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:
(1)
EITHER:
(X) THE BORROWER IS THE SURVIVING ENTITY; OR (Y) 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 AN ENTITY ORGANIZED OR EXISTING UNDER
THE LAWS OF THE JURISDICTION OF ORGANIZATION OF THE BORROWER OR THE LAWS OF THE
UNITED STATES, ANY STATE THEREOF, THE DISTRICT OF COLUMBIA OR ANY TERRITORY
THEREOF (SUCH PERSON, AS THE CASE MAY BE, BEING HEREIN CALLED THE "SUCCESSOR
BORROWER"); PROVIDED THAT IF THE SURVIVING PERSON IS NOT A CORPORATION, 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, THE DISTRICT OF COLUMBIA OR ANY TERRITORY THEREOF SHALL BE A
CO-BORROWER OF THE LOANS;
(2)
THE SUCCESSOR BORROWER, IF OTHER THAN THE BORROWER, EXPRESSLY
ASSUMES ALL THE OBLIGATIONS OF THE BORROWER UNDER THE LOANS PURSUANT TO A
SUPPLEMENTAL AGREEMENT OR OTHER DOCUMENTS OR INSTRUMENTS IN FORM REASONABLY
SATISFACTORY TO THE ADMINISTRATIVE AGENT;
(3)
IMMEDIATELY AFTER SUCH TRANSACTION, NO DEFAULT EXISTS;
(4)
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)
the Successor Borrower would be permitted to
incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge
Coverage Ratio test set forth in Section 9.7(a) hereof, or
99
(B)
the Fixed Charge Coverage Ratio for the
Successor Borrower, the Borrower and its Restricted Subsidiaries would be
greater than such ratio for the Borrower and its Restricted Subsidiaries
immediately prior to such transaction;
(5)
each Guarantor, unless it is the other
party to the transactions described above, in which case Section 9.14(c)(1)(B)
hereof shall apply, shall have by supplemental agreement confirmed that its
Guarantee shall apply to such Person's obligations under this Agreement and the
Loans; and
(6)
the Borrower shall have delivered to the
Administrative Agent an Officer's Certificate stating that such consolidation,
merger or transfer and such supplemental agreements, if any, comply with this
Agreement and, if a supplemental agreement is required in connection with such
transaction, such supplement shall comply with the applicable provisions of this
Agreement.
(B)
THE SUCCESSOR BORROWER SHALL SUCCEED TO, AND BE
SUBSTITUTED FOR THE BORROWER, AS THE CASE MAY BE, UNDER THIS AGREEMENT, THE
GUARANTEES, THE LOANS, THE SENIOR SUBORDINATED REFINANCING INDENTURE AND THE
SENIOR SUBORDINATED NOTES AS APPLICABLE. NOTWITHSTANDING CLAUSES (3) AND (4) OF
SECTION 9.14(A) HEREOF,
(1)
ANY RESTRICTED SUBSIDIARY MAY CONSOLIDATE
WITH OR MERGE INTO OR TRANSFER ALL OR PART OF ITS PROPERTIES AND ASSETS TO THE
BORROWER, AND
(2)
THE BORROWER MAY MERGE WITH AN AFFILIATE