change, such Transaction or such Specified Transaction; provided that (x) a duly completed certificate signed by a Responsible Officer of the Lead Borrower shall be delivered to the Administrative Agent together with the Compliance Certificate required to be delivered pursuant to Section 6.02, certifying that such cost savings, operating expense reductions, other operating improvements and/or cost synergies are readily identifiable, factually supportable and have been determined in good faith by the Lead Borrower to be reasonably anticipated to be realizable in the good faith judgment of the Lead Borrower, within twenty-four (24) months after the consummation of such initiative or change (or, with respect to the Transactions, within 24 months after the consummation of the Transactions), such Transaction or such Specified Transaction, which is expected to result in such cost savings, operating expense reductions, other operating improvements or cost synergies and (y) no cost savings, operating expense reductions, other operating improvements or cost synergies shall be added pursuant to clause (ii) above to the extent duplicative of any expenses or charges otherwise added to Consolidated EBITDA (or any component thereof) , whether through a pro forma adjustment or otherwise, for such period; provided, further, that all amounts added back to Consolidated EBITDA pursuant to clause (ii) above, together with all amounts added back to Consolidated EBITDA pursuant to clauses (a)(iv) and (a)(vii) in the definition thereof, shall not exceed, in the aggregate 25% of Consolidated EBITDA (calculated after giving effect to such amounts that would be added back pursuant to such clause (ii) and clause (a)(vii)(B) in the definition of Consolidated EBITDA).
(d) In the event that any Borrower or any other Restricted Subsidiary of the Parent incurs (including by assumption or guarantees) or repays (including by redemption, repayment, retirement or extinguishment) any Indebtedness included in the calculations of any financial ratio or test, (i) during the applicable Test Period or (ii) subject to Section 1.11(a) subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then such financial ratio or test shall be calculated giving pro forma effect to such incurrence or repayment of Indebtedness, to the extent required, as if the same had occurred on the last day of the applicable Test Period.
(e) Any provision requiring pro forma compliance with Section 7.11 shall be made assuming that compliance with the Consolidated Total Net Leverage Ratio pursuant to such Section is required with respect to the most recent Test Period prior to such time (it being understood that for purposes of determining Pro Forma Compliance with Section 7.11, if no Test Period with an applicable Consolidated Total Net Leverage Ratio cited in Section 7.11 has passed, the applicable Consolidated Total Net Leverage Ratio level shall be the level for the first Test Period cited in Section 7.11 with an indicated Consolidated Total Net Leverage Ratio level).
(f) [Reserved].
(g) In connection with any action being taken in connection with a Limited Condition Transaction, for purposes of:
(i) determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenant, (x) in the case calculation of any such compliance required after delivery of financial statements for ratio or test, including the fiscal quarter ending on or about June 30Consolidated Total Net Leverage Ratio, 2014, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Consolidated Secured Net Leverage Ratio permitted for or the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01, or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Consolidated Senior Secured Net Leverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of Ratio;
(ii) testing availability under baskets set forth in this Agreement (other than including baskets measured as a percentage of Consolidated EBITDA); or
(iii) determining compliance with representations, warranties, Defaults or Events of Default; in each case, at the provisions option of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance the Lead Borrower (the Lead Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless date of determination of whether the Lux Borrower any such action is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation permitted hereunder shall be deemed to accrue be the date the definitive agreement for such Limited Condition Transaction is entered into or irrevocable notice is given in respect of such transaction (or such later date as specified by the Lead Borrower in writing to the Administrative Agent from time to time) (the “LCT Test Date”), and if, after giving Pro Forma Effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith as if they had occurred at an interest rate reasonably determined by a responsible financial or accounting officer the beginning of the Borrower Representative most recent Test Period ending prior to be the rate LCT Test Date, the Parent or any of interest implicit the Restricted Subsidiaries would have been permitted to take such action on the relevant LCT Test Date in compliance with such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime ratio, test or similar ratebasket, a eurocurrency interbank offered ratesuch ratio, test or other rate, basket shall be deemed to have been based upon complied with for all purposes; provided that if financial statements for one or more subsequent fiscal periods shall have been delivered pursuant to this Agreement, the rate actually chosenLead Borrower may elect, orin its sole discretion, to redetermine all such ratios, tests or baskets on the basis of such financial statements, in which case such date or redetermination shall thereafter be deemed to be the applicable date the definitive agreements for such Limited Condition Transaction are entered into. For the avoidance of doubt, if nonethe Lead Borrower has made an LCT Election and any of the ratios, tests or baskets for which compliance was determined or tested as of the LCT Test Date would have failed to have been satisfied as a result of fluctuations in any such ratio, test or basket (including due to fluctuations of the target of any Limited Condition Transaction), including due to fluctuations in Consolidated EBITDA or Total Assets, at or prior to the consummation of the relevant transaction or action, such baskets, tests or ratios will not be deemed to have been exceeded or failed to have been satisfied as a result of such fluctuations. If the Lead Borrower has made an LCT Election for any Limited Condition Transaction, then based upon in connection with any event or transaction occurring after the relevant LCT Test Date and prior to the earlier of (i) the date on which such optional rate chosen Limited Condition Transaction is consummated or (ii) the date that the definitive agreement or date for redemption, repurchase, defeasance, satisfaction and discharge or repayment specified in an irrevocable notice for such Limited Condition Transaction is terminated, expires or passes, as the Borrower Representative may designate; and
applicable, without consummation of such Limited Condition Transaction (4a “Subsequent Transaction”) interest on any Indebtedness under in connection with which a revolving credit facility ratio, test or a Qualified Receivables Financing computed basket availability calculation must be made on a pro forma basis shall be computed based upon the average daily balance or giving pro forma effect to such Subsequent Transaction, for purposes of determining whether such Indebtedness during the applicable period; and
(5) to the extent not already covered aboveratio, test or basket availability has been complied with under this Agreement, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any ratio, test or basket shall be required to be satisfied on a pro forma calculation may includebasis assuming such Limited Condition Transaction and other transactions in connection therewith have been consummated; provided that, without limitation, (1) adjustments calculated in accordance solely with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect respect to any Pro Forma Cost Savings and (3) all adjustments described such ratio, test or basket calculated with respect to a Restricted Payment or payment on Schedule 1.01(a) to account of Indebtedness under any Junior Financing, the extent calculation of any such adjustmentsratio, without duplication, continue test or basket shall be required to be applicable to the Reference Period satisfied on a non-pro forma basis until such time as such Subsequent Transaction is actually consummated.
(as defined in h) For purposes of the definition of “Applicable ECF Percentage”, (i) the Consolidated Senior Secured Net Leverage Ratio shall be recalculated to give Pro Forma Basis”); provided that Effect to (A) if the Lead Borrower elects any deduction be made pursuant to the clauses (B)(1) through (4) of Section 2.05(b)(i) after the end of the relevant fiscal year and prior to the time such adjustments that consist Excess Cash Flow prepayment is due, any cash pay-downs or reductions made after the end of reductions in costs the relevant fiscal year and other operating improvements or synergies prior to the time the applicable Excess Cash Flow prepayment is due and (B) any repayments of the Loan to be made pursuant to Section 2.05(b)(i) utilizing such Excess Cash Flow and (ii) the Consolidated Senior Secured Net Leverage Ratio for the succeeding fiscal year shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “not give Pro Forma Cost SavingsEffect to such cash pay-downs or reductions.”
Appears in 1 contract
Samples: Credit Agreement (Redwire Corp)
Pro Forma Calculations. Notwithstanding anything to the contrary herein (subject to Section 1.02(j))contained herein, all calculations of the First Lien Net Leverage Ratio, the Total Net Consolidated Leverage Ratio and the Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 determining the Applicable Rate or compliance with any financial covenant set forth in Section 7.11) and 2.15) the Consolidated Fixed Charge Coverage Ratio, in each case, shall be made on a Pro Forma Basis with respect to each all Specified Transaction Transactions occurring during the applicable four quarter period Measurement Period to which such calculation relates, and/or subsequent to the end of such four-quarter period Measurement Period but not later than the date of such calculation; provided that provided, that, notwithstanding the foregoing, when calculating the First Lien Net Consolidated Leverage Ratio or the Consolidated Fixed Charge Coverage Ratio, in each case, for purposes of determining (i) determining the applicable percentage of Excess Cash Flow for purposes of compliance with Section 2.05(b)7.11, and/or (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenant, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four quarter period Measurement Period shall not be given Pro Forma Effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenantany financial covenant set forth in Section 7.11, (xA) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June April 30, 20142021, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Consolidated Leverage Ratio and/or the minimum Consolidated Fixed Charge Coverage Ratio, as applicable, permitted for the fiscal quarter of the Borrower most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01, 6.01(a) or (yb), as applicable, and (B) in the case of any such compliance required prior to the delivery referred to in clause (xA) above, such Pro Forma Compliance shall be determined by reference to (1) the Pro Forma Financial Statements, and (2) the maximum First Lien Net Consolidated Leverage Ratio and/or the minimum Consolidated Fixed Charge Coverage Ratio, as applicable, permitted for the fiscal quarter ending June April 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savings2021.”
Appears in 1 contract
Samples: Exhibit (AeroVironment Inc)
Pro Forma Calculations. Notwithstanding anything to the contrary herein (subject to Section 1.02(j)), the First Lien Net Leverage Ratio, the Total Net Leverage Ratio and the Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 and 2.15) on a Pro Forma Basis with respect to each Specified Transaction occurring during the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four-quarter period but not later than the date of such calculation; provided that notwithstanding the foregoing, when calculating the First Lien Net Leverage Ratio for purposes of (i) determining the applicable percentage of Excess Cash Flow for purposes of Section 2.05(b), (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenant, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four quarter period shall not be given Pro Forma Effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenant, (x) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01, or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any provision period of this Agreement four consecutive fiscal quarters during which any Permitted Acquisition or Significant Asset Sale occurs (other than the provisions and for purposes of determining whether an acquisition is a Permitted Acquisition under Section 6.02(a6.04(g) or Section 7.08) that requires compliance would result in a Default or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless an Event of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effectDefault), the interest on such Indebtedness Leverage Ratio shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable with respect to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed period on a pro forma basis shall be computed based upon the average daily balance after giving effect to such Permitted Acquisition or Significant Asset Sale (including, without duplication, (a) all pro forma adjustments permitted or required by Article 11 of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any Act of 1933, as amended, and (b) pro forma calculation may include, without limitation, adjustments for cost savings (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(anet of continuing associated expenses) to the extent such adjustmentscost savings are factually supportable, without duplication, continue are expected to have a continuing impact and have been realized or are reasonably expected to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”)realized within 12 months following such Permitted Acquisition or Significant Asset Sale; provided that any all such adjustments that consist of reductions in costs should be reasonably satisfactory to the Administrative Agent and other operating improvements or synergies shall be calculated set forth in accordance witha reasonably detailed certificate of a Financial Officer of Sun), using, for purposes of making such calculations, the historical financial statements of Sun and the Subsidiaries which shall be reformulated as if such Permitted Acquisition or Significant Asset Sale, and satisfy any other Permitted Acquisitions and Significant Asset Sales that have been consummated during the requirements specified inperiod, had been consummated on the first day of such period. If at any time prior to March 31, 2011, Sun shall be required to determine compliance or pro forma compliance with the covenants set forth in Section 6.11 or 6.12 (including for purposes of Section 6.01(h) or 6.04(g)), the definition of “Pro Forma Cost Savingsrequired covenant level used to test such compliance shall be the level corresponding to the period ended March 31, 2011.”
Appears in 1 contract
Pro Forma Calculations. (a) Notwithstanding anything to the contrary herein (subject to Section 1.02(j))herein, for purposes of determining compliance with any test or covenant contained in this Agreement, the Consolidated Total First Lien Net Leverage Ratio, the Total Net Leverage Debt to Consolidated EBITDA Ratio and the Fixed Charge Coverage Consolidated Total Net Debt to Consolidated EBITDA Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 and 2.152.17) on a Pro Forma Basis with respect to each Specified Transaction occurring during the applicable four eight quarter period to which such calculation relates, and/or subsequent to the end of such four-eight quarter period but not later than the date of such calculation; provided that notwithstanding the foregoing, when calculating the Consolidated Total First Lien Net Leverage Debt to Consolidated EBITDA Ratio and the Consolidated Total Net Debt to Consolidated EBITDA Ratio, as applicable, for purposes of (i) determining the applicable percentage of Excess Cash Flow for purposes of Section 2.05(b), ) and (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and but not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenantfinancial covenant set forth in Section 7.11, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four eight quarter period shall not be given Pro Forma Effect. .
