OF
THE COVENANT SET FORTH IN SECTION 10.10, UNTIL THE EXPIRATION OF THE TENTH DAY
AFTER THE DATE ON WHICH THE SECTION 9.1 FINANCIALS WITH RESPECT TO THE TEST
PERIOD IN WHICH THE COVENANT SET FORTH IN SUCH SECTION IS BEING MEASURED ARE
REQUIRED TO BE DELIVERED PURSUANT TO SECTION 9.1, ANY HOLDER OF STOCK OR STOCK
EQUIVALENTS OF THE BORROWER OR ANY DIRECT OR INDIRECT PARENT OF THE BORROWER
SHALL HAVE THE RIGHT TO MAKE A DIRECT OR INDIRECT EQUITY INVESTMENT (OTHER THAN
IN THE FORM OF DISQUALIFIED EQUITY INTERESTS) IN THE BORROWER IN CASH (THE "CURE
RIGHT"), AND UPON THE RECEIPT BY SUCH PERSON OF NET CASH PROCEEDS (THE AMOUNT OF
SUCH NET CASH PROCEEDS, THE "CURE AMOUNT"), THE COVENANT SET FORTH IN SUCH
SECTION SHALL BE RECALCULATED, GIVING EFFECT TO A PRO FORMA INCREASE TO
CONSOLIDATED EBITDA FOR SUCH TEST PERIOD IN AN AMOUNT EQUAL TO SUCH CURE AMOUNT;
PROVIDED THAT SUCH PRO FORMA ADJUSTMENT TO CONSOLIDATED EBITDA SHALL BE GIVEN
SOLELY FOR THE PURPOSE OF DETERMINING THE EXISTENCE OF A DEFAULT OR AN EVENT OF
DEFAULT UNDER THE COVENANT SET FORTH IN SUCH SECTION WITH RESPECT TO ANY TEST
PERIOD THAT INCLUDES THE FISCAL QUARTER FOR WHICH SUCH CURE RIGHT WAS EXERCISED
AND NOT FOR ANY OTHER PURPOSE UNDER ANY CREDIT DOCUMENT.
(B)
IF, AFTER THE EXERCISE OF THE CURE RIGHT AND THE RECALCULATIONS
PURSUANT TO CLAUSE (A) ABOVE, THE BORROWER SHALL THEN BE IN COMPLIANCE WITH THE
REQUIREMENTS OF THE COVENANT SET FORTH IN SECTION 10.10 DURING SUCH TEST PERIOD
(INCLUDING FOR PURPOSES OF SECTION 7.1), THE BORROWER SHALL BE DEEMED TO HAVE
SATISFIED THE REQUIREMENTS OF SUCH COVENANT 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 DEFAULT OR EVENT OF DEFAULT UNDER
SECTION 11.3 THAT HAD OCCURRED SHALL BE DEEMED CURED; PROVIDED THAT (I) IN EACH
TEST PERIOD THERE SHALL BE AT LEAST ONE FISCAL QUARTER IN WHICH NO CURE RIGHT IS
EXERCISED, AND (II) WITH RESPECT TO ANY EXERCISE OF THE CURE RIGHT, THE CURE
AMOUNT SHALL BE NO GREATER THAN THE AMOUNT REQUIRED TO CAUSE THE BORROWER TO BE
IN COMPLIANCE WITH THE COVENANT SET FORTH IN SECTION 10.10.
119
SECTION 12.
THE AGENTS
12.1.
APPOINTMENT.
(A)
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 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. THE PROVISIONS OF THIS SECTION 12
(OTHER THAN SECTION 12.1(C) WITH RESPECT TO THE JOINT LEAD ARRANGERS AND SECTION
12.9 WITH RESPECT TO THE BORROWER) ARE