Common use of Consolidation, Merger or Sale of Assets Clause in Contracts

Consolidation, Merger or Sale of Assets. So long as the Note remains outstanding and unpaid, the Company will not consolidate with or permit itself to be merged into any other corporation or corporations, or sell, lease, transfer or otherwise dispose of all or substantially all of its properties and assets, except in the manner and upon the terms and conditions set forth in this Section 5.18. Nothing contained herein or in the Note shall prevent (and the Note shall be construed as permitting and authorizing, without acceleration of the maturity of the Note) any lawful consolidation or merger of the Company with or into any other corporation or corporations lawfully authorized to acquire and operate the properties of the Company, or a series of consolidations or mergers, or successive consolidations or mergers, in which the Company or its successor or successors shall be a party, or any sale of all or substantially all the properties of the Company as an entirety to a corporation lawfully authorized to acquire and operate the same; provided that, upon any consolidation, merger or sale, the corporation formed by such consolidation, or into which such merger may be made if other than the Company, or making such purchase shall execute and deliver to the Trustee an instrument, in form reasonably satisfactory to the Trustee, whereby such corporation shall effectually assume the due and punctual payment of the principal of and premium, if any, and interest on the Note according to its tenor and the due and punctual performance and observance of all covenants and agreements to be performed by the Company pursuant to the Note and the Participation Agreement on the part of the Company to be performed and observed; and, thereupon, such corporation shall succeed to and be substituted for the Company hereunder, with the same effect as if such successor corporation had been named herein as obligor. Every such successor corporation shall possess, and may exercise, from time to time, each and every right and power hereunder of the Company, in its name or otherwise; and any act, proceeding, resolution or certificate by any of the terms of the Note required or provided to be done, taken and performed or made, executed or verified by any board or officer of the Company shall and may be done, taken and performed or made, executed and verified with like force and effect by the corresponding board or officer of any such successor Company. If consolidation, merger or sale or other transfer is made as permitted by this Section, the provisions of this Section shall continue in full force and effect and no further consolidation, merger or sale or other transfer shall be made except in compliance with the provisions of this Section.

Consolidation, Merger or Sale of Assets. So long as the Note remains outstanding and unpaid, In case of any consolidation of the Company will not consolidate with with, or permit itself to be merged into merger of the Company into, any other corporation Person, any merger of another Person into the Company (other than a merger which does not result in any reclassification, conversion, exchange or corporations, cancellation of outstanding Common Shares) or sell, lease, any sale or transfer or otherwise dispose of all or substantially all of its properties and the assets of the Company or of the Person formed by such consolidation or resulting from such merger or which acquires such assets, except as the case may be, the Holder shall have the right thereafter to exercise this Warrant for the kind and amount of securities, cash and other property receivable upon such consolidation, merger, sale or transfer by a holder of the number of Common Shares for which this Warrant may have been exercised immediately prior to such consolidation, merger, sale or transfer, assuming (i) such holder of Common Shares is not a Person with which the Company consolidated or into which the Company merged or which merged into the Company or to which such sale or transfer was made, as the case may be ("CONSTITUENT PERSON"), or an Affiliate of a constituent Person and (ii) in the manner case of a consolidation, merger, sale or transfer which includes an election as to the consideration to be received by the holders, such holder of Common Shares failed to exercise its rights of election, as to the kind or amount of securities, cash and other property receivable upon such consolidation, merger, sale or transfer (provided that if the terms kind or amount of securities, cash and conditions other property receivable upon such consolidation, merger, sale or transfer is not the same for each Common Share held immediately prior to such consolidation, merger, sale or transfer by a Person other than a constituent Person or an Affiliate thereof and in respect of which such rights of election shall not have been exercised ("NON-ELECTING SHARE"), then for the purpose of this paragraph (i) the kind and amount of securities, cash and other property receivable upon such consolidation, merger, sale or transfer for each non-electing share shall be deemed to be the kind and amount so receivable per share by a plurality of the non-electing shares). Adjustments for events subsequent to the effective date of such a consolidation, merger and sale of assets shall be as nearly equivalent as may be practicable to the adjustments provided for in this Warrant. In any such event, effective provisions shall be made in the certificate or articles of incorporation of the resulting or surviving corporation, in any contract of sale, conveyance, lease or transfer, or otherwise so that the provisions set forth in this Section 5.18. Nothing contained herein or in for the Note shall prevent (and the Note shall be construed as permitting and authorizing, without acceleration protection of the maturity rights of the NoteHolder shall thereafter continue to be applicable; and any such resulting or surviving corporation shall expressly assume the obligation to deliver, upon exercise, such shares of stock, other securities, cash and property. The provisions of this paragraph (i) any lawful consolidation shall similarly apply to successive consolidations, mergers, sales, leases or transfers. Notwithstanding the foregoing provisions of this paragraph (i), the treatment of this Warrant in connection with the merger of the Company with or and into any other corporation or corporations lawfully authorized to acquire and operate the properties of the Company, or a series of consolidations or mergers, or successive consolidations or mergers, in which the Company or its successor or successors Xxxxxxx Corporation shall be a party, or any sale of all or substantially all the properties of the Company as an entirety to a corporation lawfully authorized to acquire and operate the same; provided that, upon any consolidation, merger or sale, the corporation formed governed by such consolidation, or into which such merger may be made if other than the Company, or making such purchase shall execute and deliver to the Trustee an instrument, in form reasonably satisfactory to the Trustee, whereby such corporation shall effectually assume the due and punctual payment of the principal of and premium, if any, and interest on the Note according to its tenor and the due and punctual performance and observance of all covenants and agreements to be performed by the Company pursuant to the Note and the Participation Agreement on the part of the Company to be performed and observed; and, thereupon, such corporation shall succeed to and be substituted for the Company hereunder, with the same effect as if such successor corporation had been named herein as obligor. Every such successor corporation shall possess, and may exercise, from time to time, each and every right and power hereunder of the Company, in its name or otherwise; and any act, proceeding, resolution or certificate by any of the terms of the Note required or provided to be done, taken and performed or made, executed or verified by any board or officer of the Company shall and may be done, taken and performed or made, executed and verified with like force and effect by the corresponding board or officer of any such successor Company. If consolidation, merger or sale or other transfer is made as permitted by this Section, the provisions of this Section shall continue in full force and effect and no further consolidation, merger or sale or other transfer shall be made except in compliance with the provisions of this Sectionparagraph (o).