(b) For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenantfinancial covenant set forth in Section 7.11 or calculation of the Consolidated Total First Lien Net Debt to Consolidated EBITDA Ratio or the Consolidated Total Net Debt to Consolidated EBITDA Ratio, (x) in the case of any such compliance Pro Forma Compliance required after delivery of financial statements for the fiscal quarter Fiscal Quarter ending on or about June March 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum Consolidated Total First Lien Net Leverage Debt to Consolidated EBITDA Ratio permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01Test Period, or (y) in the case of any such compliance Pro Forma Compliance or ratio calculation required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum Consolidated Total First Lien Net Leverage Debt to Consolidated EBITDA Ratio permitted for the fiscal quarter Fiscal Quarter ending June March 30, 2014. 2014 and, if no Section 6.01 Financials have been delivered to the Administrative Agent at such time, such compliance and ratio shall be calculated based on Consolidated EBITDA for the four consecutive fiscal quarters of the Borrower ended December 29, 2013.
(c) With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.087.11) that requires compliance or Pro Forma Compliance with the Financial Covenantfinancial covenant set forth in Section 7.11, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 7.11 at such time. .
(d) In connection with any Specified Transaction being taken in connection with a Limited Condition AcquisitionTransaction, for purposes of (x) determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the financial covenant set forth in Section 7.11 or calculation of the Consolidated Total Net Debt to Consolidated EBITDA Ratio or the Consolidated Total First Lien Net Debt to Consolidated EBITDA Ratio or (y) testing baskets set forth in Article VII of this Agreement (including baskets measured as a percentage of Consolidated Total Assets), the date of determination, incurrence or establishment, as applicable, shall, at the option of the Borrower, be the time the definitive agreements for such Limited Condition AcquisitionTransaction are entered into or irrevocable notice of redemption, repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness, Disqualified Equity Interests or preferred Equity Interests is given after giving effect to the Limited Condition AcquisitionTransaction and the other Specified Transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) as if they occurred at the beginning of the applicable Test Period, and, for the avoidance of doubt, if any of such baskets or ratios are exceeded as a result of fluctuations in such ratio or basket, including due to fluctuations in exchange rates or in Consolidated EBITDA or Consolidated Total Assets of the Borrower or the Person subject to such Limited Conditional Acquisition, at or prior to the consummation of the relevant transaction or action, such baskets or ratios will not be deemed not to have been exceeded as a result of such fluctuations; provided that if the Borrower has made such an election, in connection with the calculation of any ratio or basket availability with respect to the incurrence of Indebtedness or Liens, or the making of Investments, Restricted Payments, prepayments of Junior Financing, Dispositions, fundamental changes under Section 7.04 or the designation of an Unrestricted Subsidiary (but, for the avoidance of doubt, excluding, for purposes of calculating the financial covenant set forth in Section 7.11) on or following the date of such election and prior to the earlier of the date on which such Limited Condition AcquisitionTransaction is consummated or the definitive agreement for such Limited Condition AcquisitionTransaction is terminated, any such ratio or basket shall be calculated on a Pro Forma Basis assuming such Limited Condition AcquisitionsTransactions and other Specified Transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated, except to the extent that such calculation would result (x) in a lower Consolidated Total Net Debt to Consolidated EBITDA Ratio or Consolidated Total First Lien Net Debt to Consolidated EBITDA Ratio, as applicable, or (y) a larger basket than would apply if such calculation was made without giving Pro Forma Effect to such Limited Condition AcquisitionTransaction and the other Specified Transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof).
(e) For purposes of making calculating the principal amount of Indebtedness permitted to be incurred pursuant to (w) either Section 2.14(a) or Section 2.17(a), in each case, in reliance on clause (y) of the definition “the Ratio Incremental AmountFacility,” (x) Section 7.03(f), (y) Section 7.03(o) or (z) Section 7.03(v) in reliance of the ratio test in clause (B) of the proviso of the definition of Permitted Additional Debt (collectively, the “Ratio-Based Debt Baskets”), any computation referred pro forma calculation of the Consolidated Total Net Debt to above:
Consolidated EBITDA Ratio or the Consolidated Total First Lien Net Debt to Consolidated EBITDA Ratio, as applicable, shall be determined (x) without netting the proceeds thereof and (y) without giving effect to any other incurrence of Indebtedness on the date of determination pursuant to (1) if any Indebtedness bears a floating rate of interest and is being given pro forma effecteither Section 2.14(a) or Section 2.17(a), the interest on such Indebtedness shall be calculated as if the rate in effect each case in reliance on the date for which a determination under this definition is made had been Cash Capped Incremental Facility or the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
Voluntary Prepayment Incremental Facility or (2) interest on any clause or sub-clause of Section 7.03 other than a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer Ratio-Based Debt Basket.
(f) For purposes of calculating the Borrower Representative amount of Liens permitted to be the rate incurred pursuant to (x) (solely with respect to Indebtedness incurred pursuant to Section 2.14(a) in reliance of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
clause (3y) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”the Ratio Incremental Amount”Facility) Section 7.01(a); provided that any such adjustments that consist , (y) (solely with respect to Indebtedness incurred pursuant to Section 2.172.14(a) in reliance of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, clause (y) of the definition of “Pro Forma Cost Savingsthe Ratio Incremental Amount”Facility) Section 7.01(gg)(ii) or (z) Section 7.01(gg)(v) (collectively, the “Ratio-Based Lien Baskets”), any pro forma calculation of the Consolidated Total First Lien Net Debt to Consolidated EBITDA Ratio shall be determined without giving effect to any other incurrence of Liens on the date of determination pursuant to any clause or sub-clause of Section 7.01 other than a Ratio-Based Lien Basket.”
Appears in 1 contract
Samples: Credit Agreement (Tribune Media Co)
Pro Forma Calculations. (a) Notwithstanding anything to the contrary herein (subject to Section 1.02(j))herein, the First Lien Net Senior Secured Leverage Ratio, the Total Net Leverage Ratio and the Fixed Charge Interest Coverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 and 2.15) on a Pro Forma Basis with respect to each Specified Transaction occurring during in the applicable four quarter period to which such calculation relatesmanner prescribed by this Section 1.10; provided that, and/or subsequent notwithstanding anything to the end of such four-quarter period but not later than the date of such calculation; provided that notwithstanding the foregoingcontrary herein, when calculating any such ratio for the First Lien Net Leverage Ratio for purposes of (i) determining the applicable percentage of Excess Cash Flow for purposes of Section 2.05(b), (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenant, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions purpose of the definition of Consolidated EBITDAApplicable Rate, any mandatory prepayment provision hereunder or compliance with Section 7.07, the events set forth in clauses (b), (c) and (d) below that occurred subsequent to the end of the applicable four quarter period Test Period shall not be given Pro Forma Effect. pro forma effect.
(b) For purposes of determining compliance with any provision of this Agreement which requires calculating the Net Senior Secured Leverage Ratio, the Total Net Leverage Ratio and the Interest Coverage Ratio, Pro Forma Compliance Transactions (and the incurrence or repayment of any Indebtedness in connection therewith) that have been consummated (i) during the applicable period of four (4) consecutive Fiscal Quarters for which such financial ratio is being determined (the “Test Period”) or (ii) subsequent to such Test Period and prior to or simultaneously with the Financial Covenant, (x) in event for which the case calculation of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30ratio is made, 2014, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01, or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis assuming that all such Pro Forma Transactions (and any increase or decrease in Consolidated Adjusted EBITDA and the component financial definitions used therein attributable to any Pro Forma Transaction) had occurred on the first day of the applicable Test Period.
(c) Whenever pro forma effect is to be given to a Pro Forma Transaction, the pro forma calculations shall be computed based upon made in good faith by a financial or accounting Responsible Officer of the average daily balance Company and may include, for the avoidance of doubt, the amount of synergies and cost savings projected by the Company from actions taken or expected to be taken during the 12-month period following the date of such Indebtedness Pro Forma Transaction, net of the amount of actual benefits theretofore realized during such period from such actions; provided that (i) such amounts are reasonably identifiable, quantifiable and factually supportable in the applicable period; and
good faith judgment of the Company, (5ii) no amounts shall be added pursuant to this clause (c) to the extent not already covered aboveduplicative of any amounts that are otherwise added back in computing Consolidated Adjusted EBITDA, whether through a pro forma adjustment or otherwise, with respect to such period and (iii) the aggregate amount of cost savings and synergies added pursuant to this clause (c) for any such calculation may include adjustments period, together with any addback to Consolidated Adjusted EBITDA pursuant to paragraph (f) thereof, during any such period, shall not exceed 15% of Consolidated Adjusted EBITDA for such period, calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give giving effect to any Pro Forma Cost Savings adjustment pursuant to this clause (c) or paragraph (f) of the definition of Consolidated Adjusted EBITDA. Nothing in this clause (c) shall limit any adjustment to Consolidated Adjusted EBITDA permitted pursuant to clause (y) of the proviso to paragraph (f) of the definition of Consolidated Adjusted EBITDA.
(d) In the event that the Company or any Subsidiary incurs (including by assumption or guarantees) or repays (including by redemption, repayment, retirement or extinguishment) any Indebtedness included in the calculations of the Net Senior Secured Leverage Ratio or the Total Net Leverage Ratio (other than Indebtedness incurred or repaid under any revolving credit facility in the ordinary course of business for working capital purposes), subsequent to the end of the applicable Test Period and (3) all adjustments described on Schedule 1.01(a) prior to or simultaneously with the event for which the calculation of any such ratio is made, then the Net Senior Secured Leverage Ratio or the Total Net Leverage Ratio, as applicable, shall be calculated giving pro forma effect to such incurrence or repayment of Indebtedness, to the extent such adjustmentsrequired, without duplication, continue to be as if the same had occurred on the last day of the applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost SavingsTest Period.”
Appears in 1 contract
Pro Forma Calculations. Notwithstanding anything All calculations permitted or required to the contrary herein (subject to Section 1.02(j)), the First Lien Net Leverage Ratio, the Total Net Leverage Ratio and the Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 and 2.15) made on a Pro Forma Basis with respect by Holdings, the Borrower or any Subsidiary pursuant to each Specified Transaction occurring during the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four-quarter period but not later than the date of such calculation; provided that notwithstanding the foregoing, when calculating the First Lien Net Leverage Ratio for purposes of (i) determining the applicable percentage of Excess Cash Flow for purposes of Section 2.05(b), (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenant, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four quarter period shall not be given Pro Forma Effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenant, shall include only those adjustments that (xa) in the case of any such compliance would be permitted or required after delivery of financial statements for the fiscal quarter ending on or about June 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01, or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities ActAct of 1933, as amended, or (b) have been certified by a Financial Officer of the Borrower as having been prepared in good faith based upon reasonable assumptions, which assumptions are written in a reasonably detailed manner and are reasonably acceptable to the Administrative Agent. Any pro forma calculation may includeNotwithstanding anything to the contrary herein, without limitation, (1) adjustments calculated for purposes of determining compliance with any test or covenant contained in accordance this Agreement with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect respect to any Pro Forma Cost Savings period during which any Specified Transaction occurs, the Total Net Leverage Ratio, the Total Secured Leverage Ratio, the Interest Coverage Ratio and (3the ratio set forth in Section 2.22(c) all adjustments described shall be calculated with respect to such period and such Specified Transaction on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “a Pro Forma Basis”); provided that . For the avoidance of doubt, (i) in the case of any test other than compliance with the Financial Covenants and the Total Net Leverage Ratio used in determining the applicable Excess Cash Flow Percentage, such adjustments that consist of reductions in costs and other operating improvements or synergies test shall be calculated in accordance withon a Pro Forma Basis taking into account all Specified Transactions that have occurred from the beginning of the most recently completed Calculation Period through the date of such test, and satisfy (ii) in the requirements specified incase of the Financial Covenants and the Total Net Leverage Ratio used in determining the applicable Excess Cash Flow Percentage, the definition of “such test shall be calculated on a Pro Forma Cost SavingsBasis taking into account all Specified Transactions that have occurred during the applicable Calculation Period. Any reference to compliance on a Pro Forma Basis with the Financial Covenants as of any date prior to the last day of the initial Calculation Period with respect to which the Financial Covenants are applicable shall refer to the covenant levels applicable for the first period specified in Sections 6.10 and 6.11, as applicable.”
