FOR THE PURPOSES OF DETERMINING
COMPLIANCE WITH THIS AGREEMENT SHALL (EXCEPT AS OTHERWISE EXPRESSLY PROVIDED
HEREIN) BE MADE BY APPLICATION OF GAAP APPLIED ON A BASIS CONSISTENT WITH THE
MOST RECENT ANNUAL OR QUARTERLY FINANCIAL STATEMENTS DELIVERED PURSUANT TO
SECTION 6.01 (OR, PRIOR TO THE DELIVERY OF THE FIRST FINANCIAL STATEMENTS
PURSUANT TO SECTION 6.01, CONSISTENT WITH THE FINANCIAL STATEMENTS DESCRIBED IN
SECTION 5.05(A)); PROVIDED, HOWEVER, IF (I) THE COMPANY SHALL OBJECT TO
DETERMINING SUCH COMPLIANCE ON SUCH BASIS AT THE TIME OF DELIVERY OF SUCH
FINANCIAL STATEMENTS DUE TO ANY
36
change in GAAP or the rules promulgated with respect thereto or (ii) either the
Administrative Agent or the Required Lenders shall so object in writing within
60 days after delivery of such financial statements (or after the Lenders have
been informed of the change in GAAP affecting such financial statements, if
later), then such calculations shall be made on a basis consistent with the most
recent financial statements delivered by the Company to the Lenders as to which
no such objection shall have been made, and the Company shall provide to the
Administrative Agent and the Lenders financial statements and other documents
required under this Agreement or as reasonably requested hereunder setting forth
a reconciliation between calculations made before and after giving effect to
such change in GAAP.
SECTION 1.04
ANNUALIZATION; ROUNDING.
IF ANY DETERMINATION HEREUNDER IS
REQUIRED BY THE TERMS HEREOF TO BE MADE FOR A PERIOD OF FOUR CONSECUTIVE FISCAL
QUARTERS AT A TIME AT WHICH FEWER THAN FOUR FULL FISCAL QUARTERS HAVE ELAPSED
SINCE THE CLOSING DATE, SUCH DETERMINATION SHALL (EXCEPT AS OTHERWISE EXPRESSLY
PROVIDED HEREIN) BE MADE FOR THE PERIOD ELAPSED FROM THE CLOSING DATE THROUGH
THE MOST RECENT FISCAL QUARTER THEN ENDED (ANNUALIZED ON A SIMPLE ARITHMETIC
BASIS, IF SUCH DETERMINATION IS TO BE USED IN A RATIO WITH A BALANCE SHEET
ITEM).
ANY FINANCIAL RATIOS REQUIRED TO BE MAINTAINED BY ANY GROUP COMPANY
PURSUANT TO THIS AGREEMENT SHALL BE CALCULATED BY DIVIDING THE APPROPRIATE
COMPONENT BY THE OTHER COMPONENT, CARRYING THE RESULT TO ONE PLACE MORE THAN THE
NUMBER OF PLACES BY WHICH SUCH RATIO IS EXPRESSED HEREIN AND ROUNDING THE RESULT
UP OR DOWN TO THE NEAREST NUMBER (WITH A ROUNDING-UP IF THERE IS NO NEAREST
NUMBER).
SECTION 1.05
REFERENCES TO AGREEMENTS AND LAWS.
UNLESS OTHERWISE EXPRESSLY
PROVIDED HEREIN, (I) REFERENCES TO ORGANIZATION DOCUMENTS, AGREEMENTS (INCLUDING
THE TERM LOAN DOCUMENTS) AND OTHER CONTRACTUAL INSTRUMENTS SHALL BE DEEMED TO
INCLUDE ALL SUBSEQUENT AMENDMENTS, RESTATEMENTS, EXTENSIONS, SUPPLEMENTS AND
OTHER MODIFICATIONS THERETO, BUT ONLY TO THE EXTENT THAT SUCH AMENDMENTS,
RESTATEMENTS, EXTENSIONS, SUPPLEMENTS AND OTHER MODIFICATIONS ARE NOT PROHIBITED
BY ANY TERM LOAN DOCUMENT; AND (II) REFERENCES TO ANY LAW SHALL INCLUDE ALL
STATUTORY AND REGULATORY PROVISIONS CONSOLIDATING, AMENDING, REPLACING,
SUPPLEMENTING OR INTERPRETING SUCH LAW.
SECTION 1.06
TIMES OF DAY.
UNLESS OTHERWISE SPECIFIED, ALL REFERENCES HEREIN
TO TIMES OF DAY SHALL BE REFERENCES TO EASTERN TIME (DAYLIGHT OR STANDARD, AS
APPLICABLE).
ARTICLE II
THE CREDIT FACILITY
SECTION 2.01
COMMITMENTS TO LEND.
EACH LENDER