Consolidation, Merger or Sale of Assets. So long as the Note remains outstanding and unpaid, the (a) The Company will not consolidate with or permit itself to be merged into any other corporation merge with or corporationsinto, or sell, leaseconvey, transfer or otherwise dispose lease all or substantially all of our properties and assets to, any person (a “successor person”) unless: (i) The Company is the surviving corporation or the successor person (if other than the Company) is a corporation organized and validly existing under the laws of any U.S. domestic jurisdiction and expressly assumes the Company’s obligations on the Notes and under this Indenture; (ii) immediately after giving effect to the transaction, no Event of Default, and no event which, after notice or passage of time, or both, would become an Event of Default, shall have occurred and be continuing under this Indenture; and (iii) the Company will have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture and all conditions precedent are satisfied. (b) No Guarantor will consolidate with or merge with or into, or convey, transfer or lease all or substantially all of its properties and assets, except in assets to a successor person unless: (i) (A) the manner and upon the terms and conditions set forth in this Section 5.18. Nothing contained herein or in the Note shall prevent (and the Note shall be construed as permitting and authorizing, without acceleration of the maturity of the Note) any lawful consolidation or merger of the Company with or into any other corporation or corporations lawfully authorized to acquire and operate the properties of the Company, or a series of consolidations or mergers, or successive consolidations or mergers, in which successor person is the Company or a Guarantor or a Person that becomes a Guarantor concurrently with the transaction; (B) such Guarantor is the surviving entity or the successor person is validly existing under the laws of any U.S. domestic jurisdiction and expressly assumes such Guarantor’s obligations on its successor Guarantee and under this Indenture; (C) immediately after giving effect to the transaction, no Default or successors shall be a partyEvent of Default, and no event which, after notice or passage of time, or any both, would become an Event of Default, shall have occurred and be continuing under this Indenture; and (D) the Guarantor will have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture and all conditions precedent are satisfied; or (ii) the transaction constitutes a sale or other disposition (including by way of consolidation or merger) of the Guarantor or the sale or disposition of all or substantially all of the properties and assets of the Guarantor (in each case other than to the Company or a Guarantor) in a transaction not otherwise prohibited or restricted by this Indenture. Notwithstanding the foregoing, any Subsidiary of the Company as an entirety to a corporation lawfully authorized to acquire may consolidate with, merge into or transfer all or part of its properties and operate the same; provided that, upon any consolidation, merger or sale, the corporation formed by such consolidation, or into which such merger may be made if other than the Company, or making such purchase shall execute and deliver assets to the Trustee an instrument, in form reasonably satisfactory to the Trustee, whereby such corporation shall effectually assume the due and punctual payment of the principal of and premium, if any, and interest on the Note according to its tenor and the due and punctual performance and observance of all covenants and agreements to be performed by the Company pursuant to the Note and the Participation Agreement on the part of the Company to be performed and observed; and, thereupon, such corporation shall succeed to and be substituted for the Company hereunder, with the same effect as if such successor corporation had been named herein as obligor. Every such successor corporation shall possess, and may exercise, from time to time, each and every right and power hereunder of the Company, in its name or otherwise; and any act, proceeding, resolution or certificate by any of the terms of the Note required or provided to be done, taken and performed or made, executed or verified by any board or officer of the Company shall and may be done, taken and performed or made, executed and verified with like force and effect by the corresponding board or officer of any such successor Company. If consolidation, merger or sale or other transfer is made as permitted by this Section, the provisions of this Section shall continue in full force and effect and no further consolidation, merger or sale or other transfer shall be made except in compliance with the provisions of this Sectiona Guarantor.