Appears in 1 contract
Samples: Credit Agreement (Sportsman's Warehouse Holdings, Inc.)
Pro Forma Calculations. (a) Notwithstanding anything to the contrary herein (subject to Section 1.02(j))herein, financial ratios and tests, including the First Lien Consolidated Total Net Leverage Ratio, the Total Net Leverage Consolidated Interest Coverage Ratio and the Fixed Charge Coverage Ratio and Consolidated Senior Secured Net Tangible Assets Leverage Ratio, shall be calculated (including for purposes of Sections 2.14 and 2.15) on a Pro Forma Basis with respect to each Specified Transaction occurring during in the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four-quarter period but not later than the date of such calculationmanner prescribed by this Section 1.09; provided that notwithstanding anything to the foregoingcontrary in Section 1.09(b), (c) or (d), when calculating the First Lien Consolidated Senior Secured Net Leverage Ratio, the Consolidated Interest Coverage Ratio or the Consolidated Total Net Leverage Ratio, as applicable, for purposes of (i) determining the applicable percentage definition of Excess Cash Flow for purposes of Section 2.05(b), “Applicable Rate” and (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with any covenant pursuant to Section 7.11 or Section 7.12, the Financial Covenant, any Specified Transaction and any related adjustment contemplated events described in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) this Section 1.09 that occurred subsequent to the end of the applicable four quarter period Test Period shall not be given Pro Forma Effectpro forma effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with In addition, whenever a financial ratio or test is to be calculated on a pro forma basis, the Financial Covenant, (x) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted “Test Period” for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01, or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on calculating such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation financial ratio or test shall be deemed to accrue at an interest rate reasonably be a reference to, and shall be based on, the most recently ended Test Period for which internal financial statements of the Borrower are available (as determined in good faith by the Borrower); provided that the provisions of this sentence shall not apply for purposes of calculating the Consolidated Senior Secured Net Leverage Ratio, Consolidated Total Net Leverage Ratio or Consolidated Interest Coverage Ratio for purposes of the definition of “Applicable Rate” and determining actual compliance with Section 7.11 or Section 7.12 (other than for the purpose of determining pro forma compliance with Section 7.11 or Section 7.12), each of which shall be based on the financial statements delivered pursuant to Section 6.01(a) or (b), as applicable, for the relevant Test Period.
(b) For purposes of calculating any financial ratio or test (including, for the avoidance of doubt, any test that includes a calculation of “Consolidated EBITDA”), or basket that is based on a percentage of Consolidated Total Assets, Specified Transactions (with any incurrence or repayment of any Indebtedness in connection therewith to be subject to Section 1.09(d)) that have been made (i) during the applicable Test Period and (ii) if applicable as described in Section 1.09(a), subsequent to such Test Period and prior to or simultaneously with the event for which the calculation of any such ratio or test is made shall be calculated on a pro forma basis assuming that all such Specified Transactions (and any increase or decrease in Consolidated EBITDA and the component financial definitions used therein attributable to any Specified Transaction) had occurred on the first day of the applicable Test Period. If since the beginning of any applicable Test Period any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Borrower or any of its Restricted Subsidiaries since the beginning of such Test Period shall have made any Specified Transaction that would have required adjustment pursuant to this Section 1.09, then such financial ratio or test shall be calculated to give pro forma effect thereto in accordance with this Section 1.09.
(c) Whenever pro forma effect is to be given to a Specified Transaction, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Borrower Representative and include, for the avoidance of doubt, the amount of “run-rate” cost savings, operating expense reductions and synergies projected by the Borrower in good faith to be realized as a result of specified actions taken (calculated on a pro forma basis as though such cost savings, operating expense reductions and synergies had been realized on the first day of such period and as if such cost savings, operating expense reductions, operating initiatives, operating changes and synergies were realized during the entirety of such period) and “run-rate” means the full recurring benefit for a period that is associated with any action taken (including any savings expected to result from the elimination of a public target’s compliance costs with public company requirements) net of the amount of actual benefits realized during such period from such actions, and any such adjustments shall be included in the initial pro forma calculations of such financial ratios or tests and during any subsequent Test Period in which the effects thereof are expected to be realized relating to such Specified Transaction; provided that (A) such amounts, in the case of Specified Transactions (other than the purchase or commencement of construction of, or the award or execution of a contract for, new concession locations at airports or the commencement of major or substantial remodeling of existing concession locations at airports) shall be subject to the proviso set forth in clause (a)(vii) of the definition of “Consolidated EBITDA”, (B) such amounts, in the case of the purchase or commencement of construction of, or the award or execution of a contract for, new concession locations at airports or the commencement of major or substantial remodeling of existing concession locations at airports) shall be subject to the proviso set forth in clause (a)(viii) of the definition of “Consolidated EBITDA”, and (C) no amounts shall be added pursuant to this Section 1.09(c) to the extent duplicative of any amounts that are otherwise added back in computing Consolidated EBITDA, whether through a pro forma adjustment or otherwise, with respect to such period.
(d) In the event that the Borrower or any Restricted Subsidiary incurs (including by assumption or guarantees) or repays (including by redemption, repayment, retirement or extinguishment) any Indebtedness included in the calculations of any financial ratio or test (in each case, other than Indebtedness incurred or repaid under any revolving credit facility), (i) during the applicable Test Period or (ii) subject to Section 1.09(a) subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then such financial ratio or test shall be calculated giving pro forma effect to such incurrence or repayment of Indebtedness, to the extent required, as if the same had occurred on the last day of the applicable Test Period.
(e) At any time prior to the first applicable test date under Section 7.11 or Section 7.12, any provision requiring the pro forma compliance with Section 7.11 or Section 7.12 shall be made assuming that compliance with the Consolidated Total Net Leverage Ratio and Consolidated Interest Coverage Ratio set forth in Section 7.11 or Section 7.12 for the first Test Period set forth in Section 7.11 or Section 7.12 is required with respect to the most recent Test Period prior to such time.
(f) Notwithstanding anything in this Agreement or any Loan Document to the contrary, when calculating the Consolidated Senior Secured Net Leverage Ratio, the Consolidated Interest Coverage Ratio or the Consolidated Total Net Leverage Ratio, as applicable, testing availability under any basket or ratio (including baskets measured as a percentage of Consolidated Total Assets) provided for in this Agreement or determining other compliance with this Agreement (including the determination of compliance with any provision of this Agreement which requires that no Default or Event of Default has occurred, is continuing or would result therefrom or requiring the accuracy of representations and warranties) in connection with a Specified Transaction (other than a Specified Transaction described in clause (v) or (vi) in the definition thereof) undertaken in connection with the consummation of a Limited Condition Acquisition, the date of determination of such basket, ratio and determination of whether any Default or Event of Default has occurred, is continuing or would result therefrom or other applicable covenant or accuracy of representations and warranties shall, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Acquisition, an “LCA Election”), be deemed to be the rate date the definitive agreements for such Limited Condition Acquisition are entered into (the “LCA Test Date”) and if, after such basket, ratios and other provisions are measured or determined on a Pro Forma Basis after giving effect to such Limited Condition Acquisition and the other Specified Transactions (other than a Specified Transaction described in clause (v) or (vi) in the definition thereof) to be entered into in connection therewith (including any incurrence of interest implicit Indebtedness and the use of proceeds thereof) as if they occurred at the beginning of the four consecutive fiscal quarter period being used to calculate such financial ratio ending prior to the LCA Test Date, the Borrower could have taken such action on the relevant LCA Test Date in compliance with such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar ratebasket, a eurocurrency interbank offered rateratios and provisions, or other ratesuch baskets, ratios and provisions shall be deemed to have been based upon complied with on such date. For the rate actually chosenavoidance of doubt, or(x) if any of such ratios or baskets are exceeded as a result of fluctuations in such ratio or basket (including due to fluctuations in Consolidated EBITDA of the Borrower or the target of any Limited Condition Acquisition (other than as a result of any incurrence, if nonedisposition or Restricted Payment) at or prior to the consummation of the relevant Limited Condition Acquisition, such ratios, baskets and other provisions will not be deemed to have been exceeded as a result of such fluctuations solely for purposes of determining whether the Limited Condition Acquisition is permitted hereunder and (y) such ratios, baskets and other provisions shall not be tested at the time of consummation of such Limited Condition Acquisition or related Specified Transactions. If the Borrower has made an LCA Election for any Limited Condition Acquisition, then based upon in connection with any subsequent calculation of any ratio (excluding, for the avoidance of doubt, any ratio contained in Section 7.11) or Section 7.12 or basket availability with respect to any other Specified Transaction on or following the relevant LCA Test Date and prior to the earlier of the date on which such optional rate chosen as Limited Condition Acquisition is consummated or the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility date that the definitive agreement for such Limited Condition Acquisition is terminated or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance expires without consummation of such Indebtedness during the applicable period; and
(5) to the extent not already covered aboveLimited Condition Acquisition, any such calculation may include adjustments ratio or basket shall be (x) calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1and tested) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any on a Pro Forma Cost Savings 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 and (3y) all adjustments described also calculated (and tested) on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “a Pro Forma Basis”)Basis assuming such Limited Condition Acquisition and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have not been consummated; provided that (other than solely with respect to the incurrence test under which such Limited Condition Acquisition is being made and the test set forth in the immediately preceding clause (x)) Consolidated EBITDA, assets and Consolidated Net Income of any target of such adjustments that consist Limited Condition Acquisition can only be used in the determination of reductions in costs the relevant ratio and other operating improvements or synergies shall be calculated in accordance with, baskets if and satisfy the requirements specified in, the definition of “Pro Forma Cost Savingswhen such Limited Condition Acquisition has closed.”
Appears in 1 contract
Samples: Credit Agreement (OTG EXP, Inc.)
Pro Forma Calculations. (a) Notwithstanding anything to the contrary herein (subject to Section 1.02(j))herein, financial ratios and tests, including the First Lien Consolidated Total Net Leverage Ratio, the Total Consolidated Secured Net Leverage Ratio and the Fixed Charge Coverage Consolidated Senior Secured Net Leverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 and 2.15) on a Pro Forma Basis with respect to each Specified Transaction occurring during in the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four-quarter period but not later than the date of such calculationmanner prescribed by this Section 1.11; provided that notwithstanding anything to the foregoingcontrary in this Section 1.11, when calculating the First Lien Consolidated Total Net Leverage Ratio for purposes of (i) determining the applicable percentage definition of Excess Cash Flow for purposes of Section 2.05(b), “Applicable ECF Percentage,” (ii) the definition of “Applicable RateAsset Sale Percentage”, and (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with any covenant pursuant to Section 7.11, in each case, the Financial Covenant, any Specified Transaction and any related adjustment contemplated events described in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) this Section 1.11 that occurred subsequent to the end of the applicable four quarter period Test Period shall not be given Pro Forma Effectpro forma effect. In addition, whenever a financial ratio or test is to be calculated on a pro forma basis, the reference to the “Test Period” for purposes of calculating such financial ratio or test shall be deemed to be a reference to, and shall be based on, the most recently ended Test Period for which financial statements of the Parent are available (as determined in good faith by the Lead Borrower); provided that, the provisions of this sentence shall not apply for purposes of calculating the Consolidated Senior Secured Net Leverage Ratio for purposes of the definition of “Applicable ECF Percentage”, the definition of “Applicable Asset Sale Percentage”, or determining actual compliance with Section 7.11 (other than for the purpose of determining pro forma compliance with Section 7.11), each of which shall be based on the financial statements delivered pursuant to Sections 6.01(a) or (b), as applicable, for the relevant Test Period.
