THE DESIRED RESULT THAT
THE CRITERIA FOR EVALUATING THE FINANCIAL CONDITION OF BORROWER SHALL BE THE
SAME AFTER SUCH ACCOUNTING CHANGES AS IF SUCH ACCOUNTING CHANGES HAD NOT BEEN
MADE, AND UNTIL SUCH TIME AS SUCH AN AMENDMENT SHALL HAVE BEEN EXECUTED AND
DELIVERED BY BORROWER AND REQUISITE LENDERS, (A) ALL FINANCIAL COVENANTS,
STANDARDS AND TERMS IN THIS AGREEMENT SHALL BE CALCULATED AND/OR CONSTRUED AS IF
SUCH ACCOUNTING CHANGES HAD NOT BEEN MADE, AND (B) BORROWER SHALL PREPARE
FOOTNOTES TO EACH COMPLIANCE CERTIFICATE AND THE FINANCIAL STATEMENTS REQUIRED
TO BE DELIVERED HEREUNDER THAT SHOW THE DIFFERENCES BETWEEN THE CERTIFICATE OR
FINANCIAL STATEMENTS DELIVERED (WHICH REFLECT SUCH ACCOUNTING CHANGES) AND THE
BASIS FOR CALCULATING FINANCIAL COVENANT COMPLIANCE (WITHOUT REFLECTING SUCH
ACCOUNTING CHANGES). "ACCOUNTING CHANGES" MEANS: (A) CHANGES IN ACCOUNTING
PRINCIPLES REQUIRED BY GAAP AND IMPLEMENTED BY HOLDINGS; (B) CHANGES IN
ACCOUNTING PRINCIPLES RECOMMENDED BY HOLDINGS' ACCOUNTANTS; AND (C) CHANGES IN
CARRYING VALUE OF HOLDINGS' OR ANY OF ITS SUBSIDIARIES' ASSETS, LIABILITIES OR
EQUITY ACCOUNTS RESULTING FROM (I) THE APPLICATION OF PURCHASE ACCOUNTING
PRINCIPLES (A.P.B. 16 AND/OR 17 AND EITF 88-16 AND FASB 109) TO THE RELATED
TRANSACTIONS OR (II) ANY OTHER ADJUSTMENTS THAT, IN EACH CASE, WERE APPLICABLE
TO, BUT NOT INCLUDED IN, THE PRO FORMA.
ALL SUCH ADJUSTMENTS RESULTING FROM
EXPENDITURES MADE SUBSEQUENT TO THE CLOSING DATE (INCLUDING, BUT NOT LIMITED TO,
CAPITALIZATION OF COSTS AND EXPENSES OR PAYMENT OF PRE-CLOSING DATE LIABILITIES)
SHALL BE TREATED AS EXPENSES IN THE PERIOD THE EXPENDITURES ARE MADE AND
DEDUCTED AS PART OF THE CALCULATION OF EBITDA IN SUCH PERIOD.
86
11.3
OTHER DEFINITIONAL PROVISIONS.
REFERENCES TO
"SECTIONS", "SUBSECTIONS", "RIDERS", "EXHIBITS", "SCHEDULES" AND "ADDENDUMS"
SHALL BE TO SECTIONS, SUBSECTIONS, RIDERS, EXHIBITS,
SCHEDULES AND ADDENDUMS,
RESPECTIVELY, OF THIS AGREEMENT UNLESS OTHERWISE SPECIFICALLY PROVIDED.
ANY OF
THE TERMS DEFINED IN SUBSECTION 11.1 MAY, UNLESS THE CONTEXT OTHERWISE REQUIRES,
BE USED IN THE SINGULAR OR THE PLURAL DEPENDING ON THE REFERENCE.
IN THIS
AGREEMENT, WORDS IMPORTING ANY GENDER INCLUDE THE OTHER GENDERS; THE WORDS
"INCLUDING," "INCLUDES" AND "INCLUDE" SHALL BE DEEMED TO BE FOLLOWED BY THE
WORDS "WITHOUT LIMITATION"; REFERENCES TO AGREEMENTS AND OTHER CONTRACTUAL
INSTRUMENTS SHALL BE DEEMED TO INCLUDE SUBSEQUENT AMENDMENTS, ASSIGNMENTS, AND
OTHER MODIFICATIONS THERETO, BUT ONLY TO THE EXTENT SUCH AMENDMENTS, ASSIGNMENTS
AND OTHER MODIFICATIONS ARE NOT PROHIBITED BY THE TERMS OF THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT; REFERENCES TO PERSONS INCLUDE THEIR RESPECTIVE PERMITTED
SUCCESSORS AND ASSIGNS OR, IN THE CASE OF GOVERNMENTAL PERSONS, PERSONS
SUCCEEDING TO THE RELEVANT FUNCTIONS OF SUCH PERSONS; AND ALL REFERENCES TO
STATUTES AND RELATED REGULATIONS SHALL INCLUDE ANY AMENDMENTS OF SAME AND ANY
SUCCESSOR STATUTES AND REGULATIONS.
SECTION 12.
GUARANTY
12.1
GUARANTY.
EACH DOMESTIC SUBSIDIARY GUARANTOR
HEREBY AGREES THAT SUCH DOMESTIC SUBSIDIARY GUARANTOR IS JOINTLY AND SEVERALLY
LIABLE FOR, AND HEREBY ABSOLUTELY AND UNCONDITIONALLY GUARANTEES TO AGENT AND
LENDERS, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, THE FULL AND PROMPT
PAYMENT WHEN DUE (WHETHER AT STATED MATURITY, BY ACCELERATION OR OTHERWISE), AND
PERFORMANCE OF, ALL OBLIGATIONS OWED OR HEREAFTER OWING BY BORROWER TO AGENT