Consolidation, Merger or Sale of Assets. So long as the Note remains outstanding and unpaid(a) The Company will not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company will not consolidate with or permit itself to be merged into any other corporation or corporations, or is the surviving corporation) or (2) sell, leaseassign, transfer transfer, convey or otherwise dispose of all or substantially all of its the properties and assets, except in the manner and upon the terms and conditions set forth in this Section 5.18. Nothing contained herein or in the Note shall prevent (and the Note shall be construed as permitting and authorizing, without acceleration assets of the maturity of Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person or Persons, unless: (A) either: (x) the NoteCompany is the surviving corporation; or (y) the Person formed by or surviving any lawful such consolidation or merger of the Company with or into any other corporation or corporations lawfully authorized to acquire and operate the properties of the Company, or a series of consolidations or mergers, or successive consolidations or mergers, in which the Company or its successor or successors shall be a party, or any sale of all or substantially all the properties of the Company as an entirety to a corporation lawfully authorized to acquire and operate the same; provided that, upon any consolidation, merger or sale, the corporation formed by such consolidation, or into which such merger may be made (if other than the Company) or to which such sale, assignment, transfer, conveyance or making such purchase other disposition shall execute have been made (i) is a corporation or limited liability company organized or existing under the laws of the United States, any state thereof or the District of Columbia and deliver (ii) assumes all the obligations of the Company under the Notes and this Indenture pursuant to the Trustee an instrument, in form agreements reasonably satisfactory to the Trustee; (B) immediately after giving effect to such transaction no Default or Event of Default exists; and (C) immediately after giving effect to such transaction on a pro forma basis, whereby the Company or the Person formed by or surviving any such corporation consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition shall effectually assume have been made, will, on the due date of such transaction after giving pro forma effect thereto and punctual payment any related financing transactions as if the same had occurred at the beginning of the principal applicable four-quarter period, be (i) permitted to incur at least $1.00 of and premium, if any, and interest on the Note according to its tenor and the due and punctual performance and observance of all covenants and agreements to be performed by the Company additional Indebtedness pursuant to the Note and Fixed Charge Coverage Ratio test set forth in Section 4.06(a) or (ii) have had a Fixed Charge Coverage Ratio equal to or greater than the Participation Agreement on the part actual Fixed Charge Coverage Ratio of the Company for the four-quarter period immediately prior to be performed such transaction. In addition, neither the Company nor any Restricted Subsidiary may, directly or indirectly, lease all or substantially all of its properties or assets, in one or more related transactions, to any other Person. Clauses (B) and observed; and(C) of Section 5.01(a)(2) will not apply to any merger, thereuponconsolidation or sale, such corporation shall assignment, transfer, lease, conveyance or other disposition of assets between or among the Company and any of its Restricted Subsidiaries. (b) Upon the consummation of any transaction effected in accordance with these provisions, if the Company is not the continuing Person, the resulting, surviving or transferee Person will succeed to to, and be substituted for for, and may exercise every right and power of, the Company hereunder, under this Indenture and the Notes with the same effect as if such successor corporation Person had been named herein as obligor. Every such successor corporation shall possess, and may exercise, from time to time, each and every right and power hereunder of the Company, in its name or otherwise; and any act, proceeding, resolution or certificate by any of the terms of the Note required or provided to be done, taken and performed or made, executed or verified by any board or officer of the Company shall and may be donein this Indenture. Upon such substitution, taken and performed or made, executed and verified with like force and effect by the corresponding board or officer of any such successor Company. If consolidation, merger or sale or other transfer is made as permitted by this Section, the provisions of this Section shall continue in full force and effect and no further consolidation, merger or sale or other transfer shall be made except in compliance with the provisions case of a sale, conveyance, transfer or disposition of less than all its assets the Company will be released from its obligations under this SectionIndenture and the Notes.

Consolidation, Merger or Sale of Assets. So long as the Note remains outstanding and unpaid, In case of any consolidation of the Company will not consolidate with with, or permit itself to be merged into merger of the Company into, any other corporation Person, any merger of another Person into the Company (other than a merger which does not result in any reclassification, conversion, exchange or corporations, cancellation of outstanding shares of Common Stock) or sell, lease, any sale or transfer or otherwise dispose of all or substantially all of its properties and assets, except in the manner and upon the terms and conditions set forth in this Section 5.18. Nothing contained herein or in the Note shall prevent (and the Note shall be construed as permitting and authorizing, without acceleration of the maturity of the Note) any lawful consolidation or merger assets of the Company with or into any other corporation or corporations lawfully authorized to acquire and operate the properties of the CompanyPerson formed by such consolidation or resulting from such merger or which acquires such assets, as the case may be, the Holder shall have the right thereafter to exercise this Warrant for the kind and amount of securities, cash and other property receivable upon such consolidation, merger, sale or transfer by a series holder of consolidations the number of shares of Common Stock for which this Warrant may have been exercised immediately prior to such consolidation, merger, sale or mergerstransfer, or successive consolidations or mergers, in assuming (i) such holder of Common Stock is not a Person with which the Company consolidated or into which the Company merged or which merged into the Company or to which such sale or transfer was made, as the case may be ("constituent Person"), or an Affiliate of a constituent Person and (ii) in the case of a consolidation, merger, sale or transfer which includes an election as to the consideration to be received by the holders, such holder of Common Stock failed to exercise its successor rights of election, as to the kind or successors amount of securities, cash and other property receivable upon such consolidation, merger, sale or transfer (provided that if the kind or amount of securities, cash and other property receivable upon such consolidation, merger, sale or transfer is not the same for each share of Common Stock held immediately prior to such consolidation, merger, sale or transfer by other than a constituent Person or an Affiliate thereof and in respect of which such rights of election shall not have been exercised ("non-electing share"), then for the purpose of this paragraph (i) the kind and amount of securities, cash and other property receivable upon such consolidation, merger, sale or transfer by each non-electing share shall be deemed to be the kind and amount so receivable per share by a party, or any sale of all or substantially all the properties plurality of the Company as an entirety non-electing shares). Adjustments for events subsequent to the effective date of such a corporation lawfully authorized to acquire and operate the same; provided that, upon any consolidation, merger and sale of assets shall be as nearly equivalent as may be practicable to the adjustments provided for in this Warrant. In any such event, effective provisions shall be made in the certificate or articles of incorporation of the resulting or surviving corporation, in any contract of sale, the corporation formed by such consolidationconveyance, lease or transfer, or into which such merger may be made if other than otherwise so that the Company, or making such purchase shall execute and deliver to provisions set forth herein for the Trustee an instrument, in form reasonably satisfactory to the Trustee, whereby such corporation shall effectually assume the due and punctual payment protection of the principal rights of and premium, if any, and interest on the Note according to its tenor and the due and punctual performance and observance of all covenants and agreements Holder shall thereafter continue to be performed by the Company pursuant to the Note and the Participation Agreement on the part of the Company to be performed and observed; and, thereupon, such corporation shall succeed to and be substituted for the Company hereunder, with the same effect as if such successor corporation had been named herein as obligor. Every such successor corporation shall possess, and may exercise, from time to time, each and every right and power hereunder of the Company, in its name or otherwiseapplicable; and any actsuch resulting or surviving corporation shall expressly assume the obligation to deliver, proceedingupon exercise, resolution or certificate by any such shares of the terms of the Note required or provided to be donestock, taken other securities, cash and performed or made, executed or verified by any board or officer of the Company shall and may be done, taken and performed or made, executed and verified with like force and effect by the corresponding board or officer of any such successor Companyproperty. If consolidation, merger or sale or other transfer is made as permitted by this Section, the The provisions of this Section paragraph (i) shall continue in full force and effect and no further consolidationsimilarly apply to successive consolidations, merger mergers, sales, leases or sale or other transfer shall be made except in compliance with the provisions of this Sectiontransfers.