(b) For purposes of calculating any financial ratio or test or basket that is based on a 81
(c) Whenever pro forma effect is to be given to the Transactions, a Specified Transaction, the implementation of an operational initiative or operational change, the pro forma calculations (i) shall be made in good faith by a Responsible Officer of the Lead Borrower and (ii) may include, for the avoidance of doubt, the amount of “run-rate” cost savings, operating expense reductions, other operating improvements and cost synergies resulting from, or relating to, such initiative or change, such Transaction or such Specified Transaction projected by the Lead Borrower in good faith to be realizable as a result of actions taken or expected to be taken (calculated on a pro forma basis as though such cost savings, operating expense reductions, other operating improvements and cost synergies had been realized on the first day of such period as if such cost savings, operating expense reductions, other operating improvements and cost synergies were realized during the entirety of such period and such that “run-rate” means the full recurring projected benefit for a period that is associated with any action taken or expected to be taken (including any savings or other benefits expected to result from the elimination of a public target’s compliance costs with public company requirements) net of the amount of actual benefits realized during such period from such actions), and any such adjustments shall be included in the initial pro forma calculation of such financial ratios or tests or basket that is based on a percentage of Consolidated EBITDA relating to such initiative or change, such Transaction or such Specified Transaction (and in respect of any subsequent pro forma calculation in which such initiative or change, such Transaction or such Specified Transaction is given pro forma effect) and during any applicable subsequent Test Period in which the effects thereof are expected to be realizable, relating to such initiative or change, such Transaction or such Specified Transaction; provided that (x) a duly completed certificate signed by a Responsible Officer of the Lead Borrower shall be delivered to the Administrative Agent together with the Compliance Certificate required to be delivered pursuant to Section 6.02, certifying that such cost savings, operating expense reductions, other operating improvements and/or cost synergies are readily identifiable, factually supportable and have been determined in good faith by the Lead Borrower to be reasonably anticipated to be realizable in the good faith judgment of the Lead Borrower, within twenty-four (24) months after the consummation of such initiative or change (or, with respect to the Transactions, within 24 months after the consummation of the Transactions), such Transaction or such Specified Transaction, which is expected to result in such cost savings, operating expense reductions, other operating improvements or cost synergies and (y) no cost savings, operating expense reductions, other operating improvements or cost synergies shall be added pursuant to clause (ii) above to the extent duplicative of any expenses or charges otherwise added to Consolidated EBITDA (or any component thereof) , whether through a pro forma adjustment or otherwise, for such period; provided, further, that all amounts added back to Consolidated EBITDA pursuant to clause (ii) above, together with all amounts added back to Consolidated EBITDA pursuant to clauses (a)(iv) and (a)(vii) in the definition thereof, shall not exceed, in the aggregate 25% of Consolidated EBITDA (calculated after giving effect to such amounts that would be added back pursuant to such clause (ii) and clause (a)(vii)(B) 82
(d) In the event that any Borrower or any other Restricted Subsidiary of the Parent incurs (including by assumption or guarantees) or repays (including by redemption, repayment, retirement or extinguishment) any Indebtedness included in the calculations of any financial ratio or test, (i) during the applicable Test Period or (ii) subject to Section 1.11(a) subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then such financial ratio or test shall be calculated giving pro forma effect to such incurrence or repayment of Indebtedness, to the extent required, as if the same had occurred on the last day of the applicable Test Period.
(e) Any provision requiring pro forma compliance with Section 7.11 shall be made assuming that compliance with the Consolidated Total Net Leverage Ratio pursuant to such Section is required with respect to the most recent Test Period prior to such time (it being understood that for purposes of determining Pro Forma Compliance with Section 7.11, if no Test Period with an applicable Consolidated Total Net Leverage Ratio cited in Section 7.11 has passed, the applicable Consolidated Total Net Leverage Ratio level shall be the level for the first Test Period cited in Section 7.11 with an indicated Consolidated Total Net Leverage Ratio level).
(f) [Reserved].
(g) In connection with any action being taken in connection with a Limited Condition Transaction, for purposes of: (i) determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenant, (x) in the case calculation of any such compliance required after delivery of financial statements for ratio or test, including the fiscal quarter ending on or about June 30Consolidated Total Net Leverage Ratio, 2014, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Consolidated Secured Net Leverage Ratio permitted for or the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01, or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Consolidated Senior Secured Net Leverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of Ratio; (ii) testing availability under baskets set forth in this Agreement (including baskets measured as a percentage of Consolidated EBITDA); or (iii) determining compliance with representations, warranties, Defaults or Events of Default (other than the provisions for purposes of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance 4.02); in each case, at the option of the Lead Borrower (the Lead Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless date of determination of whether the Lux Borrower any such action is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation permitted hereunder shall be deemed to accrue be the date the definitive agreement for such Limited Condition Transaction is entered into or irrevocable notice is given in respect of such transaction (or such later date as specified by the Lead Borrower in writing to the Administrative Agent from time to time) (the “LCT Test Date”), and if, after giving Pro Forma Effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith as if they had occurred at an interest rate reasonably determined by a responsible financial or accounting officer the beginning of the Borrower Representative most recent Test Period ending prior to be the rate LCT Test Date, the Parent or any of interest implicit the Restricted Subsidiaries would have been permitted to take such action on the relevant LCT Test Date in compliance with such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime ratio, test or similar ratebasket, a eurocurrency interbank offered ratesuch ratio, test or other rate, basket shall be deemed to have been based upon complied with for all purposes; provided that if financial statements for one or more subsequent fiscal periods shall have been delivered pursuant to this Agreement, the rate actually chosenLead Borrower may elect, orin its sole discretion, to redetermine all such ratios, tests or baskets on the basis of such financial statements, in which case such date or redetermination shall thereafter be deemed to be the applicable date the definitive agreements for such Limited Condition Transaction are entered into. For the avoidance of doubt, if nonethe Lead Borrower has made an LCT Election and any of the ratios, then based upon such optional rate chosen tests or baskets for which compliance was determined or tested as of the Borrower Representative may designate; andLCT Test Date would have failed to 83
(4h) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance For purposes of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Applicable ECF Percentage”, (i) the Consolidated Senior Secured Net Leverage Ratio shall be recalculated to give Pro Forma Basis”); provided that Effect to (A) if the Lead Borrower elects any deduction be made pursuant to the clauses (B)(1) through (4) of Section 2.05(b)(i) after the end of the relevant fiscal year and prior to the time such adjustments that consist Excess Cash Flow prepayment is due, any cash pay-downs or reductions made after the end of reductions in costs the relevant fiscal year and other operating improvements or synergies prior to the time the applicable Excess Cash Flow prepayment is due and (B) any repayments of the Loan to be made pursuant to Section 2.05(b)(i) utilizing such Excess Cash Flow and (ii) the Consolidated Senior Secured Net Leverage Ratio for the succeeding fiscal year shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “not give Pro Forma Cost SavingsEffect to such cash pay-downs or reductions.”
Appears in 1 contract
Samples: Credit Agreement (Redwire Corp)
Pro Forma Calculations. (a) Notwithstanding anything to the contrary herein (subject to Section 1.02(j))herein, financial ratios and tests, including the First Lien Consolidated Total Net Leverage Ratio, the Consolidated Total Secured Net Leverage Ratio and the Fixed Charge Coverage Consolidated First Lien Net Leverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 and 2.15) on a Pro Forma Basis with respect to each Specified Transaction occurring during in the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four-quarter period but not later than the date of such calculationmanner prescribed by this Section 1.09; provided that notwithstanding anything to the foregoingcontrary in Section 1.09(b), (c) or (d), when (x) calculating the Consolidated First Lien Net Leverage Ratio for purposes of (i) determining the applicable percentage definition of Excess Cash Flow for purposes of Section 2.05(b), “Applicable Rate,” and (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual quarterly compliance with the financial covenant pursuant to Section 7.11 (and not Pro Forma Compliance or compliance on a Pro Forma BasisBasis for purposes of testing the permissibility of a transaction hereunder) with and (y) calculating the Financial Covenant, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions Consolidated First Lien Net Leverage Ratio for purposes of the definition of Consolidated EBITDA) “Applicable ECF Percentage”, the events described in this Section 1.09 that occurred subsequent to the end of the applicable four quarter period Test Period shall not be given Pro Forma Effectpro forma effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with In addition, whenever a financial ratio or test is to be calculated on a pro forma basis, the Financial Covenant, (x) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum “Test Period” for purposes of calculating such financial ratio or test shall be deemed to be a reference to, and shall be based on, the most recently ended Test Period for which internal financial statements of Holdings are available (as determined in good faith by the Borrower); provided that, the provisions of this sentence shall not apply for purposes of calculating the Consolidated First Lien Net Leverage Ratio permitted or the Consolidated Total Net Leverage Ratio for purposes of the definition of “Applicable Rate,” the definition of “Applicable ECF Percentage” and determining actual quarterly compliance with Section 7.11 (and not compliance on a Pro Forma Basis for purposes of testing the permissibility of a transaction hereunder), as applicable, each of which shall be based on the financial statements delivered pursuant to Section 6.01(a) or (b), as applicable, for the fiscal quarter most recently then ended relevant Test Period.
(b) For purposes of calculating any financial ratio or test, Specified Transactions (with any incurrence or repayment of any Indebtedness in connection therewith to be subject to Section 1.09(d)) that have been made (i) during the applicable Test Period and (ii) if applicable as described in Section 1.09(a), subsequent to such Test Period and prior to or simultaneously with the event for which the calculation of any such ratio or test is made shall be calculated on a pro forma basis assuming that all such Specified Transactions (and any increase or decrease in Consolidated EBITDA and the component financial statements definitions used therein attributable to any Specified Transaction) had occurred on the first day (or, in case of the determination of Total Assets, the last day) of the applicable Test Period. If since the beginning of any applicable Test Period any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Borrower or any of its Restricted Subsidiaries since the beginning of such Test Period shall have been delivered made any Specified Transaction that would have required adjustment pursuant to this Section 1.09, then such financial ratio or test (or were required Total Assets) shall be calculated to have been delivered) give pro forma effect thereto in accordance with this Section 6.011.09.
(c) Whenever pro forma effect is to be given to a Specified Transaction, or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance pro forma calculations shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate made in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined good faith by a responsible financial or accounting officer of the Borrower Representative and include, for the avoidance of doubt, the amount of “run-rate” cost savings, operating expense reductions and synergies projected by the Borrower in good faith to be the rate realized as a result of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
specified actions taken or expected to be taken (3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed calculated on a pro forma basis as though such cost savings, operating expense reductions and synergies had been realized on the first day of such period and as if such cost savings, operating expense reductions and synergies were realized during the entirety of such period) and “run-rate” means the full recurring benefit for a period that is associated with any action taken, committed to be taken or expected to be taken (including any savings expected to result from the elimination of a public target’s compliance costs with public company requirements) net of the amount of actual benefits realized during such period from such actions, and any such adjustments shall be computed based upon included in the average daily balance initial pro forma calculations of such Indebtedness financial ratios or tests and during any subsequent Test Period in which the applicable periodeffects thereof are expected to be realized relating to such Specified Transaction; and
provided that such amounts are (5A) reasonably supportable and quantifiable in the good faith judgment of the Borrower, (B) reasonably anticipated to be realized not later than twenty-four (24) months after the date of such Specified Transaction, and (C) no amounts shall be added pursuant to this Section 1.09(c) to the extent not already covered aboveduplicative of any amounts that are otherwise added back in computing Consolidated EBITDA, whether through a pro forma adjustment or otherwise, with respect to such period.
(d) In the event that the Borrower or any Restricted Subsidiary incurs (including by assumption or guarantees) or repays (including by redemption, repayment, retirement or extinguishment) any Indebtedness included in the calculations of any financial ratio or test (in each case, other than Indebtedness incurred or repaid under any revolving credit facility), (i) during the applicable Test Period or (ii) subject to Section 1.09(a) subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such calculation may include adjustments ratio is made, then such financial ratio or test shall be calculated in accordance with Regulation S-X under the Securities Act. Any giving pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) such incurrence or repayment of Indebtedness, to the extent such adjustmentsrequired, without duplicationas if the same had occurred on the last day of the applicable Test Period.
(e) At any time prior to June 30, continue to 2014, any provision requiring the compliance with Section 7.11 on a Pro Forma Basis shall be applicable made assuming that compliance with the Consolidated First Lien Net Leverage Ratio set forth in Section 7.11 for the Test Period ending on June 30, 2014 is required with respect to the Reference most recent Test Period (as defined in the definition of “Pro Forma Basis”); provided that any prior to such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savingstime.”
Appears in 1 contract
Samples: First Lien Credit Agreement (Jason Industries, Inc.)
Pro Forma Calculations. (a) Notwithstanding anything to the contrary herein (subject to Section 1.02(j))herein, for purposes of this Agreement and the other Loan Documents, the First Lien Net Leverage Ratio, the Secured Net Leverage Ratio, the Total Net Leverage Ratio and the Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets EBITDA shall be calculated (including including, but not limited to, for purposes of Sections 2.14 and 2.15Section 2.14) on a Pro Forma Basis with respect to each Specified Transaction occurring during the applicable four quarter period to which such calculation relates, and/or or subsequent to the end of such four-quarter period but not later than the date of such calculation; provided that notwithstanding the foregoing, when calculating the First Lien Net Leverage Ratio and the Secured Net Leverage Ratio, as applicable, for purposes of determining (ia) determining the applicable percentage of Excess Cash Flow for purposes of set forth in Section 2.05(b)2.05, (iib) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenantmaximum First Lien Net Leverage Ratio pursuant to Section 7.11 and (c) the Applicable Rate and the Revolving Commitment Fee Percentage, any Specified Transaction and any related adjustment contemplated the events described in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four quarter period shall not be given Pro Forma Effect. For purposes of determining compliance .
