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adversely affect in any material respect, the Issuer's ability to make principal or interest payments on the Notes
as they become due (in each case, as determined in good faith by a responsible accounting or financial officer
of the Issuer);
(12)
supermajority voting requirements existing under corporate charters, bylaws, stockholders agreements, joint
venture agreements and similar documents and agreements;
(13)
customary provisions restricting subletting or assignment of any lease governing a leasehold interest;
(14)
encumbrances or restrictions contained in Hedging Obligations permitted from time to time under the
Indenture;
(15)
restrictions on cash or other deposits or net worth imposed by customers or suppliers or required by insurance,
surety or bonding companies, in each case under contracts entered into in the ordinary course of business; and
(16)
any encumbrance or restriction existing under any agreement that extends, renews, refinances or replaces the
agreements containing the encumbrances or restrictions in the foregoing clauses (1) through (15), or in this
clause (16);
provided
that the terms and conditions of any such encumbrances or restrictions are not materially
more restrictive taken as a whole with respect to such dividend and other payment restrictions than those
under or pursuant to the agreement so extended, renewed, refinanced or replaced as determined in good faith
by a responsible accounting or financial officer of the Issuer).
Merger, Consolidation or Sale of Assets
The Issuer
The Issuer will not, directly or indirectly (i) consolidate, amalgamate or merge with or into another Person (whether or
not the Issuer is the surviving corporation) or (ii) sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of the properties or assets of the Issuer and its Restricted Subsidiaries, taken as a whole, in one or more
related transactions, to another Person, unless:
(1)
either: (a) the Issuer is the surviving corporation; or (b) the Person formed by or surviving any such
consolidation, amalgamation or merger (if other than the Issuer) or to which such sale, assignment, transfer,
lease, conveyance or other disposition has been made is an entity organized or existing under the laws of any
member state of the European Union as in effect on 31 December 2003, British Virgin Islands, Switzerland,
Norway, Australia, Japan, Canada, Gulf Cooperation Council, any state of the United States or the District of
Columbia;
(2)
the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issuer)
or the Person to which such sale, assignment, transfer, conveyance, lease or other disposition has been made
assumes all the obligations of the Issuer under the Notes and the Indenture;
(3)
immediately after such transaction or transactions, no Default or Event of Default exists;
(4)
the Issuer or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than
the Issuer), or to which such sale, assignment, transfer, conveyance, lease or other disposition has been made
would, on the date of such transaction after giving
pro forma
effect thereto and any related financing
transactions as if the same had occurred at the beginning of the applicable four-quarter period (i) be permitted
to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in
the first paragraph of the covenant described above under the caption "—
Incurrence of Indebtedness and
Issuance of Preferred Stock
"; or (ii) have a Fixed Charge Coverage Ratio not less than it was immediately
prior to giving effect to such transaction;
(5)
each Guarantor (unless it is the other party to the transactions above, in which case clause (2) shall apply)
shall have by supplemental indenture confirmed that its Note Guarantee shall apply to such Person's
obligations in respect of the Indenture and the Notes and shall continue to be in effect; and
(6)
the Issuer shall have delivered to the Trustee an officer's certificate and an opinion of counsel, each stating
that such consolidation, amalgamation, merger or transfer and such supplemental indenture (if any) comply
with this covenant;
provided
that in giving an opinion of counsel, counsel may rely on an officer's certificate
as to any matters of fact.
The Guarantors
A Guarantor (other than a Guarantor whose Note Guarantee is to be released in accordance with the terms of the Note
Guarantee and the Indenture as described under the caption "—Note Guarantees Release") may not sell or otherwise
dispose of all or substantially all of its properties or assets to, or consolidate with or merge with or into (whether or not
such Guarantor is the surviving Person), another Person, other than the Issuer or another Guarantor, unless:
(1)
immediately after giving effect to that transaction, no Default or Event of Default exists; and
(2)
either:
