WITH THE
EXERCISE OF STOCK OPTIONS), PROVIDED THAT, AFTER GIVING EFFECT TO THE
TRANSACTION INCLUDING SUCH RESTRICTED PAYMENTS ON A PRO FORMA BASIS AS OF THE
LAST DAY OF THE FISCAL QUARTER MOST RECENTLY ENDED, THE COMPANY SHALL BE IN
COMPLIANCE WITH SECTION 9.08 AND NO DEFAULT OR EVENT OF DEFAULT SHALL HAVE
OCCURRED AND THEN BE CONTINUING.
9.08
FINANCIAL COVENANTS.
(A)
MAXIMUM TOTAL LEVERAGE RATIO.
THE GROUP WILL MAINTAIN A TOTAL LEVERAGE
RATIO THE ROLLING PERIOD ENDING ON THE LAST DAY OF ANY FISCAL QUARTER OF THE
FISCAL YEARS SET FORTH BELOW OF NOT MORE THAN THE AMOUNT SET FORTH BELOW
OPPOSITE THE RELEVANT FISCAL YEAR IN WHICH SUCH PERIOD ENDS:
Fiscal Year
Total Leverage Ratio
2004
3.75 to 1.0
2005
3.50 to 1.0
2006
3.25 to 1.0
2007 and thereafter
3.00 to 1.0
(B)
MINIMUM FIXED CHARGE COVERAGE RATIO.
THE GROUP WILL MAINTAIN A FIXED
CHARGE COVERAGE RATIO FOR THE ROLLING PERIOD ENDING ON THE LAST DAY OF ANY
FISCAL QUARTER OF THE COMPANY OF NOT LESS THAN 1.05 TO 1.0.
(C)
MINIMUM INTEREST COVERAGE RATIO.
THE GROUP WILL MAINTAIN AN INTEREST
COVERAGE RATIO FOR THE ROLLING PERIOD ENDING ON THE LAST DAY OF ANY FISCAL
QUARTER OF THE COMPANY OF NOT LESS THAN 3.0 TO 1.0.
(D)
IN THE EVENT THAT THE COMPANY OR ANY GROUP MEMBER REFINANCES OR AMENDS THE
FINANCIAL COVENANTS CONTAINED IN ANY SENIOR LOAN AGREEMENT, THE PURCHASERS SHALL
HAVE THE RIGHT, BUT NOT THE OBLIGATION, TO REQUIRE THE COMPANY TO AGREE TO AN
AMENDMENT OF THE COVENANT LEVELS OR THE COVENANTS CONTAINED IN THIS SECTION 9.08
(INCLUDING ANY ADDITIONAL COVENANTS THAT THE REQUIRED PURCHASERS MAY REASONABLY
REQUIRE) SO THAT SUCH COVENANT LEVELS AND COVENANTS (OR ANY OF THEM) WILL BE
CONFORMED TO THOSE CONTAINED IN SUCH SENIOR LOAN AGREEMENT, PROVIDED THAT (I)
SUCH REVISED COVENANT LEVELS (AND SUCH ADDITIONAL COVENANTS) SHALL BE LESS
RESTRICTIVE ON THE COMPANY THAN THE COVENANT LEVELS CONTAINED IN SUCH REFINANCED
SENIOR LOAN AGREEMENT BY A MARGIN OF NO LESS THAN 10% AND (II) SUCH AMENDMENT
SHALL ALSO MAKE SUCH CHANGES TO THE DEFINITIONS USED IN THIS SECTION 9.08, AS SO
AMENDED, AS THE REQUIRED PURCHASERS SHALL REASONABLY REQUEST CONSISTENT
HEREWITH.
THE COMPANY AND ANY GUARANTOR SHALL EXECUTE
49
AND DELIVER ANY SUCH AMENDMENT OF THIS SECTION 9.08 NO LATER THAN 10 BUSINESS
DAYS AFTER ANY PURCHASER'S REQUEST IN ACCORDANCE HEREWITH.
9.09
EMPLOYEE BENEFIT PLANS.
THE COMPANY SHALL NOT, AND
SHALL NOT PERMIT ANY OF ITS SUBSIDIARIES OR ANY ERISA AFFILIATE TO, WITHOUT THE
PRIOR APPROVAL OF THE PURCHASER (A) ESTABLISH OR MATERIALLY INCREASE ITS
OBLIGATIONS UNDER, ANY (I) PLAN; (II) WELFARE PLAN WHICH PROVIDES
POST-RETIREMENT WELFARE BENEFITS (OTHER THAN AS REQUIRED BY SECTION 601 OF ERISA
OR THE LAWS OF ANY FOREIGN JURISDICTION) OR (III) EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT WHICH PROVIDES "PARACHUTE PAYMENTS" (WITHIN THE MEANING OF
SECTION 280G(B) OF THE CODE); (B) ENGAGE IN ANY PROHIBITED TRANSACTION, FAIL TO
OPERATE ANY EMPLOYEE BENEFIT PLAN IN COMPLIANCE WITH ITS TERMS OR APPLICABLE
LAW, OR ENGAGE IN