(b) Notwithstanding anything to the contrary herein, in connection with any provision of this Agreement which requires Pro Forma Compliance action required to be taken in connection with a Limited Condition Transaction, for purposes of:
(i) calculating the Financial Covenant, (x) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for Ratio, the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01, or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Secured Net Leverage Ratio permitted or the Total Net Leverage Ratio and other financial calculations (including, but not limited to, for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions purposes of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months2.14);
(2ii) interest on determining compliance with representations, warranties, Defaults or Events of Default; or
(iii) testing availability under covenant baskets set forth in this Agreement (including covenant baskets measured as a Capitalized Lease Obligation percentage of Consolidated EBITDA); in each case, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), the date of determination shall be deemed to accrue at an interest rate reasonably determined by a responsible financial be the date the definitive agreement for such Limited Condition Transaction is entered into (the “LCT Test Date”), and if, after giving Pro Forma Effect to the Limited Condition Transaction and the other transactions required to be entered into in connection therewith (including any incurrence or accounting officer repayment of Indebtedness and the use of proceeds thereof) as of the LCT Test Date, the Borrower Representative would have been permitted to be take such action on the rate of interest implicit relevant LCT Test Date in compliance with such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime ratio, test or similar ratebasket, a eurocurrency interbank offered ratesuch ratio, test or other rate, basket shall be deemed to have been based upon complied with; provided that availability under any ratio and the rate actually chosendetermination of whether the relevant condition is satisfied calculated on the applicable LCT Test Date may in any event be recalculated, orat the option of the Borrower, on the closing date of the Limited Condition Transaction. For the avoidance of doubt, if nonethe Borrower has made an LCT Election and any of the ratios, tests or baskets for which compliance was determined or tested as of the LCT Test Date are exceeded as a result of fluctuations in any such ratio, test or basket, including due to fluctuations in Consolidated EBITDA of the Borrower or the Person subject to such Limited Condition Transaction, at or prior to the consummation of the relevant transaction or action, such baskets, tests or ratios will not be deemed to have been exceeded as a result of such fluctuations. If the Borrower has made an LCT Election for any Limited Condition Transaction, then based upon in connection with any calculation of any ratio, test or basket availability with respect to any transaction required to be entered into in connection with such optional rate chosen as Limited Condition Transaction following the Borrower Representative may designate; and
(4) interest relevant LCT Test Date and prior to the earlier of the date on any Indebtedness under a revolving credit facility which such Limited Condition Transaction is consummated or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance date that the definitive agreement for such Limited Condition Transaction is terminated or expires without consummation of such Indebtedness during the applicable period; and
(5) to the extent not already covered aboveLimited Condition Transaction, for purposes of determining whether any such required transaction is permitted under this Agreement, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may includeratio, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements test or synergies basket shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and such other required transaction (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated. If the Borrower has made an LCT Election for any Limited Condition Transaction, then in accordance withconnection with any calculation of any other ratio, and satisfy test or basket availability with respect to the requirements specified inincurrence of Indebtedness or Liens, the definition making of Restricted Payments, the making of any permitted Investment, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of the Lead Borrower, the prepayment, redemption, purchase, defeasance or other satisfaction of Indebtedness, or the designation of an Unrestricted Subsidiary, in each case, not required to be entered into in connection with the applicable Limited Condition Transaction (a “Subsequent Transaction”) following the relevant LCT Test Date and prior to the earlier of (x) the date on which such Limited Condition Transaction is consummated or (y) the date that the definitive agreement for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction (or the date on which the Lead Borrower demonstrates to the Administrative Agent that it has elected not to pursue such Limited Condition Transaction), for purposes of determining whether such Subsequent Transaction is permitted under this Agreement, any such ratio, test or basket shall be required to be satisfied on a Pro Forma Cost SavingsBasis assuming such Limited Condition Transaction and other transactions required to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated.”
Appears in 1 contract
Pro Forma Calculations. (a) Notwithstanding anything to the contrary herein (subject to Section 1.02(j))herein, for purposes of determining compliance with any test contained in this Agreement, the Consolidated Total Net Leverage Ratio, the Consolidated First Lien Net Leverage Ratio, the Total Consolidated Senior Secured Net Leverage Ratio and the Fixed Charge Ratio, Interest Coverage Ratio Ratio, and Consolidated Net Tangible EBITDA and Total Assets shall be calculated (including for purposes of Sections 2.14 and 2.15) on a Pro Forma Basis with respect pro forma basis to each give effect to all Specified Transaction occurring Transactions that have been made during the applicable four quarter period to which such calculation relates, and/or of measurement or subsequent to such period and prior to or simultaneously with the end of such four-quarter period but not later than event for which the date of such calculationcalculation is made in the manner prescribed by this Section 1.09; provided that notwithstanding anything to the foregoingcontrary in Section 1.09(b), (c) or (d), when calculating the Consolidated First Lien Net Leverage Ratio for purposes of (i) determining the applicable percentage definition of Excess Cash Flow for purposes of Section 2.05(b), “Applicable Rate” and (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with any covenant pursuant to Section 7.11, the Financial Covenant, any Specified Transaction and any related adjustment contemplated events described in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) this Section 1.09 that occurred subsequent to the end of the applicable four quarter period Test Period shall not be given Pro Forma Effectpro forma effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with In addition, whenever a financial ratio or test is to be calculated on a pro forma basis, the Financial Covenant, (x) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum “Test Period” for purposes of calculating such financial ratio or test shall be deemed to be a reference to, and shall be based on, the most recently ended Test Period for which internal financial statements of the Borrower are available (as determined in good faith by the Borrower); provided that the provisions of this sentence shall not apply for purposes of calculating the Consolidated First Lien Net Leverage Ratio permitted or the Consolidated Total Net Leverage Ratio for purposes of the definition of “Applicable Rate” and determining actual compliance with Section 7.11 (other than for the fiscal quarter most recently then ended for purpose of determining pro forma compliance with Section 7.11), as applicable, each of which shall be based on the financial statements have been delivered (or were required pursuant to have been deliveredSection 6.01(a) in accordance with Section 6.01, or (yb), as applicable, for the relevant Test Period.
(b) in For purposes of calculating any financial ratio or test (including the case of any such compliance required prior to Consolidated Total Net Leverage Ratio, the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum Consolidated First Lien Net Leverage Ratio permitted for Ratio, the fiscal quarter ending June 30Consolidated Senior Secured Net Leverage Ratio, 2014. With respect Interest Coverage Ratio, and Consolidated EBITDA and Total Assets), Specified Transactions (with any incurrence or repayment of any Indebtedness in connection therewith to any provision of this Agreement (other than the provisions of be subject to Section 6.02(a) or Section 7.081.09(d)) that requires compliance have been made (i) during the applicable Test Period and (ii) if applicable as described in Section 1.09(a), subsequent to such Test Period and prior to or Pro Forma Compliance simultaneously with the Financial Covenant, event for which the calculation of any such compliance ratio or Pro Forma Compliance shall be required regardless of whether the Lux Borrower test is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness made shall be calculated as if on a pro forma basis assuming that all such Specified Transactions (and any increase or decrease in Consolidated EBITDA and the rate in effect component financial definitions used therein attributable to any Specified Transaction) had occurred on the date for which a first day (or, in case of the determination under this definition is made had been of Total Assets, the last day) of the applicable rate for Test Period. If since the entire period beginning of any applicable Test Period any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Borrower or any of its Restricted Subsidiaries since the beginning of such Test Period shall have made any Specified Transaction that would have required adjustment pursuant to this Section 1.09, then such financial ratio or test (taking into account any Swap Contracts applicable and Consolidated EBITDA and Total Assets) shall be calculated to such Indebtedness if such Swap Contracts has a remaining term give pro forma effect thereto in excess of 12 months);accordance with this Section 1.09.
(2c) interest on Whenever pro forma effect is to be given to a Capitalized Lease Obligation Specified Transaction, the pro forma calculations shall be deemed to accrue at an interest rate reasonably determined made in good faith by a responsible financial or accounting officer of the Borrower Representative and include, for the avoidance of doubt, the amount of “run-rate” cost savings, operating expense reductions and synergies projected by the Borrower in good faith to be the rate realized as a result of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
specified actions taken or expected to be taken (3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed calculated on a pro forma basis as though such cost savings, operating expense reductions and synergies had been realized on the first day of such period and as if such cost savings, operating expense reductions and synergies were realized during the entirety of such period) and “run-rate” means the full recurring benefit for a period that is associated with any action taken, committed to be taken or expected to be taken (including any savings expected to result from the elimination of a public target’s compliance costs with public company requirements) net of the amount of actual benefits realized during such period from such actions, and any such adjustments shall be computed based upon included in the average daily balance initial pro forma calculations of such Indebtedness financial ratios or tests and during any subsequent Test Period in which the applicable periodeffects thereof are expected to be realized relating to such Specified Transaction; and
provided that (5i) such amounts are (A) reasonably supportable and quantifiable in the good faith judgment of the Borrower, (B) reasonably anticipated to be realized not later than eighteen (18) months after the date of such Specified Transaction, and (C) no amounts shall be added pursuant to this Section 1.09(c) to the extent not already covered aboveduplicative of any amounts that are otherwise added back in computing Consolidated EBITDA, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any whether through a pro forma calculation may includeadjustment or otherwise, without limitationwith respect to such period; provided that any increase to Consolidated EBITDA as a result of cost savings, (1operating expense reductions and synergies pursuant to this Section 1.09(c) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) shall be subject to the extent such adjustments, without duplication, continue to be applicable to the Reference Period limitations set forth in clause (as defined in vii) of the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost SavingsConsolidated EBITDA.”
Appears in 1 contract
Pro Forma Calculations. Notwithstanding anything to the contrary herein (subject to Section 1.02(j1.02(i)), the Consolidated Cash Interest Expense, the First Lien Net Leverage Ratio, the Senior Secured Net Leverage Ratio, the Total Net Leverage Ratio and Ratio, the Fixed Charge Coverage Ratio Ratio, Consolidated Net Income, Consolidated EBITDA and Consolidated Net Tangible Total Assets shall be calculated (including including, in each case, for purposes of Sections 2.14 and 2.15) on a Pro Forma Basis with respect to each Specified Transaction occurring during the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four-quarter period but not later than the date of such calculationperiod; provided that notwithstanding the foregoingforegoing or the definition of Pro Forma Basis, when calculating (A) Consolidated Net Income for purposes of the definition of Excess Cash Flow and (B) the First Lien Net Leverage Ratio for purposes of (i) determining the applicable percentage of Excess Cash Flow for purposes of Section 2.05(b), (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenant, any Specified Transaction and any related adjustment contemplated in the definition of “Pro Forma Basis Basis” (and corresponding provisions of the definition of “Consolidated EBITDA”) that occurred subsequent to the end of the applicable four quarter period shall not be given Pro Forma Effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenant, (x) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01, or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;IFRS; 97
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and;
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing or Qualified Receivables Factoring computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(ain clause (a) of the definition of “Consolidated EBITDA” to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savings.”
Appears in 1 contract
Samples: Credit Agreement (Farfetch LTD)
Pro Forma Calculations. (a)
(a) Notwithstanding anything to the contrary herein (subject to Section 1.02(j))herein, the First Lien Senior Secured Net Leverage Ratio, the Total Net Leverage Ratio and, the Total Senior Secured Leverage Ratio and the Fixed Charge Coverage Financial Covenant Total Leverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 and 2.15) on a Pro Forma Basis with respect to each Specified Transaction occurring during in the applicable four quarter period to which such calculation relatesmanner prescribed by this Section 1.08; provided, and/or subsequent that notwithstanding anything to the end contrary in clauses (b), (c) or (d) of such four-quarter period but not later than the date of such calculation; provided that notwithstanding the foregoingthis Section 1.08, when calculating (i) the First Lien Senior 61 J. Crew – A&R Term Loan Credit Agreement 61 WEIL:\96135034\1\54457.0006 Secured Net Leverage Ratio for purposes of the definition of “Applicable Rate” and Section 2.03(b)(i) and (iii) determining the applicable percentage of Excess Cash Flow Financial Covenant Total Leverage Ratio for purposes of Section 2.05(b)7.15, (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenant, any Specified Transaction and any related adjustment contemplated events described in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) this Section 1.08 that occurred subsequent to the end of the applicable four quarter period Test Period shall not be given Pro Forma Effect. pro forma effect.
