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(a)
the Person acquiring the property in any such sale or disposition or the Person formed by or surviving
any such consolidation, amalgamation or merger (if other than the Issuer or another Guarantor)
unconditionally assumes, pursuant to a supplemental indenture substantially in the form specified in the
Indenture, all the obligations of such Guarantor under such Indenture and its Note Guarantee on terms
set forth therein; or
(b)
the Net Proceeds of such sale or other disposition are applied in accordance with the provisions of the
Indenture described under the caption "—
Repurchase at the Option of Noteholders—Asset Sales
".
The surviving entity will succeed to, and be substituted for, and may exercise every right and power of, the Issuer under
the Indenture, but, in the case of a lease of all or substantially all of its assets, the Issuer will not be released from the
obligation to pay the principal of and interest and premium, if any, on the Notes.
Although there is a limited body of case law interpreting the phrase "substantially all", there is no precise established
definition of the phrase under applicable law. Accordingly, in certain circumstances there may be a degree of uncertainty
as to whether a particular transaction would involve "all or substantially all" of the properties or assets of a Person.
Clauses (3) and (4) of the first paragraph of this covenant will not apply to any merger, consolidation or amalgamation of
the Issuer or any Restricted Subsidiary with or into an Affiliate solely for the purpose of reincorporating the Issuer or
such Restricted Subsidiary in another jurisdiction. Nothing in the Indenture will prevent and this covenant will not apply
to (i) any Restricted Subsidiary consolidating or amalgamating with, merging with or into or disposing of all or part of its
properties or assets to the Issuer, (ii) the Issuer merging with or into a Restricted Subsidiary for the purpose of
reincorporating the Issuer in another jurisdiction, and (iii) any Restricted Subsidiary consolidating or amalgamating with,
merging with or into or disposing of all or part of its properties or assets to another Restricted Subsidiary.
Transactions with Affiliates
The Issuer will not, and will not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer
or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or
amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any
Affiliate of the Issuer (each, an "
Affiliate Transaction
") involving aggregate payments or consideration in excess of
$3.0 million, unless:
(1)
the Affiliate Transaction is on terms that are no less favorable to the Issuer or the relevant Restricted Subsidiary
than those that would have been obtained in a comparable transaction by the Issuer or such Restricted
Subsidiary with an unrelated Person (as determined in good faith by a responsible accounting or financial
officer of the Issuer); and
(2)
the Issuer delivers to the Trustee:
(a)
with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate
consideration in excess of $15.0 million, a resolution of the Board of Directors of the Issuer set forth in
an officer's certificate certifying that such Affiliate Transaction complies with this covenant and that
such Affiliate Transaction has been approved by a majority of the disinterested members of the Board
of Directors of the Issuer; and
(b)
with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate
consideration in excess of $30.0 million, an opinion of an accounting, appraisal or investment banking
firm of national standing, or other recognized independent expert of national standing with experience
appraising the terms and conditions of the type of transaction or series of related transactions for which
an opinion is required, stating that the transaction or series of related transactions is (i) fair to the Issuer
or such Restricted Subsidiary from a financial point of view taking into account all relevant
circumstances or (ii) on terms not less favorable than might have been obtained in a comparable
transaction at such time on an arm's length basis from a Person who is not an Affiliate.
The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions
of the prior paragraph:
(1)
any employment agreement or arrangement, collective bargaining agreement, consultant agreement, stock
option, stock appreciation, stock incentive or stock ownership or similar plan, employee benefit arrangements,
officer or director indemnification agreement, restricted stock agreement, severance agreement or other
compensation plan or arrangement, in each case entered into by the Issuer or any of its Restricted Subsidiaries
in the ordinary course of business (as determined in good faith by a responsible financial or accounting officer
of the Issuer) with officers, directors, consultants or employees of the Issuer and its Restricted Subsidiaries
and payments, awards, grants or issuances of securities pursuant thereto;
(2)
transactions between or among the Issuer and/or its Restricted Subsidiaries;
(3)
Management Advances;