Consolidation, Merger or Sale of Assets. So long as (a) None of the Note remains outstanding and unpaid, the Company will not Issuers or PIC Acquisition will: (x) consolidate or merge with or permit itself to be merged into any other corporation Person; or corporations, or (y) sell, leaseconvey, transfer transfer, or otherwise dispose of all or substantially all of its properties and assets, except in the manner and upon the terms and conditions set forth in this Section 5.18. Nothing contained herein or in the Note shall prevent (and the Note shall be construed as permitting and authorizing, without acceleration of the maturity of the Note) any lawful consolidation or merger of the Company with or into any other corporation or corporations lawfully authorized to acquire and operate the properties of the Company, one transaction or a series of consolidations related transactions, to any Person. (b) None of the Issuers or mergers, or successive consolidations or mergers, in which the Company or its successor or successors shall be a party, or any sale of PIC Acquisition will lease all or substantially all of its assets, whether in one transaction or a series of transactions, to one or more other Persons. (c) Peabody will not consolidate or merge with or into, or sell, assign, transfer, lease or otherwise dispose of, in a single transaction or series of related transactions, all or substantially all of its assets to any Person unless: (1) the properties resulting, surviving or transferee Person (if not Peabody) shall be a Person organized and validly existing under the laws of the Company as United States of America, any State thereof or the District of Columbia, and such Person shall expressly assume, by a supplemental indenture, executed and delivered to the Trustee, all the obligations of Peabody under the Notes, including pursuant to the Wilpinjong Mandatory Offer; (2) except in the case of a merger entered into solely for reincorporating Peabody in another jurisdiction, immediately after giving effect to such transaction and the assumption contemplated by the immediately preceding clause (1), there shall not have occurred an entirety Event of Default described in clause (i)(i) or (ii) in the definition thereof; (3) such transaction shall be permitted under the Peabody Existing Indenture and the Peabody 2024 Notes Indenture, excluding the effect of any amendments to a corporation lawfully authorized or waivers with respect to acquire and operate either of such indentures after the sameIssue Date; provided that, upon any consolidation, merger or sale, and (4) the corporation formed by such consolidation, or into which such merger may be made if other than the Company, or making such purchase Issuers shall execute and deliver have delivered to the Trustee an instrument, in form reasonably satisfactory to the Trustee, whereby such corporation shall effectually assume the due and punctual payment Officer’s Certificate of the principal Main Issuer and an Opinion of and premiumCounsel, each stating that such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if any, and interest on the Note according to its tenor and the due and punctual performance and observance of all covenants and agreements to be performed by the Company pursuant to the Note and the Participation Agreement on the part of the Company to be performed and observed; and, thereupona supplemental indenture is required in connection with such transaction, such corporation shall succeed to and be substituted for the Company hereunder, supplemental indenture comply with the same effect as if such successor corporation had been named herein as obligor. Every such successor corporation shall possess, and may exercise, from time to time, each and every right and power hereunder of the Company, in its name or otherwise; and any act, proceeding, resolution or certificate by any of the terms of the Note required or provided to be done, taken and performed or made, executed or verified by any board or officer of the Company shall and may be done, taken and performed or made, executed and verified with like force and effect by the corresponding board or officer of any such successor Company. If consolidation, merger or sale or other transfer is made as permitted by this Section, the applicable provisions of this Section shall continue Indenture and that all conditions precedent in full force and effect and no further consolidation, merger or sale or other transfer shall be made except in compliance with the provisions of this SectionIndenture relating to such transaction have been satisfied.

Consolidation, Merger or Sale of Assets. So long as the Note remains outstanding and unpaid(a) No Issuer will, the Company will not in a single transaction or through a series of related transactions, consolidate with or permit itself to be merged merge with or into any other corporation or corporations, Person or sell, leaseassign, transfer convey, transfer, lease or otherwise dispose of all or substantially all of its properties and assetsassets to any Person or group of Persons, except in unless at the manner time and upon after giving effect thereto: (1) either (a) such Issuer will be the terms and conditions set forth in this Section 5.18. Nothing contained herein continuing corporation or in (b) the Note shall prevent (and the Note shall be construed as permitting and authorizing, without acceleration of the maturity of the Note) any lawful Person formed by or surviving such consolidation or merger of or the Company with Person which acquires by sale, assignment, conveyance, transfer, lease or into any other corporation or corporations lawfully authorized to acquire and operate the properties of the Company, or a series of consolidations or mergers, or successive consolidations or mergers, in which the Company or its successor or successors shall be a party, or any sale of disposition all or substantially all of the properties and assets of such Issuer and their Restricted Subsidiaries on a consolidated basis (the “Surviving Entity”) (i) shall be a corporation, limited liability company or partnership duly organized and validly existing under the laws of the Company as an entirety to a corporation lawfully authorized to acquire and operate United States of America, any state thereof or the sameDistrict of Columbia; provided thatthat there shall be an obligor or a co-obligor that is a corporation, upon any consolidation, merger or sale, the corporation formed (ii) shall expressly assume by such consolidation, or into which such merger may be made if other than the Company, or making such purchase shall execute and deliver to the Trustee an instrumenta supplemental indenture, in a form reasonably satisfactory to the Trustee, whereby all the obligations of such corporation Issuer under the Notes and this Indenture and the Registration Rights Agreement, as the case may be, and the Notes and this Indenture and the Registration Rights Agreement will remain in full force and effect as so supplemented (and any Guarantees will be confirmed as applying to such Surviving Entity’s obligations) and (iii) shall effectually expressly assume the due and punctual payment performance of the principal covenants and obligations of and premiumsuch Issuer under the Security Documents; (2) after giving effect to such transaction, no Default or Event of Default exists; (3) after giving effect to such transaction, the Company (or the Surviving Entity if the Company is not the continuing obligor under this Indenture) could (a) incur $1.00 of additional Indebtedness under the provisions of Section 4.03(a) or (b) the Consolidated Fixed Charge Coverage Ratio of the Company or the Surviving Entity is equal to or greater than the Company’s Consolidated Fixed Charge Coverage Ratio