(b) For purposes of determining compliance with calculating the Senior Secured Net Leverage Ratio, the Total Leverage Ratio and, the Total Senior Secured Leverage Ratio and the Financial Covenant Total Leverage Ratio, Specified Transactions (and the incurrence or repayment of any provision of this Agreement which requires Pro Forma Compliance Indebtedness in connection therewith) that have been made (i) during the applicable Test Period or (ii) subsequent to such Test Period and prior to or simultaneously with the Financial Covenant, (x) in event for which the case calculation of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30, 2014, such Pro Forma Compliance ratio is made shall be determined by reference calculated on a pro forma basis assuming that all such Specified Transactions (and any increase or decrease in Consolidated EBITDA and the component financial definitions used therein attributable to any Specified Transaction) had occurred on the maximum First Lien first day of the applicable Test Period. If since the beginning of any applicable Test Period any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Borrower or any of its Restricted Subsidiaries since the beginning of such Test Period shall have made any Specified Transaction that would have required adjustment pursuant to this Section 1.08, then the Senior Secured Net Leverage Ratio, the Total Leverage Ratio permitted for and, the fiscal quarter most recently then ended for which financial statements have been delivered (or were required Total Senior Secured Leverage Ratio and the Financial Covenant Total Leverage Ratio shall be calculated to have been delivered) give pro forma effect thereto in accordance with this Section 6.011.08.
(c) (c) Whenever pro forma effect is to be given to a Specified Transaction, or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance pro forma calculations shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate made in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined good faith by a responsible financial or accounting officer of the Borrower Representative and may include, for the avoidance of doubt, the amount of cost savings and synergies projected by the Borrower in good faith to be the rate realized as a result of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
specified actions taken, committed to be taken or expected to be taken (3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed calculated on a pro forma basis as though such cost savings and synergies had been realized on the first day of such period and as if such cost savings and synergies were realized during the entirety of such period) relating to such Specified Transaction, net of the amount of actual benefits realized during such period from such actions; provided that (A) such amounts are reasonably identifiable, quantifiable and factually supportable in the good faith judgment of the Borrower, (B) such actions are taken, committed to be taken or expected to be taken no later than twelve (12) months after the date of such Specified Transaction, (C) no amounts shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
added pursuant to this clause (5c) to the extent not already covered aboveduplicative of any amounts that are otherwise added back in computing Consolidated EBITDA, whether through a pro forma adjustment or otherwise, with respect to such period and (D) the aggregate amount of cost savings and synergies added to Consolidated EBITDA pursuant to this clause (c) for any such calculation may include adjustments calculated period shall not exceed the greater of (x), together with any amounts added to Consolidated EBITDA pursuant to clauses (a)(vi) and (a)(x) of the definition thereof, shall not exceed (I) $30,000,000 in accordance with Regulation S-X under the Securities Act. Any andy (y) 10% of Consolidated EBITDA for such Test Period (giving pro forma calculation effect to the relevant Specified Transaction (but not to any cost savings or synergies))occurring prior to, or ending on or about February 1, 2020 and (II) $15,000,000 in any Test Period thereafter.
(d) (d) In the event that the Borrower or any Restricted Subsidiary incurs (including by assumption or guarantees) or repays (including by redemption, repayment, retirement or extinguishment) any Indebtedness included in the calculations of the Senior 62 J. Crew – A&R Term Loan Credit Agreement 62 WEIL:\96135034\1\54457.0006 Secured Net Leverage Ratio, the Total Leverage Ratio and, the Total Senior Secured Leverage Ratio and the Financial Covenant Total Leverage Ratio, as the case may includebe (in each case, without limitationother than Indebtedness incurred or repaid under any revolving credit facility in the ordinary course of business for working capital purposes), (1i) adjustments during the applicable Test Period or (ii) subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then the Senior Secured Net Leverage Ratio, the Total Leverage Ratio, and the Total Senior Secured Leverage Ratio and the Financial Covenant Total Leverage Ratio shall be calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give giving pro forma effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) such incurrence or repayment of Indebtedness, to the extent such adjustmentsrequired, without duplication, continue to be as if the same had occurred on the last day of the applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost SavingsTest Period.”
Appears in 1 contract
Pro Forma Calculations. Notwithstanding anything to the contrary herein (subject to Section 1.02(j))contained herein, all calculations of the First Lien Net Leverage Ratio, the Total Net Consolidated Leverage Ratio and the Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 determining the Applicable Rate) and 2.15) the Consolidated Interest Coverage Ratio shall be made on a Pro Forma Basis with respect to each all Specified Transaction Transactions occurring during the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four-four quarter period but not later than the date of such calculation; provided that provided, that, notwithstanding the foregoing, when calculating the First Lien Net Consolidated Leverage Ratio and/or the Consolidated Interest Coverage Ratio for purposes of determining (ix) determining the applicable percentage of Excess Cash Flow for purposes of compliance with Section 2.05(b), 7.11 and/or (iiy) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenant, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four quarter period shall not be given Pro Forma Effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenantany financial covenant set forth in Section 7.11, (x) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30, 20142019, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Consolidated Leverage Ratio and/or minimum Consolidated Interest Coverage Ratio, as applicable, permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.016.01(a) or (b), or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the Interim Financial Statements and the maximum First Lien Net Consolidated Leverage Ratio and/or minimum Consolidated Interest Coverage Ratio, as applicable, permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savings2019.”
Appears in 1 contract
Samples: Credit Agreement (GENTHERM Inc)
Pro Forma Calculations. Notwithstanding anything to the contrary herein (subject to Section 1.02(j)), the First Lien Net Leverage Ratio, the Total Net Leverage Ratio and the Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for For purposes of Sections 2.14 and 2.15) determining compliance on a Pro Forma Basis with respect any Financial Covenants or other ratio requirement under this Agreement, or whether a Default or Event of Default has occurred and is continuing, in each case, in connection with the consummation of an Acquisition using proceeds from an Add-On Term Loan that qualifies to each Specified Transaction occurring during the applicable four quarter period to which such calculation relates, and/or subsequent be subject to the end of such four-quarter period but not later than Incremental Funds Certain Provision, the date of determination shall, at the option of the Borrower, be the date of execution of such calculation; provided that notwithstanding the foregoingAcquisition Agreement, when calculating the First Lien Net Leverage Ratio for purposes of (i) determining the applicable percentage of Excess Cash Flow for purposes of Section 2.05(b), (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance such determination shall be made on a Pro Forma Basis) with , and, for the avoidance of doubt, if any such Financial Covenant, any Specified Transaction and any related adjustment contemplated Covenant or other ratio requirement is subsequently breached as a result of fluctuations in the definition ratio that is subject of Pro Forma Basis such Financial Covenant or other ratio requirement (and corresponding provisions including due to fluctuations in Consolidated EBITDA of the definition of Consolidated EBITDA) that occurred subsequent to Borrower or the end EBITDA of the applicable four quarter period shall not be given Pro Forma Effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenanttarget), (x) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on at or about June 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01, or (y) in the case of any such compliance required prior to the delivery referred consummation of such Acquisition (and the other transactions to be entered into in clause (x) aboveconnection therewith), such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, Covenant or other rate, shall ratio requirement will not be deemed to have been based upon breached as a result of such fluctuations solely for the rate actually chosenpurpose of determining whether such Acquisition (and the other transactions to be entered into in connection therewith) constitutes a Permitted Acquisition; provided, orthat, (i) if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
elects to have such determination occur at the time of entry into the applicable Acquisition Agreement (4and not at the time of consummation of the Acquisition), the Add-On Term Loan to be incurred shall be deemed incurred at the time of such election (unless the applicable Acquisition Agreement is terminated without actually consummating the applicable Permitted Acquisition (in which case, such Acquisition and related Add-On Term Loan will not be treated as having occurred)) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed and outstanding thereafter for purposes of calculating compliance, on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”, with any applicable ratio requirement in this Agreement (even if unrelated to determining whether such Acquisition is a Permitted Acquisition) (but not, for purposes of clarity, in calculating compliance with the Financial Covenants); provided that any such adjustments that consist , and (ii) EBITDA of reductions in costs and other operating improvements or synergies the target shall be calculated in accordance withdisregarded for all purposes under this Agreement, and satisfy other than determining whether such Acquisition is a Permitted Acquisition until the requirements specified in, the definition consummation of “Pro Forma Cost Savingssuch Permitted Acquisition.”
Appears in 1 contract
Samples: Delayed Draw Term Loan Credit Agreement (Spirit AeroSystems Holdings, Inc.)
Pro Forma Calculations. (a) Notwithstanding anything to the contrary herein (subject to Section 1.02(j))herein, financial ratios and tests, including the First Lien Consolidated Total Net Leverage Ratio, the Total Consolidated Secured Net Leverage Ratio, the Consolidated First Lien Net Leverage Ratio and the Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets Ratio, shall be calculated (including for purposes of Sections 2.14 and 2.15) on a Pro Forma Basis with respect to each Specified Transaction occurring during in the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four-quarter period but not later than the date of such calculationmanner prescribed by this Section 1.09; provided that notwithstanding anything to the foregoingcontrary in Section 1.09(b), (c) or (d), when calculating the First Lien Consolidated Secured Net Leverage Ratio for purposes of (i) determining the applicable percentage definition of Excess Cash Flow for purposes of Section 2.05(b), “Applicable Rate” and (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with any covenant pursuant to Section 7.11, the Financial Covenant, any Specified Transaction and any related adjustment contemplated events described in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) this Section 1.09 that occurred subsequent to the end of the applicable four quarter period Test Period shall not be given Pro Forma Effectpro forma effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with In addition, whenever a financial ratio or test is to be calculated on a pro forma basis, the Financial Covenant, (x) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted “Test Period” for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01, or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on calculating such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation financial ratio or test shall be deemed to accrue at be a reference to, and shall be based on, the most recently ended Test Period for which internal financial statements of the Borrower are available (as determined in good faith by the Borrower); provided that, the provisions of this sentence shall not apply for purposes of calculating the Consolidated Secured Net Leverage Ratio for purposes of the definition of “Applicable Rate” and determining actual compliance with Section 7.11 (other than for the purpose of determining pro forma compliance with Section 7.11), each of which shall be based on the financial statements delivered pursuant to Section 6.01(a) or (b), as applicable, for the relevant Test Period, subject to the adjustments contemplated by the parenthetical in clause (ii) of the proviso to the first sentence of this Section 1.09(a).
(b) For purposes of calculating any financial ratio or test, or basket that is based on a percentage of Consolidated EBITDA, Specified Transactions (with any incurrence or repayment of any Indebtedness in connection therewith to be subject to Section 1.09(d)) that have been made (i) during the applicable Test Period and (ii) if applicable as described in Section 1.09(a), subsequent to such Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made shall be calculated on a pro forma basis assuming that all such Specified Transactions (and any increase or decrease in Consolidated EBITDA and the component financial definitions used therein attributable to any Specified Transaction) had occurred on the first day of the applicable Test Period. If since the beginning of any applicable Test Period any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Borrower or any of its Restricted Subsidiaries since the beginning of such Test Period shall have made any Specified Transaction that would have required adjustment pursuant to this Section 1.09, then such financial ratio or test shall be calculated to give pro forma effect thereto in accordance with this Section 1.09.
