THE ADMINISTRATIVE AGENT A
CERTIFICATE ON BEHALF OF SUCH OBLIGOR SIGNED BY ONE OF ITS RESPONSIBLE OFFICERS
AND AN OPINION OF
41
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, the
Spin Distribution shall not 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 relieved of and released from its obligations under this
Agreement and the other Loan Documents.
(B)
THE GUARANTOR SHALL NOT CONSUMMATE EITHER SPIN DISTRIBUTION UNLESS
UPON SUCH DISTRIBUTION THE E GUARANTOR OR THE H GUARANTOR, AS APPLICABLE, SHALL
ASSUME THE OBLIGATIONS OF THE GUARANTOR UNDER ITS GUARANTEE OF THE OBLIGATIONS
OF THE E BORROWER OR THE H BORROWER, AS APPLICABLE, UNDER THE RELEVANT OTHER
CREDIT AGREEMENT AND THE RELEVANT OTHER BRIDGE LOAN AGREEMENT, PURSUANT TO AN
ASSUMPTION AGREEMENT THAT PROVIDES THAT THE GUARANTOR SHALL BE RELIEVED OF AND
RELEASED FROM ITS OBLIGATIONS UNDER SUCH OTHER CREDIT AGREEMENT AND SUCH OTHER
BRIDGE LOAN AGREEMENT IN RESPECT OF THE OBLIGATIONS OF THE E BORROWER OR THE H
BORROWER, AS APPLICABLE.
SECTION 5.09
FINANCIAL COVENANT.
(A)
LEVERAGE.
THE GUARANTOR WILL NOT PERMIT AT ANY TIME THE RATIO OF
(X) CONSOLIDATED TOTAL DEBT AT SUCH TIME TO (Y) CONSOLIDATED EBITDA FOR THE THEN
MOST RECENTLY CONCLUDED PERIOD OF FOUR CONSECUTIVE FISCAL QUARTERS OF THE
GUARANTOR TO EXCEED 3.50 TO 1.00.
SECTION 5.10
LIMITATION ON RESTRICTIONS ON SUBSIDIARY DIVIDENDS AND
OTHER DISTRIBUTIONS.
THE GUARANTOR WILL NOT, AND WILL NOT PERMIT ANY SUBSIDIARY
TO, DIRECTLY OR INDIRECTLY, CREATE OR OTHERWISE CAUSE OR SUFFER TO EXIST OR
BECOME EFFECTIVE ANY ENCUMBRANCE OR RESTRICTION ON THE ABILITY OF ANY
SUBSIDIARY, OTHER THAN THE BORROWER, TO (A) PAY DIVIDENDS OR MAKE ANY OTHER
DISTRIBUTIONS ON ITS CAPITAL STOCK OR ANY OTHER INTEREST OR PARTICIPATION IN ITS
PROFITS, OWNED BY THE GUARANTOR OR ANY SUBSIDIARY, OR PAY ANY DEBT OWED BY ANY
SUBSIDIARY TO THE GUARANTOR OR ANY SUBSIDIARY, (B) MAKE LOANS OR ADVANCES TO THE
GUARANTOR OR ANY SUBSIDIARY OR (C) TRANSFER ANY OF ITS PROPERTIES OR ASSETS TO
THE GUARANTOR OR ANY SUBSIDIARY (OR, SOLELY IN THE CASE OF CLAUSE (XII) HEREOF,
ANY OTHER CONSOLIDATED PERSON IN RESPECT OF SUCH NONRECOURSE DEBT), EXCEPT FOR
SUCH ENCUMBRANCES OR RESTRICTIONS EXISTING UNDER OR BY REASON OF:
(i)
applicable laws and regulations, judgments and orders and other
legal requirements, agreements with non-U.S. governments with respect to assets
or businesses located