2008
5.95:1.00
5.95:1.00
5.95:1.00
5.95:1.00
2009
5.95:1.00
5.50:1.00
5.50:1.00
5.50:1.00
2010
5.50:1.00
5.00:1.00
5.00:1.00
5.00:1.00
2011
5.00:1.00
4.50:1.00
4.50:1.00
4.50:1.00
2012
4.50:1.00
4.00:1.00
4.00:1.00
4.00:1.00
2013
4.00:1.00
4.00:1.00
4.00:1.00
4.00:1.00
SECTION 7.06. MERGER, AMALGAMATION, CONSOLIDATION OR SALE OF ALL OR
SUBSTANTIALLY ALL ASSETS. (A)
THE BORROWER MAY NOT CONSOLIDATE, MERGE OR
AMALGAMATE WITH OR INTO OR WIND UP INTO (WHETHER OR NOT THE BORROWER IS THE
SURVIVING CORPORATION), OR SELL, ASSIGN, TRANSFER, LEASE, CONVEY OR OTHERWISE
DISPOSE OF ALL OR SUBSTANTIALLY ALL OF ITS PROPERTIES OR ASSETS, IN ONE OR MORE
RELATED TRANSACTIONS, TO ANY PERSON UNLESS:
(I)
THE BORROWER IS THE SURVIVING
CORPORATION OR THE PERSON FORMED BY OR SURVIVING ANY SUCH CONSOLIDATION OR
MERGER (IF OTHER THAN THE BORROWER) OR TO WHICH SUCH SALE, ASSIGNMENT, TRANSFER,
LEASE, CONVEYANCE OR OTHER DISPOSITION WILL HAVE BEEN MADE IS A CORPORATION
ORGANIZED OR EXISTING UNDER THE LAWS OF THE JURISDICTION OF ORGANIZATION OF THE
BORROWER OR THE LAWS OF THE UNITED STATES, ANY STATE THEREOF OR THE DISTRICT OF
COLUMBIA (OR ANY TERRITORY THEREOF) (THE BORROWER OR SUCH PERSON, AS THE CASE
MAY BE, BEING HEREIN CALLED THE "SUCCESSOR BORROWER");
(II)
THE SUCCESSOR BORROWER, IF OTHER THAN THE
BORROWER, EXPRESSLY ASSUMES ALL THE OBLIGATIONS OF THE BORROWER UNDER THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS PURSUANT TO SUPPLEMENTS TO THE LOAN
DOCUMENTS OR OTHER DOCUMENTS OR INSTRUMENTS, IN EACH CASE IN A FORM REASONABLY
SATISFACTORY TO THE ADMINISTRATIVE AGENT;
(III)
IMMEDIATELY AFTER SUCH TRANSACTION, NO
DEFAULT EXISTS;
(IV)
IMMEDIATELY AFTER GIVING PRO FORMA EFFECT TO
SUCH TRANSACTION AND ANY RELATED FINANCING TRANSACTIONS, AS IF SUCH TRANSACTIONS
HAD OCCURRED AT THE BEGINNING OF THE APPLICABLE FOUR-QUARTER PERIOD, (A) EITHER
(1) THE SUCCESSOR BORROWER COULD SATISFY THE FIXED CHARGE COVERAGE RATIO
INCURRENCE TEST OR (2) THE FIXED CHARGE COVERAGE RATIO FOR THE SUCCESSOR
BORROWER WOULD BE GREATER THAN THE FIXED CHARGE COVERAGE RATIO FOR THE BORROWER
AND ITS RESTRICTED SUBSIDIARIES IMMEDIATELY PRIOR TO SUCH TRANSACTION AND
(B) THE SUCCESSOR BORROWER IS IN PRO FORMA COMPLIANCE WITH SECTION 7.05;
(V)
EACH RESTRICTED SUBSIDIARY THAT IS A
SUBSIDIARY GUARANTOR, UNLESS IT IS THE OTHER PARTY TO THE TRANSACTIONS DESCRIBED
ABOVE, IN WHICH CASE SECTION 7.06(C)(I)(B) SHALL APPLY, SHALL HAVE BY SUPPLEMENT
TO THE LOAN DOCUMENTS CONFIRMED THAT ITS GUARANTY SHALL APPLY TO SUCH PERSON'S
OBLIGATIONS UNDER THE LOAN DOCUMENTS AND THE LOANS; AND
(VI)
THE BORROWER SHALL HAVE DELIVERED TO THE
ADMINISTRATIVE AGENT AN OFFICER'S CERTIFICATE AND AN OPINION OF COUNSEL, EACH
STATING THAT SUCH CONSOLIDATION,
113
MERGER OR TRANSFER AND SUCH SUPPLEMENTS TO THE LOAN DOCUMENTS, IF ANY, COMPLY
WITH THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
(B)
THE SUCCESSOR BORROWER WILL SUCCEED TO, AND
BE SUBSTITUTED FOR THE BORROWER, AS THE CASE MAY BE, UNDER THIS AGREEMENT AND
THE OTHER LOAN DOCUMENTS. THE FOREGOING CLAUSES (III), (IV), (V) AND (VI) OF
SECTION 7.06(A) SHALL NOT APPLY TO THE MERGER CONTEMPLATED BY THE
RECAPITALIZATION AGREEMENT. NOTWITHSTANDING SECTION 7.06(A)(III) AND (IV),
(I) ANY RESTRICTED SUBSIDIARY MAY CONSOLIDATE WITH OR MERGE INTO OR TRANSFER ALL