immediately prior to such transaction; (4) at the time of the transaction, each Guarantor, if any, unless it is the other party to the transactions described above, will have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture and interest the Notes; (5) at the time of the transaction, such Issuer or the Surviving Entity will have delivered, or caused to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officer’s Certificate and an Opinion of Counsel, each to the effect that such consolidation, merger, transfer, sale, assignment, conveyance, transfer, lease or other transaction and the supplemental indenture in respect thereof comply with this Indenture and that all conditions precedent provided for in this Section 5.01(a) relating to such transaction have been complied with; (6) such Issuer or the Surviving Entity, as applicable, promptly causes such amendments, supplements or other instruments to be executed, delivered, filed and recorded, as applicable, in such jurisdictions as may be reasonably required by applicable law to preserve and protect the Lien of the Security Documents on the Note according Collateral owned by or transferred to such Issuer or the Surviving Entity; and (7) the Collateral owned by or transferred to such Issuer or the Surviving Entity, as applicable, shall (a) continue to constitute Collateral under this Indenture and the Security Documents, (b) be subject to the Lien in favor of the Collateral Agent for the benefit of the Trustee and the holders of the Notes, and (c) not be subject to any Lien other than Permitted Liens. Notwithstanding Sections 5.01(a)(2) and (a)(3), (1) either Issuer may consolidate with, merge into or transfer all or part of its tenor properties and assets to the other Issuer; (2) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to another Restricted Subsidiary and (3) either Issuer may merge with an Affiliate that has no significant assets or liabilities and was formed solely for the purpose of changing such Issuer’s jurisdiction of organization to another state of the United States. (b) Each Guarantor will not, and the Issuers will not permit a Guarantor to, in a single transaction or through a series of related transactions, consolidate with or merge with or into any other Person (other than the Issuers or any Guarantor) or sell, assign, convey, transfer, lease or otherwise dispose of all or substantially all of its properties and assets to any Person or group of Persons (other than the Issuers or any Guarantor), unless at the time and after giving effect thereto: (1) (a) either (i) the Guarantor will be the continuing corporation or limited liability company, as the case may be, in the case of a consolidation or merger involving the Guarantor or (ii) the Person formed by or surviving such consolidation or merger or the Person which acquires by sale, assignment, conveyance, transfer, lease or disposition all or substantially all of the properties and assets of the Guarantor on a consolidated basis (the “Surviving Guarantor Entity”) will be a corporation, limited liability company, limited liability partnership, partnership (whether general or limited) or trust duly organized and validly existing under the laws of the United States of America, any state thereof or the District of Columbia and such Person (x) expressly assumes, by a supplemental indenture, in a form reasonably satisfactory to the Trustee, all the obligations of such Guarantor under its Guarantee of the Notes and this Indenture and the Registration Rights Agreement and such Guarantee, Indenture and Registration Rights Agreement will remain in full force and effect; and (y) shall expressly assume the due and punctual performance and observance of all the covenants and agreements to be performed by the Company pursuant to the Note and the Participation Agreement on the part obligations of the Company to be performed and observed; and, thereupon, such corporation shall succeed to and be substituted for applicable Guarantor under the Company hereunder, with the same effect as if such successor corporation had been named herein as obligor. Every such successor corporation shall possess, and may exercise, from time to time, each and every right and power hereunder of the Company, in its name or otherwise; and any act, proceeding, resolution or certificate by any of the terms of the Note required or provided to be done, taken and performed or made, executed or verified by any board or officer of the Company shall and may be done, taken and performed or made, executed and verified with like force and effect by the corresponding board or officer of any such successor Company. If consolidation, merger or sale or other transfer is made as permitted by this Section, the provisions of this Section shall continue in full force and effect and no further consolidation, merger or sale or other transfer shall be made except in compliance with the provisions of this Section.Security Documents;

Consolidation, Merger or Sale of Assets. So long as (a) Each of the Note remains outstanding Issuer, Ultrapar and unpaid, the Company will Ipiranga shall not consolidate with or permit itself to be merged merge with or into any other corporation or corporations, Person or sell, leaseconvey, transfer or otherwise dispose lease, in one transaction or a series of transactions, directly or indirectly, all or substantially all of its properties and assets, except in or assets (determined on the manner and upon the terms and conditions set forth in this Section 5.18. Nothing contained herein or in the Note shall prevent (and the Note shall be construed as permitting and authorizing, without acceleration basis of the maturity consolidated assets of Ultrapar and its Subsidiaries) (including stock owned in another Person) to any other Person, unless: (i) the Note) any lawful Person formed by such consolidation or merger of the Company with or into any other corporation or corporations lawfully authorized to acquire and operate the properties of the Company, or a series of consolidations or mergers, or successive consolidations or mergers, in which the Company Issuer, Ultrapar or its successor Ipiranga is merged or successors shall be a partythe Person which acquired by sale, conveyance, transfer or any sale of lease all or substantially all of the properties or assets of the Company as an entirety to a corporation lawfully authorized to acquire and operate Issuer, Ultrapar or Ipiranga (in each case if not the same; provided thatIssuer, upon any consolidation, merger Ultrapar or sale, Ipiranga) (the corporation formed “Successor Corporation”) shall expressly assume by such consolidation, or into which such merger may be made if other than the Company, or making such purchase shall execute and deliver to the Trustee an instrument, in form reasonably satisfactory to the Trustee, whereby such corporation shall effectually assume amendment of this Indenture the due and punctual payment of the principal of and premiuminterest (and Additional Amounts) on all of the Notes or the Guarantees, as applicable, the performance or observance of every covenant of the Issuer, Ultrapar or Ipiranga, as applicable and all other obligations of the Issuer, Ultrapar or Ipiranga, as applicable under this Indenture and the Notes or the Guarantees, as applicable; (ii) immediately after giving effect to such transaction, no Event of Default with respect to any Note shall have occurred and be continuing; (iii) the Issuer, Ultrapar or Ipiranga, as applicable or the Successor Corporation, as the case may be, shall deliver to the Trustee an Opinion of Counsel to the effect that such consolidation, merger, sale, conveyance, transfer or lease and such amendment to this Indenture (if required) comply with these conditions, that such amendment (if required) has been duly authorized, executed and delivered and constitutes valid and binding obligations of the Successor Corporation and that all conditions precedent herein provided or relating to such transaction have been complied with; and (iv) the Successor Corporation shall expressly agree (A) to indemnify the Trustee, Registrar, Paying Agents and each Holder of a Note against any tax, duty, assessment or governmental charge thereafter imposed on such Holder solely as a consequence of such consolidation, merger, sale, conveyance, transfer or lease with respect to the payment of principal of or interest (and Additional Amounts) on the Notes and any other amounts due and owing under this Indenture; and (B) to pay any Additional Amounts as may be necessary in order that the net amounts received by the Holders of the Notes after any withholding or deduction of any tax, duty, assessment or other governmental charge imposed by any authority having power to tax to which the Successor Corporation is subject shall equal the respective amounts of principal and interest which would have been receivable in respect of the Notes in the absence of such consolidation, merger, sale, conveyance, transfer or lease. (b) Notwithstanding anything to the contrary in the foregoing, the following transactions shall not be subject to clauses (ii) and (iii) above: (i) the Issuer, Ultrapar and Ipiranga may merge with or into or consolidate with Ultrapar or any of its Subsidiaries provided that, if anythe surviving entity is a Subsidiary other than the Issuer or Ipiranga, such Subsidiary shall become the Issuer or a Guarantor of the Notes, as the case may be; or (ii) the Issuer, Ultrapar and interest Ipiranga may sell, convey, transfer or lease, in one transaction or in a series of transactions, directly or indirectly, all or substantially all of its properties or assets (determined on the Note according to its tenor and the due and punctual performance and observance of all covenants and agreements to be performed by the Company pursuant to the Note and the Participation Agreement on the part basis of the Company consolidated assets of Ultrapar and its Subsidiaries) (including stock owned in another Person) to be performed and observed; andUltrapar or any of its Subsidiaries, thereuponprovided that, if the assets are transferred to a Subsidiary other than the Issuer or Ipiranga, such corporation Subsidiary shall become the Issuer or a Guarantor of the Notes, as the case may be. (c) Upon any consolidation, merger, sale, conveyance, transfer or lease in accordance with these conditions, the Successor Corporation shall succeed to to, and be substituted for for, and may exercise every right and power of, the Company hereunderIssuer, Ultrapar or Ipiranga, as applicable under the Notes or the Guarantees, with the same effect as if such successor corporation the Successor Corporation had been named herein as obligor. Every such successor corporation shall possess, and may exercise, from time to time, each and every right and power hereunder the Issuer or the Guarantor of the Company, Notes herein. No Successor Corporation shall have the right to redeem the Notes unless the Issuer would have been entitled to redeem the Notes in its name or otherwise; and any act, proceeding, resolution or certificate by any of the terms of the Note required or provided to be done, taken and performed or made, executed or verified by any board or officer of the Company shall and may be done, taken and performed or made, executed and verified with like force and effect by the corresponding board or officer of any such successor Company. If consolidation, merger or sale or other transfer is made as permitted by this Section, the provisions of this Section shall continue in full force and effect and no further consolidation, merger or sale or other transfer shall be made except in compliance with the provisions of this Sectionsimilar circumstances.

Consolidation, Merger or Sale of Assets. So long as the Note remains outstanding and unpaid, the Company (a) The Corporation will not consolidate with or permit itself to be merged into any other corporation individual, corporation, partnership, joint venture, trust, limited liability Corporation or corporationscorporation, unincorporated organization or government or any political subdivision thereof, or sellany department, leaseagency authority or other instrumentality of any government or political subdivision thereof (each, transfer a "Person") or Persons or convey, transfer, lease or otherwise dispose of all or substantially all of its properties and assetsassets (any such conveyance, transfer, lease or other disposition, a "Transfer"), except in the manner and upon the terms and conditions set forth in this Section 5.18. 5.14. (b) Nothing contained herein or in the Note this Participation Agreement shall prevent (and the Note this Participation Agreement shall be construed as permitting and authorizing, without acceleration of the maturity of the Note) any lawful consolidation or merger of the Company Corporation with or into any other corporation or corporations Person lawfully authorized to acquire and operate the properties of the CompanyCorporation, or a series of consolidations or mergers, or successive consolidations or mergers, in which the Company Corporation or its successor or successors shall be a party, or any sale of all or substantially all the properties of the Company as an entirety Transfer to a corporation Person lawfully authorized to acquire and operate the same; provided that, that upon any consolidation, merger or saleTransfer, the corporation Person formed by such consolidation, or into which such merger may be made if other than the CompanyCorporation, or making such purchase the Person that is a transferee in a Transfer shall execute and deliver to the Trustee an instrument, in form reasonably satisfactory to the Trustee, whereby such corporation Person shall effectually assume the due and punctual payment of the principal of of, and premium, if any, and interest on on, the Corporation Note according to its tenor and the due and punctual performance and observance of all covenants and agreements to be performed by the Company Corporation pursuant to this Participation Agreement, the Note Tax Regulatory Agreement and the Participation Agreement on the part of the Company to be performed and observedCorporation Note; and, thereupon, such corporation the Corporation shall succeed to be released from its obligations under this Participation Agreement and be substituted for under the Company hereunder, with Tax Regulatory Agreement and the same effect as if such successor corporation had been named herein as obligor. Corporation Note. (c) Every such successor corporation Person (or transferee Person under Section 7.06) shall possess, and may exercise, from time to time, each and every right and power hereunder of the CompanyCorporation hereunder and under the Note, in its name or otherwise; and any act, proceeding, resolution or certificate by any of the terms of this Participation Agreement, the Tax Regulatory Agreement and the Corporation Note required or provided to be done, taken and performed or made, executed or verified by any board or officer of the Company Corporation shall and may be done, taken and performed or made, executed and or verified with like force and effect by the corresponding board or officer of any such successor Company. Person. (d) If consolidation, merger or sale or other transfer Transfer is made as permitted by this Section, the provisions of this Section shall continue in full force and effect and no further consolidation, merger or sale or other transfer Transfer shall be made except in compliance with the provisions of this Section.

