IN THE EVENT
THAT HOLDINGS 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 5.04(C), HOLDINGS SHALL HAVE THE RIGHT TO ISSUE
PERMITTED CURE SECURITIES FOR CASH OR OTHERWISE RECEIVE CASH CONTRIBUTIONS TO
THE CAPITAL OF HOLDINGS, AND, IN EACH CASE, TO CONTRIBUTE ANY SUCH CASH TO THE
CAPITAL OF THE COMPANY (COLLECTIVELY, THE "CURE RIGHT"), AND UPON THE RECEIPT BY
COMPANY OF SUCH CASH (THE "CURE AMOUNT") PURSUANT TO THE EXERCISE BY HOLDINGS OF
SUCH CURE RIGHT AND REQUEST TO THE ADMINISTRATIVE AGENT TO EFFECT SUCH
RECALCULATION, SUCH FINANCIAL PERFORMANCE COVENANT SHALL BE RECALCULATED GIVING
EFFECT TO THE FOLLOWING PRO FORMA ADJUSTMENTS:
(I)
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, HOLDINGS SHALL THEN BE IN COMPLIANCE WITH THE REQUIREMENTS OF
ALL FINANCIAL PERFORMANCE COVENANTS, HOLDINGS 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 THE 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 ONE FISCAL QUARTER IN WHICH THE CURE RIGHT IS NOT
EXERCISED, (B) IN EACH EIGHT-FISCAL-QUARTER PERIOD, THERE SHALL BE A PERIOD OF
AT LEAST FOUR CONSECUTIVE FISCAL QUARTERS DURING WHICH THE CURE RIGHT IS NOT
EXERCISED, (C) THE CURE AMOUNT SHALL BE NO GREATER THAN THE AMOUNT REQUIRED FOR
PURPOSES OF COMPLYING WITH THE FINANCIAL PERFORMANCE COVENANTS, (D) IN EACH 12
MONTH PERIOD, THE MAXIMUM AGGREGATE CURE AMOUNT FOR ALL EXERCISES SHALL NOT
EXCEED €200 MILLION AND (E) NO INDEBTEDNESS REPAID WITH
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THE PROCEEDS OF PERMITTED CURE SECURITIES SHALL BE DEEMED REPAID FOR PURPOSES OF
CALCULATING THE RATIOS SPECIFIED IN SECTION 6.11 OR 6.12 FOR THE PERIOD DURING
WHICH SUCH PERMITTED CURE SECURITIES WERE ISSUED.
ARTICLE VIII
The Agents
SECTION 8.01
Appointment.
(a)
In order to expedite the transactions
contemplated by this Agreement, DBNY is hereby appointed to act as
Administrative Agent (with each reference in this Article to Administrative
Agent to include DBNY in its capacity as Collateral Agent).
Each of the Lenders
and each assignee of any such Lender hereby irrevocably authorizes the
Administrative Agent to take such actions on behalf of such Lender or assignee
and to exercise such powers as are specifically delegated to the Administrative
Agent by the terms and provisions hereof and of the other Loan Documents,
together with such actions and powers as are reasonably incidental thereto.
The
Administrative