BY THE EXERCISE OF THE RIGHT OF SETOFF OR BANKER'S
LIEN, BY COUNTERCLAIM OR CROSS ACTION, BY THE ENFORCEMENT OF ANY RIGHT UNDER THE
CREDIT DOCUMENTS, OR OTHERWISE) WHICH IS APPLICABLE TO THE PAYMENT OF THE
PRINCIPAL OF, OR
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INTEREST ON, THE LOANS OR FEES, OF A SUM WHICH WITH RESPECT TO THE RELATED SUM
OR SUMS RECEIVED BY OTHER LENDERS IS IN A GREATER PROPORTION THAN THE TOTAL OF
SUCH OBLIGATION THEN OWED AND DUE TO SUCH LENDER BEARS TO THE TOTAL OF SUCH
OBLIGATION THEN OWED AND DUE TO ALL OF THE LENDERS IMMEDIATELY PRIOR TO SUCH
RECEIPT, THEN SUCH LENDER RECEIVING SUCH EXCESS PAYMENT SHALL PURCHASE FOR CASH
WITHOUT RECOURSE OR WARRANTY FROM THE OTHER LENDERS AN INTEREST IN THE
OBLIGATIONS OF THE RESPECTIVE CREDIT PARTY TO SUCH LENDERS IN SUCH AMOUNT AS
SHALL RESULT IN A PROPORTIONAL PARTICIPATION BY ALL OF THE LENDERS IN SUCH
AMOUNT, PROVIDED THAT IF ALL OR ANY PORTION OF SUCH EXCESS AMOUNT IS THEREAFTER
RECOVERED FROM SUCH LENDER, SUCH PURCHASE SHALL BE RESCINDED AND THE PURCHASE
PRICE RESTORED TO THE EXTENT OF SUCH RECOVERY, BUT WITHOUT INTEREST.
(C)
NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED HEREIN, THE PROVISIONS OF THE PRECEDING SECTIONS 12.06(A) AND
(B) SHALL BE SUBJECT TO THE EXPRESS PROVISIONS OF THIS AGREEMENT WHICH REQUIRE,
OR PERMIT, DIFFERING PAYMENTS TO BE MADE TO NON-DEFAULTING LENDERS AS OPPOSED TO
DEFAULTING LENDERS AND IN CONNECTION WITH REPAYMENTS OF LOANS PURSUANT TO
SECTION 4.01(B).
12.07
CALCULATIONS; COMPUTATIONS.
(A)
THE FINANCIAL STATEMENTS TO BE
FURNISHED TO THE LENDERS PURSUANT HERETO SHALL BE MADE AND PREPARED IN
ACCORDANCE WITH GAAP CONSISTENTLY APPLIED THROUGHOUT THE PERIODS INVOLVED
(SUBJECT, IN THE CASE OF QUARTERLY FINANCIAL STATEMENTS, TO YEAR END ADJUSTMENTS
AND THE ABSENCE OF FOOTNOTES AND EXCEPT AS SET FORTH IN THE NOTES THERETO, IF
ANY, OR AS OTHERWISE DISCLOSED IN WRITING BY THE BORROWER TO THE LENDERS),
PROVIDED THAT (X) EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN, ALL
COMPUTATIONS OF EXCESS CASH FLOW AND ALL COMPUTATIONS DETERMINING COMPLIANCE
WITH THE FINANCIAL COVENANTS, INCLUDING DEFINITIONS USED THEREIN, SHALL UTILIZE
ACCOUNTING PRINCIPLES AND POLICIES IN EFFECT AT THE TIME OF THE PREPARATION OF,
AND IN CONFORMITY WITH THOSE USED TO PREPARE, THE HISTORICAL FINANCIAL
STATEMENTS OF HOLDINGS AND ITS SUBSIDIARIES REFERRED TO IN THE FIRST SENTENCE OF
SECTION 6.10(B) AND (Y) IF, AS A RESULT OF ANY CHANGE AFTER THE RESTATEMENT
EFFECTIVE DATE IN GAAP, ANY CHANGE IN SUCH ACCOUNTING PRINCIPLES AND POLICIES
USED IN THE PREPARATION OF SUCH FINANCIAL STATEMENTS OCCURS, THEN, FOLLOWING THE
REQUEST OF THE BORROWER, OR THE ADMINISTRATIVE AGENT OR THE REQUIRED LENDERS,
THE PARTIES HERETO SHALL NEGOTIATE IN GOOD FAITH MODIFICATIONS TO THE
DEFINITIONS, COVENANTS AND OTHER PROVISIONS OF THIS AGREEMENT RELATING TO THE
FINANCIAL COVENANT CALCULATIONS REQUIRED TO BE MADE UNDER THIS AGREEMENT IN
ORDER TO REFLECT THE IMPACT AND THE PROJECTED IMPACT OF SUCH CHANGE ON THE
CONSOLIDATED FINANCIAL POSITION AND RESULTS OF OPERATIONS OF HOLDINGS AND ITS
SUBSIDIARIES (AND IF AN AMENDMENT TO THIS AGREEMENT IS ENTERED INTO AS