Consolidation, Merger or Sale of Assets. So long as the Note remains outstanding and unpaid, the Company will not consolidate with or permit itself to be merged into If any other corporation or corporations, or sell, lease, transfer or otherwise dispose of all or substantially all of its properties and assets, except in the manner and upon the terms and conditions set forth in this Section 5.18. Nothing contained herein or in the Note shall prevent (and the Note shall be construed as permitting and authorizing, without acceleration of the maturity of the Note) any lawful consolidation or merger of the Company with or into any other corporation or corporations lawfully authorized to acquire and operate the properties of the Companyanother corporation, or a series of consolidations or mergers, or successive consolidations or mergers, in which the Company or its successor or successors shall be a party, or any sale of all or substantially all the properties of the Company its assets to another corporation shall be effected in such a way that holders of Exercise Shares shall be entitled to receive stock, securities, cash or other property with respect to or in exchange for Exercise Shares, then, as an entirety to a corporation lawfully authorized to acquire and operate the same; provided that, upon any condition of such consolidation, merger or sale, lawful and adequate provision shall be made whereby Holder shall have the corporation formed by right to acquire and receive, upon exercise of this Warrant, in lieu of the Exercise Shares, such shares of stock, securities, cash or other property issuable or payable (as part of the reorganization, reclassification, consolidation, merger or sale) with respect to or in exchange for such number of outstanding Exercise Shares as would have been received upon exercise of this Warrant at the Exercise Price. The Company will not effect any such consolidation, merger or into which such merger may be made sale, unless prior to the consummation thereof the successor corporation (if other than the Company, ) resulting from such consolidation or making merger or the corporation purchasing such purchase assets shall execute and deliver assume by written instrument mailed or delivered to Holder at the Trustee an instrument, in form reasonably satisfactory to the Trustee, whereby such corporation shall effectually assume the due and punctual payment last address of the principal of and premium, if any, and interest Holder appearing on the Note according to its tenor and the due and punctual performance and observance of all covenants and agreements to be performed by the Company pursuant to the Note and the Participation Agreement on the part of the Company to be performed and observed; and, thereupon, such corporation shall succeed to and be substituted for the Company hereunder, with the same effect as if such successor corporation had been named herein as obligor. Every such successor corporation shall possess, and may exercise, from time to time, each and every right and power hereunder books of the Company, the obligation to deliver to Holder such shares of stock, securities or assets as, in its name accordance with the foregoing provisions, Holder may be entitled to receive. If a purchase, tender or otherwise; exchange offer is made to and any act, proceeding, resolution or certificate accepted by any the holders of more than 50% of the terms of the Note required or provided to be doneoutstanding Exercise Shares, taken and performed or made, executed or verified by any board or officer of the Company shall and may be done, taken and performed or made, executed and verified with like force and not effect by the corresponding board or officer of any such successor Company. If consolidation, merger or sale with the person having made such offer or other transfer is made as permitted by this Sectionwith any Affiliate of such person, unless prior to the provisions consummation of this Section shall continue in full force and effect and no further such consolidation, merger or sale Holder shall have been given a reasonable opportunity to then elect to receive upon the exercise of this Warrant either the stock, securities or other transfer assets then issuable with respect to the Exercise Shares or the stock, securities or assets, or the equivalent, issued to previous holders of Exercise Shares in accordance with such offer. For purposes hereof the term “Affiliate” with respect to any given person shall be made except in compliance mean any person controlling, controlled by or under common control with the provisions of this Sectiongiven person.

