11.12
Borrower's Right to Cure.
(A)
FINANCIAL PERFORMANCE COVENANTS.
NOTWITHSTANDING
ANYTHING TO THE CONTRARY CONTAINED IN THIS SECTION 11, IN THE EVENT THAT THE
BORROWER FAILS TO COMPLY WITH THE REQUIREMENTS OF ANY FINANCIAL PERFORMANCE
COVENANT, UNTIL THE EXPIRATION OF THE 10TH DAY SUBSEQUENT TO THE DATE THE
CERTIFICATE CALCULATING SUCH FINANCIAL PERFORMANCE COVENANT IS REQUIRED TO BE
DELIVERED PURSUANT TO SECTION 9.1(D), HOLDINGS OR THE BORROWER SHALL HAVE THE
RIGHT TO ISSUE PERMITTED CURE SECURITIES FOR CASH OR OTHERWISE RECEIVE CASH
CONTRIBUTIONS TO THE CAPITAL OF HOLDINGS OR THE BORROWER (COLLECTIVELY, THE
"CURE RIGHT"), AND UPON THE RECEIPT BY THE
104
BORROWER OF SUCH CASH (THE "CURE AMOUNT") PURSUANT TO THE EXERCISE BY THE
BORROWER OF SUCH CURE RIGHT SUCH FINANCIAL PERFORMANCE COVENANT SHALL BE
RECALCULATED GIVING EFFECT TO THE FOLLOWING PRO FORMA ADJUSTMENTS:
(I)
CONSOLIDATED EBITDA SHALL BE INCREASED, SOLELY FOR THE PURPOSE OF
MEASURING THE FINANCIAL PERFORMANCE COVENANTS AND NOT FOR ANY OTHER PURPOSE
UNDER THIS AGREEMENT, BY AN AMOUNT EQUAL TO THE CURE AMOUNT; AND
(II)
IF, AFTER GIVING EFFECT TO THE FOREGOING RECALCULATIONS, THE
BORROWER SHALL THEN BE IN COMPLIANCE WITH THE REQUIREMENTS OF ALL FINANCIAL
PERFORMANCE COVENANTS, THE BORROWER SHALL BE DEEMED TO HAVE SATISFIED THE
REQUIREMENTS OF THE FINANCIAL PERFORMANCE COVENANTS AS OF THE RELEVANT DATE OF
DETERMINATION WITH THE SAME EFFECT AS THOUGH THERE HAD BEEN NO FAILURE TO COMPLY
THEREWITH AT SUCH DATE, AND THE APPLICABLE BREACH OR DEFAULT OF THE FINANCIAL
PERFORMANCE COVENANTS THAT HAD OCCURRED SHALL BE DEEMED CURED FOR THIS PURPOSES
OF THIS AGREEMENT.
(B)
LIMITATION ON EXERCISE OF CURE RIGHT.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, (A) IN EACH FOUR FISCAL-QUARTER
PERIOD THERE SHALL BE AT LEAST TWO CONSECUTIVE FISCAL QUARTERS DURING WHICH THE
CURE RIGHT IS NOT EXERCISED AND (B) THE CURE AMOUNT SHALL BE NO GREATER THAN THE
AMOUNT REQUIRED FOR PURPOSES OF COMPLYING WITH THE FINANCIAL PERFORMANCE
COVENANTS.
SECTION 12.
The Administrative Agent
12.1
Appointment.
Each Lender hereby irrevocably designates and
appoints the Administrative Agent as the agent of such Lender under this
Agreement and the other Credit Documents, and each such Lender irrevocably
authorizes the Administrative Agent, in such capacity, to take such action on
its behalf under the provisions of this Agreement and the other Credit Documents
and to exercise such powers and perform such duties as are expressly delegated
to the Administrative Agent by the terms of this Agreement and the other Credit
Documents, together with such other powers as are reasonably incidental
thereto.
Notwithstanding any provision to the contrary elsewhere in this
Agreement, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Credit Document or otherwise exist against the
Administrative Agent.
The Syndication Agent, in its capacity as such, shall
have no obligations, duties or responsibilities under this Agreement but shall
be entitled to all benefits