IS NOT ONLY UNQUALIFIED (OTHER THAN BY
REASON OF AN EXCEPTION AS TO CONSISTENCY RELATED TO NEW ACCOUNTING
PRONOUNCEMENTS OR METHOD CHANGE UNDER GAAP) BUT ALSO DOES NOT INCLUDE ANY
EXPLANATION, SUPPLEMENTAL COMMENT OR OTHER COMMENT OR NOTE CONCERNING THE
ABILITY OF THE APPLICABLE PERSON TO CONTINUE AS A GOING CONCERN.
IF AT ANY TIME
ANY CHANGE IN GAAP WOULD AFFECT THE COMPUTATION OF ANY FINANCIAL RATIO,
REQUIREMENT OR OTHER PROVISION SET FORTH IN ANY FINANCING AGREEMENT, AND EITHER
THE LEAD BORROWER OR THE REQUIRED LENDERS SHALL SO REQUEST, THE ADMINISTRATIVE
AGENT, THE LENDERS AND THE LEAD BORROWER SHALL NEGOTIATE IN GOOD FAITH TO AMEND
SUCH RATIO, REQUIREMENT OR OTHER PROVISION TO PRESERVE THE ORIGINAL INTENT
THEREOF IN LIGHT OF SUCH CHANGE IN GAAP (SUBJECT TO THE APPROVAL OF THE REQUIRED
LENDERS); PROVIDED, THAT, UNTIL SO AMENDED, (I) SUCH RATIO, REQUIREMENT OR OTHER
PROVISION SHALL CONTINUE TO BE COMPUTED IN ACCORDANCE WITH GAAP PRIOR TO SUCH
CHANGE THEREIN AND (II) THE LEAD BORROWER 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 OF SUCH RATIO, REQUIREMENT OR OTHER
PROVISION MADE BEFORE AND AFTER GIVING EFFECT TO SUCH CHANGE IN GAAP.
185
(I)
IN THE COMPUTATION OF PERIODS OF TIME FROM A SPECIFIED DATE TO A LATER
SPECIFIED DATE, THE WORD "FROM" MEANS "FROM AND INCLUDING", THE WORDS "TO" AND
"UNTIL" EACH MEAN "TO BUT EXCLUDING" AND THE WORD "THROUGH" MEANS "TO AND
INCLUDING".
(J)
UNLESS OTHERWISE EXPRESSLY PROVIDED HEREIN, (I) REFERENCES HEREIN TO
ANY AGREEMENT, DOCUMENT OR INSTRUMENT SHALL BE DEEMED TO INCLUDE ALL SUBSEQUENT
AMENDMENTS, MODIFICATIONS, SUPPLEMENTS, EXTENSIONS, RENEWALS, RESTATEMENTS OR
REPLACEMENTS WITH RESPECT THERETO, BUT ONLY TO THE EXTENT THE SAME ARE NOT
PROHIBITED BY THE TERMS HEREOF OR OF ANY OTHER FINANCING AGREEMENT, AND
(II) REFERENCES TO ANY STATUTE OR REGULATION ARE TO BE CONSTRUED AS INCLUDING
ALL STATUTORY AND REGULATORY PROVISIONS CONSOLIDATING, AMENDING, REPLACING,
RECODIFYING, SUPPLEMENTING OR INTERPRETING THE STATUTE OR REGULATION.
(K)
THE CAPTIONS AND HEADINGS OF THIS AGREEMENT ARE FOR CONVENIENCE OF
REFERENCE ONLY AND SHALL NOT AFFECT THE INTERPRETATION OF THIS AGREEMENT.
(L)
THIS AGREEMENT AND OTHER FINANCING AGREEMENTS MAY USE SEVERAL
DIFFERENT LIMITATIONS, TESTS OR MEASUREMENTS TO REGULATE THE SAME OR SIMILAR
MATTERS.
ALL SUCH LIMITATIONS, TESTS AND MEASUREMENTS ARE CUMULATIVE AND SHALL
EACH BE PERFORMED IN ACCORDANCE WITH THEIR TERMS.
(M)
THIS AGREEMENT AND THE OTHER FINANCING AGREEMENTS ARE THE RESULT OF
NEGOTIATIONS AMONG AND HAVE BEEN REVIEWED BY COUNSEL TO ADMINISTRATIVE AGENT AND
THE OTHER PARTIES, AND ARE THE PRODUCTS OF ALL PARTIES.
ACCORDINGLY, THIS
AGREEMENT AND THE OTHER FINANCING AGREEMENTS SHALL NOT BE CONSTRUED AGAINST
ADMINISTRATIVE AGENT OR LENDERS MERELY BECAUSE OF ADMINISTRATIVE AGENT'S OR ANY
LENDER'S INVOLVEMENT IN THEIR PREPARATION.
13.3
NOTICES
.
All notices, requests and demands hereunder shall be in writing and deemed to
have been given or made:
if delivered in person, immediately upon delivery; if
by facsimile transmission, immediately upon sending and upon