(c) Whenever pro forma effect is to be given to the Transactions, a Specified Transaction or the implementation of an interest rate reasonably determined operational initiative or operational change, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Borrower Representative and include, for the avoidance of doubt, the amount of “run-rate” cost savings, operating expense reductions, operating initiatives, other operating improvements and synergies projected by the Borrower in good faith to be realized as a result of specified actions taken, committed to be taken or expected to be taken (calculated on a pro forma basis as though such cost savings, operating expense reductions, operating initiatives, other operating improvements and synergies had been realized on the first day of such period and as if such cost savings, operating expense reductions, operating initiatives, other operating improvements and synergies were realized during the entirety of such period) and “run-rate” means the full recurring benefit for a period that is associated with any action taken, committed to be taken or expected to be taken (including any savings expected to result from the elimination of a public target’s compliance costs with public company requirements) net of the amount of actual benefits realized during such period from such actions, and any such adjustments shall be included in the initial pro forma calculations of such financial ratios or tests and during any subsequent Test Period in which the effects thereof are expected to be realized relating to the Transactions, such Specified Transaction or such implementation of an operational initiative or operational change; provided that (A) such cost savings, operating expense reductions, operating initiatives, other operating improvements and synergies are factually supportable in the good faith judgment of the Borrower, (B) such cost savings, operating expense reductions, operating initiatives, other operating improvements and synergies are factually supportable and reasonably anticipated to be realizable in the good faith judgment of the Borrower within 24 months after the date of the Transactions, such Specified Transaction or such implementation of an operational initiative or operational change and (C) no amounts shall be added pursuant to this Section 1.09(c) to the extent duplicative of any amounts that are otherwise added back in computing Consolidated EBITDA, whether through a pro forma adjustment or otherwise, with respect to such period.
(d) In the event that the Borrower or any Restricted Subsidiary incurs (including by assumption or guarantees) or repays (including by redemption, repayment, retirement or extinguishment) any Indebtedness included in the calculations of any financial ratio or test (in each case, other than Indebtedness incurred or repaid under any revolving credit facility), (i) during the applicable Test Period or (ii) subject to Section 1.09(a) subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then such financial ratio or test shall be calculated giving pro forma effect to such incurrence or repayment of Indebtedness, to the extent required, as if the same had occurred on the last day of the applicable Test Period.
(e) At any time prior to the first applicable test date under Section 7.11, any provision requiring the pro forma compliance with Section 7.11 shall be made assuming that compliance with the Consolidated Secured Net Leverage Ratio set forth in Section 7.11 for the first Test Period set forth in Section 7.11 is required with respect to the most recent Test Period prior to such time.
(f) Notwithstanding anything in this Agreement or any Loan Document to the contrary, when calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated Secured Net Leverage Ratio, the Consolidated Total Net Leverage Ratio or the Fixed Charge Coverage Ratio, as applicable, testing availability under any basket provided for in this Agreement or determining other compliance with this Agreement (including the determination of compliance with any provision of this Agreement which requires that no Default or Event of Default has occurred, is continuing or would result therefrom or requiring the accuracy of representations and warranties) in connection with a Specified Transaction undertaken in connection with the consummation of a Limited Condition Transaction, the date of determination of such ratio and determination or measurement of whether any Default or Event of Default has occurred, is continuing or would result therefrom or other applicable covenant or accuracy of representations and warranties shall, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), be deemed to be the rate date the definitive agreements for such Limited Condition Transaction are entered into (the “LCT Test Date”) and if, after such ratios and other provisions are measured or determined on a Pro Forma Basis after giving effect to such Limited Condition Transaction and the other Specified Transactions to be entered into in connection therewith (including any incurrence of interest implicit Indebtedness and the use of proceeds thereof) as if they occurred at the beginning of the Test Period being used to calculate such financial ratio ending prior to the LCT Test Date, the Borrower could have taken such action on the relevant LCT Test Date in compliance with such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rateratios and provisions, a eurocurrency interbank offered rate, or other rate, such provisions shall be deemed to have been based upon complied with on such date. For the rate actually chosenavoidance of doubt, or(x) if any of such ratios or baskets are exceeded as a result of fluctuations in such ratio or basket, if noneincluding due to fluctuations in Consolidated EBITDA of the Borrower or the target of any Limited Condition Transaction (other than as a result of any incurrence, disposition or Restricted Payment) or currency exchange rates, at or prior to the consummation of the relevant Limited Condition Transaction, such ratios, baskets and other provisions will not be deemed to have been exceeded as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction is permitted hereunder and (y) such ratios, baskets and other provisions shall not be tested at the time of consummation of such Limited Condition Transaction or related Specified Transactions. If the Borrower has made an LCT Election for any Limited Condition Transaction, then based upon in connection with any subsequent calculation of any ratio (excluding, for the avoidance of doubt, any ratio contained in Section 7.11) or basket availability with respect to any other Specified Transaction on or following the relevant LCT Test Date and prior to the earlier of the date on which such optional rate chosen as Limited Condition Transaction is consummated or the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility date that the definitive agreement for such Limited Condition Transaction is terminated or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance expires without consummation of such Indebtedness during the applicable period; and
(5) to the extent not already covered aboveLimited Condition Transaction, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements ratio or synergies basket shall be calculated in accordance with, (and satisfy the requirements specified in, the definition of “tested) on a Pro Forma Cost SavingsBasis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated.”
Appears in 1 contract
Pro Forma Calculations. Notwithstanding anything to the contrary herein (subject to Section 1.02(j))contained herein, all calculations of the First Lien Net Leverage Ratio, the Consolidated Rent-Adjusted Total Net Leverage Ratio and the Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 determining the Applicable Rate or compliance with any financial covenant set forth in Section 7.11) and 2.15) the Consolidated Fixed Charge Coverage Ratio, in each case, shall be made on a Pro Forma Basis with respect to each all Specified Transaction Transactions occurring during the applicable four quarter period Measurement Period to which such calculation relates, and/or subsequent to the end of such four-quarter period Measurement Period but not later than the date of such calculation; provided that provided, that, notwithstanding the foregoing, when calculating the First Lien Net Consolidated Rent-Adjusted Total Leverage Ratio or the Consolidated Fixed Charge Coverage Ratio, in each case, for purposes of determining (i) determining the applicable percentage of Excess Cash Flow for purposes of compliance with Section 2.05(b)7.11, and/or (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenant, any Specified Transaction and any related adjustment contemplated in the definition of “Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) Basis” that occurred subsequent to the end of the applicable four quarter period Measurement Period shall not be given Pro Forma Effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenantany financial covenant set forth in Section 7.11, (xA) in the case of any such compliance required after delivery of financial statements for the fiscal quarter Fiscal Year ending on or about June 30December 31, 20142021, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Consolidated Rent-Adjusted Total Leverage Ratio and/or the minimum Consolidated Fixed Charge Coverage Ratio, as applicable, permitted for the fiscal quarter Fiscal Quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01, 6.01(a) or (yb), as applicable, and (B) in the case of any such compliance required prior to the delivery referred to in clause (xA) above, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Consolidated Rent-Adjusted Total Leverage Ratio and/or the minimum Consolidated Fixed Charge Coverage Ratio, as applicable, permitted for the fiscal quarter Fiscal Quarter ending June 30December 31, 20142021.
(e) Determinations or Calculations Made by Reference to Most Recently Delivered Financial Statements. With respect Notwithstanding anything to the contrary set forth herein, prior to the delivery of financial statements pursuant to Section 6.01(a) for the Fiscal Year ending December 31, 2021, any provision of calculation or other determination to be made pursuant to this Agreement (other than by reference to the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness most recently delivered financial statements shall be calculated or determined, as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined applicable, by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) reference to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost SavingsHistorical Financial Statements.”
Appears in 1 contract
Samples: Credit Agreement (Arhaus, Inc.)
Pro Forma Calculations. (a) Notwithstanding anything to the contrary herein (subject to Section 1.02(j))herein, for purposes of this Agreement and the other Loan Documents, the First Lien Net Leverage Ratio, the Secured Net Leverage Ratio, the Total Net Leverage Ratio and the Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets EBITDA shall be calculated (including including, but not limited to, for purposes of Sections 2.14 and 2.15Section 2.14) on a Pro Forma Basis with respect to each Specified Transaction occurring during the applicable four quarter period to which such calculation relates, and/or or subsequent to the end of such four-quarter period but not later than the date of such calculation; provided that notwithstanding the foregoing, when calculating the First Lien Net Leverage Ratio and the Secured Net Leverage Ratio, as applicable, for purposes of determining (ia) determining the applicable percentage of Excess Cash Flow for purposes of set forth in Section 2.05(b)2.05, (iib) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenantmaximum First Lien Net Leverage Ratio pursuant to Section 7.11 and (c) the Applicable Rate and the Revolving Commitment Fee Percentage, any Specified Transaction and any related adjustment contemplated the events described in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four quarter period shall not be given Pro Forma Effect. For purposes of determining compliance .
(b) Notwithstanding anything to the contrary herein, in connection with any provision of this Agreement which requires Pro Forma Compliance action required to be taken in connection with a Limited Condition Transaction, for purposes of:
(i) calculating the Financial Covenant, (x) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio, the Secured Net Leverage Ratio permitted or the Total Net Leverage Ratio and other financial calculations (including, but not limited to, for purposes of Section 2.14);
(ii) determining compliance with representations, warranties, Defaults or Events of Default; or
(iii) testing availability under covenant baskets set forth in this Agreement (including covenant baskets measured as a percentage of Consolidated EBITDA); in each case, at the fiscal quarter most recently then ended option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), the date of determination shall be deemed to be the date the definitive agreement for which financial statements such Limited Condition Transaction is entered into (the “LCT Test Date”), and if, after giving Pro Forma Effect to the Limited Condition Transaction and the other transactions required to be entered into in connection therewith (including any incurrence or repayment of Indebtedness and the use of proceeds thereof) as of the LCT Test Date, the Borrower would have been delivered (permitted to take such action on the relevant LCT Test Date in compliance with such ratio, test or were required basket, such ratio, test or basket shall be deemed to have been deliveredcomplied with; provided that availability under any ratio and the determination of whether the relevant condition is satisfied calculated on the applicable LCT Test Date may in any event be recalculated, at the option of the Borrower, on the closing date of the Limited Condition Transaction. For the avoidance of doubt, if the Borrower has made an LCT Election and any of the ratios, tests or baskets for which compliance was determined or tested as of the LCT Test Date are exceeded as a result of fluctuations in any such ratio, test or basket, including due to fluctuations in Consolidated EBITDA of the Borrower or the Person subject to such Limited Condition Transaction, at or prior to the consummation of the relevant transaction or action, such baskets, tests or ratios will not be deemed to have been exceeded as a result of such fluctuations. If the Borrower has made an LCT Election for any Limited Condition Transaction, then in connection with any calculation of any ratio, test or basket availability with respect to any transaction required to be entered into in connection with such Limited Condition Transaction following the relevant LCT Test Date and prior to the earlier of the date on which such Limited Condition Transaction is consummated or the date that the definitive agreement for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, for purposes of determining whether any such required transaction is permitted under this Agreement, any such ratio, test or basket shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and such other required transaction (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated. If the Borrower has made an LCT Election for any Limited Condition Transaction, then in accordance connection with Section 6.01any calculation of any other ratio, test or basket availability with respect to the incurrence of Indebtedness or Liens, the making of Restricted Payments, the making of any permitted Investment, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of the Borrower, the prepayment, redemption, purchase, defeasance or other satisfaction of Indebtedness, or the designation of an Unrestricted Subsidiary, in each case, not required to be entered into in connection with the applicable Limited Condition Transaction (a “Subsequent Transaction”) following the relevant LCT Test Date and prior to the earlier of (x) the date on which such Limited Condition Transaction is consummated or (y) in the case date that the definitive agreement for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction (or the date on which the Borrower demonstrates to the Administrative Agent that it has elected not to pursue such Limited Condition Transaction), for purposes of determining whether such Subsequent Transaction is permitted under this Agreement, any such compliance required prior to the delivery referred to in clause (x) aboveratio, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) test or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance basket shall be required regardless of whether the Lux Borrower is otherwise to be satisfied on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions required to comply with such covenant under be entered into in connection therewith (including any incurrence of Indebtedness and the terms use of Section 7.08 at such time. For purposes of making any computation referred to above:proceeds thereof) have been consummated.
(1c) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer Responsible Officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest . Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency London interbank offered rate, or other rate, shall be deemed determined to have been based upon the rate actually chosen, or, or if none, then based upon such optional rate chosen as the Borrower Representative or Restricted Subsidiary may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savings.”
