FairPoint Communications 2004 Annual Report Download - page 327

or constitute a waiver of the rights of the Administrative Agent or the Lenders to any other or further action in any circumstances without notice or demand.
11.06 Payments Pro Rata. (a) The Administrative Agent agrees that promptly after its receipt of each payment from or on behalf of any
Pledge Party in respect of any Obligations of such Pledge Party hereunder, it shall distribute such payment to the Lenders (other than any Lender that has
expressly waived its right to receive its pro rata share thereof) pro rata based upon their respective shares, if any, of the Obligations with respect to which such
payment was received.
(b) Each of the Lenders agrees that, if it should receive any amount hereunder (whether by voluntary payment, by realization upon
security, 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 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 Pledge 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Lender, such purchase shall be rescinded and the purchase price restored to the extent of such recovery, but without interest.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 11.06(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.
11.07 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 (except as set forth in the notes thereto or as otherwise disclosed in
writing by the Borrower to the Lenders), provided that (x) except as otherwise specifically provided herein, all computations determining compliance with
Sections 7.11 and 7.12, 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 December 31, 2003 historical financial statements of the Borrower delivered to the Lenders pursuant to Section
5.10(b), (y) that if at any time such computations utilize accounting principles different from those utilized in the financial statements furnished to the
Lenders, such financial statements shall be accompanied by reconciliation work-sheets and (z) for purposes of calculating financial terms, all covenants and
related definitions, all such calculations based on the operations of the Borrower and its Subsidiaries on a consolidated basis shall be made without giving
effect to the operations of any Unrestricted Subsidiaries.
(b) All computations of interest and Fees hereunder shall be made on the actual number of days elapsed over a year of 360 days
(365-366 days in the case of interest on Base Rate Loans).
122