DEFAULT OR EVENT OF
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, THE SUCCESSOR COMPANY WOULD BE
PERMITTED TO INCUR AT LEAST $1.00 OF ADDITIONAL INDEBTEDNESS PURSUANT TO THE
TOTAL NET LEVERAGE TEST DESCRIBED IN SECTION 6.01(A), IN EACH CASE MADE OR
EFFECTED SUBSTANTIALLY SIMULTANEOUSLY WITH SUCH TRANSACTION OR RELATED
FINANCING;
(V)
EACH GUARANTOR, UNLESS IT IS THE OTHER PARTY TO THE TRANSACTIONS
DESCRIBED ABOVE, IN WHICH CASE SECTION 6.04(C)(I)(B) SHALL APPLY, SHALL HAVE
CONFIRMED THAT ITS OBLIGATIONS UNDER THE LOAN DOCUMENTS TO WHICH IT IS A PARTY
PURSUANT TO DOCUMENTATION REASONABLY SATISFACTORY TO THE ADMINISTRATIVE AGENT;
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, MERGER OR TRANSFER AND SUCH DOCUMENTATION RELATING TO THE LOAN
DOCUMENTS, IF ANY, COMPLY WITH THIS AGREEMENT;
provided that the Borrower shall promptly notify the Administrative Agent of any
such transaction and shall take all required actions either prior to or upon the
later to occur of 30 days following such transaction (or the earlier of the date
of the required delivery of the next Pricing Certificate and the date which is
45 days after the end of the most recently ended fiscal quarter (or such longer
period as to which the Administrative Agent may consent) in order to preserve
and protect the Liens on the Collateral securing the Secured Obligations.
The Successor Company will succeed to, and be substituted for the Borrower under
the Loan Documents.
Notwithstanding the foregoing, clauses (a)(iii) and (a)(iv)
shall not apply to the Transactions (including the Merger).
(B)
NOTWITHSTANDING THE FOREGOING PARAGRAPHS (A)(III) AND (A)(IV),
122
(I)
THE BORROWER OR A RESTRICTED SUBSIDIARY MAY CONSOLIDATE WITH OR
MERGE INTO OR TRANSFER ALL OR PART OF ITS PROPERTIES AND ASSETS TO THE BORROWER
OR A RESTRICTED GUARANTOR;
(II)
THE BORROWER MAY MERGE WITH AN AFFILIATE OF THE BORROWER SOLELY
FOR THE PURPOSE OF REORGANIZING THE BORROWER IN A STATE OF THE UNITED STATES SO
LONG AS THE AMOUNT OF INDEBTEDNESS OF THE BORROWER AND ITS RESTRICTED
SUBSIDIARIES IS NOT INCREASED THEREBY; AND
(III)
ANY FOREIGN SUBSIDIARY MAY CONSOLIDATE WITH OR MERGE INTO OR
TRANSFER ALL OR ANY PART OF ITS ASSETS TO ANY OTHER FOREIGN SUBSIDIARY.
(C)
NO RESTRICTED GUARANTOR WILL, AND THE BORROWER WILL NOT PERMIT ANY
RESTRICTED GUARANTOR TO, CONSOLIDATE OR MERGE WITH OR INTO OR WIND UP INTO
(WHETHER OR NOT THE BORROWER OR RESTRICTED GUARANTOR 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)
(A)
SUCH RESTRICTED GUARANTOR IS THE SURVIVING CORPORATION OR
THE PERSON FORMED BY OR SURVIVING ANY SUCH CONSOLIDATION OR MERGER (IF OTHER
THAN SUCH RESTRICTED GUARANTOR) OR TO WHICH SUCH SALE, ASSIGNMENT, TRANSFER,
LEASE, CONVEYANCE OR OTHER