pursuant to the
foregoing provisions of this Section 5.07 may attach to the proceeds of such
asset and, with respect to Liens permitted pursuant to subsections (a), (b),
(d), (e) (but only with respect to the Refinancing of Debt secured by a Lien
permitted pursuant to subsections (a), (b), (d)) or (f) of this Section 5.07,
may attach to an asset acquired in the ordinary course of business as a
replacement of such former asset.
SECTION 5.08
FUNDAMENTAL CHANGES.
(A)
NO OBLIGOR WILL CONSOLIDATE, AMALGAMATE OR MERGE WITH OR INTO ANY
OTHER PERSON OR SELL, LEASE OR OTHERWISE TRANSFER ALL OR SUBSTANTIALLY ALL OF
THE CONSOLIDATED ASSETS TO ANY OTHER PERSON, UNLESS
(I)
SUCH OBLIGOR IS THE SURVIVING CORPORATION, OR THE PERSON (IF OTHER
THAN SUCH OBLIGOR) FORMED BY SUCH CONSOLIDATION OR AMALGAMATION OR INTO WHICH
SUCH OBLIGOR IS MERGED OR AMALGAMATED, OR THE PERSON WHICH ACQUIRES BY SALE OR
OTHER TRANSFER, OR WHICH LEASES, ALL OR SUBSTANTIALLY ALL OF THE ASSETS OF SUCH
OBLIGOR (ANY SUCH PERSON, THE "SUCCESSOR"), SHALL BE ORGANIZED AND EXISTING
UNDER THE LAWS OF (A) IN THE CASE OF A SUCCESSOR TO THE BORROWER, LUXEMBOURG OR
THE UNITED STATES, ANY STATE THEREOF OR THE
37
DISTRICT OF COLUMBIA OR (B) IN THE CASE OF A SUCCESSOR TO THE GUARANTOR, BERMUDA
OR OF THE UNITED STATES, ANY STATE THEREOF OR THE DISTRICT OF COLUMBIA AND SHALL
EXPRESSLY ASSUME, IN A WRITING EXECUTED AND DELIVERED TO THE ADMINISTRATIVE
AGENT FOR DELIVERY TO EACH OF THE LENDERS, IN FORM REASONABLY SATISFACTORY TO
THE ADMINISTRATIVE AGENT, THE DUE AND PUNCTUAL PAYMENT OF THE PRINCIPAL OF AND
INTEREST ON THE LOANS AND THE PERFORMANCE OF THE OTHER OBLIGATIONS UNDER THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS ON THE PART OF SUCH OBLIGOR TO BE
PERFORMED OR OBSERVED, AS FULLY AS IF SUCH SUCCESSOR WERE ORIGINALLY NAMED AS
SUCH OBLIGOR IN THIS AGREEMENT OR SUCH OTHER LOAN DOCUMENT; AND
(II)
IMMEDIATELY AFTER GIVING EFFECT TO SUCH TRANSACTION, NO DEFAULT
SHALL HAVE OCCURRED AND BE CONTINUING; AND
(III)
SUCH OBLIGOR HAS DELIVERED TO THE ADMINISTRATIVE AGENT A
CERTIFICATE ON BEHALF OF SUCH OBLIGOR SIGNED BY ONE OF ITS RESPONSIBLE OFFICERS
AND AN OPINION OF COUNSEL, EACH STATING THAT ALL CONDITIONS PROVIDED IN THIS
SECTION 5.08 RELATING TO SUCH TRANSACTION HAVE BEEN SATISFIED;
provided, however, that nothing in this Section 5.08(a)
shall prohibit the
Separation Transactions.
Without limiting the generality of the foregoing,
neither Spin Distribution shall be deemed to be a transfer of all or
substantially all of the Consolidated assets of either Obligor.
Upon the
satisfaction (or waiver) of the conditions set forth in this Section 5.08(a), a
Successor to the Borrower or the Guarantor shall succeed, and may exercise every
right and power of, the Borrower or the Guarantor under this Agreement and the
other Loan Documents with the same effect as if such Successor had been
originally named as the Borrower or the Guarantor herein, and the Borrower or
the Guarantor, as the case may be, shall be