Appears in 1 contract
Pro Forma Calculations. Notwithstanding anything herein to the contrary herein (subject to Section 1.02(j))contrary, any calculation of the First Lien Consolidated Total Leverage Ratio, Consolidated Interest Coverage Ratio, Consolidated Senior Secured Net Leverage Ratio, the Total Net Leverage Ratio and the Fixed Charge Coverage Ratio and Consolidated Net EBITDA or Consolidated Tangible Assets for any Reference Period (x) during which an Acquisition or Dispositionevent for which such calculation is made shall have occurred or (y) subsequent to such Reference Period and prior to or simultaneously with the event for which thesuch calculation of any such financial ratio or financial amount is made shall in each case be calculated (including for purposes of Sections 2.14 and 2.15) made on a Pro Forma Basis with respect to each Specified Transaction occurring during the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four-quarter period but not later than the date of such calculation; provided that notwithstanding the foregoing, when calculating the First Lien Net Leverage Ratio for purposes of making the following determinations:
(i) determining the applicable percentage of Excess Cash Flow for purposes of Section 2.05(b), (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenant, any Specified Transaction and any related adjustment contemplated in pricing level under the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) “Applicable Rate;” provided that events that occurred subsequent to the end of the applicable four quarter period Reference Period shall not be given Pro Forma Effect. For purposes of pro forma effect;
(ii) determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenant, (x) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Consolidated Total Leverage Ratio permitted for and the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01, or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Consolidated Interest Coverage Ratio permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required conditions precedent for a proposed transaction have been satisfied as contemplated by subsection (iv) of this Section 1.03(c)); provided that, solely with respect to comply with such covenant under Section 7.17, events that occurred subsequent to the terms end of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being the applicable Reference Period shall not be given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2iii) interest calculating availability under the basket set forth in Section 2.16(a) based on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer the Consolidated EBITDA of the Borrower Representative to be and its consolidated Subsidiaries for the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designateapplicable Reference Period; and
(4iv) interest on determining whether the conditions precedent have been satisfied for a proposed transaction, including any Indebtedness under a revolving credit facility calculation of the Consolidated Senior Secured Net Leverage Ratio or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance Consolidated Total Leverage Ratio for purposes of such Indebtedness during Sections 2.16(a) and/or 7.03(f), and any determination of whether an Event of Default will result from the applicable period; and
(5) to the extent not already covered aboveconsummation thereof, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may includeincluding, without limitation, (1) adjustments calculated any Disposition or any Investment which results in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savingsan Acquisition.”
Appears in 1 contract
Samples: Credit Agreement (Integra Lifesciences Holdings Corp)
Pro Forma Calculations. Notwithstanding anything to the contrary herein (subject to Section 1.02(j))contained herein, all calculations of the First Lien Net Leverage Ratio, the Total Net Consolidated Leverage Ratio and the Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 compliance with Section 7.11 and 2.15determining the Applicable Rate) and the Consolidated Fixed Charge Coverage Ratio, in each case, shall be made on a Pro Forma Basis with respect to each all Specified Transaction Transactions occurring during the applicable four quarter period of measurement to which such calculation relates, and/or subsequent to the end of such four-quarter period but not later than the date of such calculation; provided that provided, that, notwithstanding the foregoing, when calculating the First Lien Net Consolidated Leverage Ratio or the Consolidated Fixed Charge Coverage Ratio, in each case, for purposes of determining (i) determining the applicable percentage of Excess Cash Flow for purposes of compliance with Section 2.05(b)7.11, and/or (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenant, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four quarter period of measurement shall not be given Pro Forma Effect; provided further, that, no Pro Forma Effect will be given to ordinary course Borrowings and repayments of Revolving Loans not incurred in connection with another Specified Transaction. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenantany financial covenant set forth in Section 7.11, (xA) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30, 20142019, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Consolidated Leverage Ratio and/or the minimum Consolidated Fixed Charge Coverage Ratio, as applicable, permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.016.01(a) or Section 6.01(b), as applicable, or (yB) in the case of any such compliance required prior to the delivery referred to in clause (xA) above, such Pro Forma Compliance shall be determined by reference to (x) the financial statements of the Borrower and its Subsidiaries referred to in Section 5.05(b) (or the financial statements of the Borrower and its Subsidiaries delivered pursuant to Section 6.01(b) for the fiscal quarter ended March 31, 2019, if such financial statements have been delivered) and (y) the maximum First Lien Net Consolidated Leverage Ratio and/or the minimum Consolidated Fixed Charge Coverage Ratio, as applicable, permitted for the fiscal quarter ending June 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savings2019.”
Appears in 1 contract
Pro Forma Calculations. (a) Notwithstanding anything to the contrary herein (subject to Section 1.02(j))herein, Adjusted EBITDA, EBITDA, Consolidated Net Income and any financial ratios or tests, including the First Lien Net Leverage Ratio, the Total Secured Net Leverage Ratio and the Fixed Charge Coverage Ratio and Consolidated Total Net Tangible Assets Leverage Ratio, shall be calculated (including for purposes of Sections 2.14 and 2.15) on a Pro Forma Basis with respect to each Specified Transaction occurring during in the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four-quarter period but not later than the date of such calculationmanner prescribed by this Section 1.08; provided that notwithstanding anything to the foregoingcontrary in clauses (b), (c) or (d) of this Section 1.08, when calculating the First Lien Total Net Leverage Ratio for purposes of (i) determining the applicable percentage of Excess Cash Flow for purposes of Section 2.05(b), (ii) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or Compliance, compliance on a Pro Forma BasisBasis or determining compliance giving Pro Forma Effect to a transaction) with Section 7.01, the Financial Covenant, any Specified Transaction and any related adjustment contemplated events described in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) this Section 1.08 that occurred subsequent to the end of the applicable four quarter period Test Period shall not be given Pro Forma Effect. .
(b) For purposes of determining compliance with calculating Adjusted EBITDA, EBITDA, Consolidated Net Income and any provision of this Agreement which requires Pro Forma Compliance with financial ratios or tests, including the Financial Covenant, (x) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Leverage Ratio, the Secured Net Leverage Ratio permitted and the Total Net Leverage Ratio, Specified Transactions (and the incurrence or repayment of any Indebtedness in connection therewith, subject to clause (d) of this Section 1.08) that have been made (i) during the applicable Test Period or (ii) subsequent to such Test Period and prior to or simultaneously with the event for which the calculation of Adjusted EBITDA, EBITDA, Consolidated Net Income or any such ratio is made shall be calculated on a Pro Forma Basis assuming that all such Specified Transactions (and any increase or decrease in Adjusted EBITDA, EBITDA, Consolidated Net Income and the component financial definitions used therein attributable to any Specified Transaction) had occurred on the first day of the applicable Test Period.
(c) Whenever Pro Forma Effect is to be given to a Specified Transaction, the pro forma calculations shall be made in good faith by a Responsible Officer of the Parent and may include, for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.01avoidance of doubt, or (y) in the case amount of any such compliance required prior to the delivery referred to cost savings, operating expense reductions and synergies described in clause (xg) aboveof “Adjusted EBITDA”; provided that (A) such amounts are reasonably identifiable and factually supportable (in the good faith determination of the Parent), (B) such actions are taken, committed to be taken or expected to be taken no later than twenty-four (24) months after the date of such Specified Transaction, (C) no amounts shall be added pursuant to this clause (c) to the extent duplicative of any amounts that are otherwise added back in computing Adjusted EBITDA or EBITDA, whether through a pro forma adjustment or otherwise, with respect to such period and (D) it is understood and agreed that, subject to compliance with the other provisions of this Section 1.08(c), amounts to be included in pro forma calculations pursuant to this Section 1.08(c) may be included in Test Periods in which the Specified Transaction to which such amounts relate to is no longer being given Pro Forma Compliance shall be determined Effect pursuant to Section 1.08(b).
(d) In the event that the Parent or any Restricted Subsidiary incurs (including by reference to assumption or guarantees) or repays (including by repurchase, redemption, repayment, retirement or extinguishment) any Indebtedness included in the maximum calculations of the First Lien Net Leverage Ratio, the Secured Net Leverage Ratio permitted for and the fiscal quarter ending June 30Total Net Leverage Ratio, 2014. With respect to any provision of this Agreement as the case may be (in each case, other than Indebtedness incurred or repaid under any revolving credit facility in the provisions ordinary course of Section 6.02(abusiness for working capital purposes), (i) during the applicable Test Period or Section 7.08(ii) that requires compliance subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then the First Lien Net Leverage Ratio, the Secured Net Leverage Ratio and the Total Net Leverage Ratio shall be calculated giving Pro Forma Compliance with Effect to such incurrence or repayment of Indebtedness, to the Financial Covenantextent required, such compliance or Pro Forma Compliance shall be required regardless as if the same had occurred on the last day of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such timeapplicable Test Period. For purposes of making any computation referred to above:
(1) if If any Indebtedness bears a floating rate of interest and is being given pro forma effectPro Forma Effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition such calculation is being made had been the applicable rate for the entire period (taking into account any Swap Contracts Agreement applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 monthsIndebtedness);
(2) interest . Interest on a Capitalized Capital Lease Obligation Obligations shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer Responsible Officer of the Borrower Representative Parent to be the rate of interest implicit in such Capitalized Capital Lease Obligation in accordance with GAAP;
(3) interest . Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative Parent may designate; and.
(4e) interest On and after the date Pro Forma Effect is to be given to a Limited Condition Acquisition and on which the Parent or any Indebtedness under Restricted Subsidiary is incurring or deemed to be incurring Indebtedness, which Limited Condition Acquisition has yet to be consummated but for which a revolving credit facility or a Qualified Receivables Financing computed definitive agreement governing such Limited Condition Acquisition has been executed and remains in effect, any ratio based conditions and baskets (including baskets that are determined on a pro forma the basis of Adjusted EBITDA) shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue required to be applicable to satisfied assuming both that such Limited Condition Acquisition has been consummated and the Reference Period (as defined related Indebtedness incurred and that such Limited Condition Acquisition has not been consummated and the related Indebtedness has not been incurred, in the definition of “Pro Forma Basis”); provided that any each case until such adjustments that consist of reductions in costs and other operating improvements Limited Condition Acquisition is consummated or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savingssuch definitive agreement is terminated.”
Appears in 1 contract
Samples: Credit Agreement (Galleria Co.)
Pro Forma Calculations. Notwithstanding anything to the contrary herein (subject to Section 1.02(j))contained herein, all calculations of the First Lien Net Leverage Ratio, the Total Net Consolidated Leverage Ratio and the Fixed Charge Coverage Ratio and Consolidated Net Tangible Assets shall be calculated (including for purposes of Sections 2.14 determining the Applicable Rate) and 2.15) the Consolidated Fixed Charge Coverage Ratio shall be made on a Pro Forma Basis with respect to each all Specified Transaction Transactions occurring during the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four-four quarter period but not later than the date of such calculation; provided that provided, that, notwithstanding the foregoing, when calculating the First Lien Net Consolidated Leverage Ratio and/or the Consolidated Fixed Charge Coverage Ratio for purposes of determining (ix) determining the applicable percentage of Excess Cash Flow for purposes of compliance with Section 2.05(b), 7.11 and/or (iiy) the Applicable Rate, (iii) the Applicable Commitment Fee and (iv) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with the Financial Covenant, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four quarter period shall not be given Pro Forma Effect. For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with the Financial Covenantany financial covenant set forth in Section 7.11, (x) in the case of any such compliance required after delivery of financial statements for the fiscal quarter ending on or about June September 30, 2014, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Consolidated Leverage Ratio and/or minimum Consolidated Fixed Charge Coverage Ratio, as applicable, permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 6.016.01(a) or (b), or (y) in the case of any such compliance required prior to the delivery referred to in clause (x) above, such Pro Forma Compliance shall be determined by reference to the maximum First Lien Net Consolidated Leverage Ratio and/or minimum Consolidated Fixed Charge Coverage Ratio, as applicable, permitted for the fiscal quarter ending June September 30, 2014. With respect to any provision of this Agreement (other than the provisions of Section 6.02(a) or Section 7.08) that requires compliance or Pro Forma Compliance with the Financial Covenant, such compliance or Pro Forma Compliance shall be required regardless of whether the Lux Borrower is otherwise required to comply with such covenant under the terms of Section 7.08 at such time. For purposes of making any computation referred to above:
(1) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts has a remaining term in excess of 12 months);
(2) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower Representative to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower Representative may designate; and
(4) interest on any Indebtedness under a revolving credit facility or a Qualified Receivables Financing computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5) to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act. Any pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments described on Schedule 1.01(a) to the extent such adjustments, without duplication, continue to be applicable to the Reference Period (as defined in the definition of “Pro Forma Basis”); provided that any such adjustments that consist of reductions in costs and other operating improvements or synergies shall be calculated in accordance with, and satisfy the requirements specified in, the definition of “Pro Forma Cost Savings.”
Appears in 1 contract
Samples: Credit Agreement (GENTHERM Inc)