Consolidation, Merger or Sale of Assets. So long as the Note remains outstanding and unpaid, Any consolidation of the Company will not consolidate with with, or permit itself to be merged into merger or liquidation (as part of a business reorganization or restructuring) of the Company into, any other corporation or corporationsother entity (whether or not affiliated with the Company), or sell, lease, transfer or otherwise dispose of all or substantially all of its properties and assets, except in the manner and upon the terms and conditions set forth in this Section 5.18. Nothing contained herein or in the Note shall prevent (and the Note shall be construed as permitting and authorizing, without acceleration of the maturity of the Note) any lawful consolidation or merger of the Company with or into any other corporation business combination or corporations lawfully authorized to acquire and operate the properties of association involving the Company, or a series of consolidations or successive consolidations, mergers, liquidations (as a part of a business reorganization or successive consolidations restructuring) or mergers, in other business combinations or associations to which the Company or its successor or successors shall be a partyparty or parties, or any sale or conveyance of all or substantially all the properties of the Company as an entirety Company's assets to a any other corporation lawfully or entity (whether or not affiliated with the Company) authorized to acquire and operate the same; provided that, same shall be prohibited unless the following conditions are satisfied: upon any such consolidation, merger merger, liquidation, business combination or saleassociation, sale or conveyance, (i) the due and punctual performance of all of the obligations of the Company under this Agreement and the other Operative Agreements to which it is a party shall be assumed in writing by the corporation or other entity formed by such consolidation, or into which such merger may be made if other than the CompanyCompany shall have been merged or liquidated, or making which shall have resulted from such purchase business combination or association, or which shall execute and deliver to the Trustee an instrument, in form reasonably satisfactory to the Trustee, whereby such corporation shall effectually assume the due and punctual payment of the principal of and premium, if any, and interest on the Note according to its tenor and the due and punctual performance and observance of have acquired all covenants and agreements to be performed by the Company pursuant to the Note and the Participation Agreement on the part of the Company to be performed and observed; and, thereupon, such corporation shall succeed to and be substituted for the Company hereunder, with the same effect as if such successor corporation had been named herein as obligor. Every such successor corporation shall possess, and may exercise, from time to time, each and every right and power hereunder or substantially all of the Company, in its name or otherwise's assets (the "Surviving Entity"); and any act, proceeding, resolution or certificate by any of (ii) the terms of the Note required or provided to be done, taken and performed or made, executed or verified by any board or officer of the Company Guarantees shall and may be done, taken and performed or made, executed and verified with like force and effect by the corresponding board or officer of any such successor Company. If consolidation, merger or sale or other transfer is made as permitted by this Section, the provisions of this Section shall continue remain in full force and effect with respect to the obligations of the Surviving Entity under the Leases and the other Operative Agreements to which the Company had been a party and Royal Ahold shall deliver a written confirmation to such effect; (iii) after giving effect to the transaction, no further Event of Default or event which with the giving of notice or passage of time or both would constitute an Event of Default shall exist; and (iv) the Company will, if requested by any Owner Participant, any Lessor, the Pass Through Trustee or any Indenture Trustee, deliver to each Owner Participant, each Lessor, the Pass Through Trustee and the Indenture Trustee an opinion or opinions of White & Case LLP or internal counsel to the Surviving Entity or any other counsel reasonably acceptable to such Owner Participant, Pass Through Trustee and Indenture Trustee stating that the Surviving Entity is duly organized under the laws of the state or other jurisdiction of its organization, that such assumption agreement, if applicable, is duly authorized, executed and delivered and is enforceable in accordance with its terms, that no violation of law applicable to or binding on the Surviving Entity will result from the Surviving Entity's being party to such assumption agreement, this Agreement or any of the other Operative Agreements to which the Company is a party (to the extent provided in such assumption agreement) and that the Guarantees have been modified to apply to the obligations of the Surviving Entity under the Leases and the other Operative Agreements and that, as modified, the Guarantees are enforceable in accordance with their terms (subject, in each case, to customary exceptions and qualifications). Upon any such consolidation, merger or sale liquidation (as part of a business reorganization or restructuring), or such other business combination or association, or any sale, conveyance, transfer or lease of all or substantially all of the assets of the Company in accordance with this Section 5.02, the Surviving Entity shall succeed to, and be made except in compliance with substituted for, and may exercise every right and power of, the provisions of Company under this SectionAgreement and the other Operative Agreements to which the Company is a party.

Consolidation, Merger or Sale of Assets. So long as the Note remains outstanding and unpaid, the Company will not consolidate with or permit itself to be merged into any other corporation or corporations, or sell, lease, transfer or otherwise dispose of all or substantially all of its properties and assets, except in the manner and upon the terms and conditions set forth in this Section 5.185.17. Nothing contained herein or in the Note shall prevent (and the Note shall be construed as permitting and authorizing, without acceleration of the maturity of the Note) any lawful consolidation or merger of the Company with or into any other corporation or corporations lawfully authorized to acquire and operate the properties of the Company, or a series of consolidations or mergers, or successive consolidations or mergers, in which the Company or its successor or successors shall be a party, or any sale of all or substantially all the properties of the Company as an entirety to a corporation lawfully authorized to acquire and operate the same; provided that, upon any consolidation, merger or sale, the corporation formed by such consolidation, or into which such merger may be made if other than the Company, or making such purchase shall execute and deliver to the Trustee an instrument, in form reasonably satisfactory to the Trustee, whereby such corporation shall effectually assume the due and punctual payment of the principal of and premium, if any, and interest on the Note according to its tenor and the due and punctual performance and observance of all covenants and agreements to be performed by the Company pursuant to the Note and the Participation Agreement on the part of the Company to be performed and observed; and, thereupon, such corporation shall succeed to and be substituted for the Company hereunder, with the same effect as if such successor corporation had been named herein as obligor. Every such successor corporation shall possess, and may exercise, from time to time, each and every right and power hereunder of the Company, in its name or otherwise; and any act, proceeding, resolution or certificate by any of the terms of the Note required or provided to be done, taken and performed or made, executed or verified by any board or officer of the Company shall and may be done, taken and performed or made, executed and verified with like force and effect by the corresponding board or officer of any such successor Company. If consolidation, merger or sale or other transfer is made as permitted by this Section, the provisions of this Section shall continue in full force and effect and no further consolidation, merger or sale or other transfer shall be made except in compliance with the provisions of this Section.

Consolidation, Merger or Sale of Assets. So long as the Note remains outstanding and unpaid, If the Company will not shall at any time consolidate with or permit itself to be merged merge with or into any other another corporation or corporations, or sell, lease, transfer or otherwise dispose of all or substantially all of its properties and assets, except in the manner and upon the terms and conditions set forth in this Section 5.18. Nothing contained herein or in the Note shall prevent other entity (and the Note shall be construed as permitting and authorizing, without acceleration of the maturity of the Note) any lawful which consolidation or merger shall be subject in any event to any applicable required consents by the Televisa Investors, conditions or requirements with respect thereto in the Transaction Agreements) and the Company is not the surviving corporation in such transaction or in connection therewith all or part of any Class C Common Stock or Class D Common Stock shall be changed into or exchanged for securities of any other entity or cash or other property or cancelled, the Holder shall thereafter receive, upon the conversion thereof in accordance with the terms hereof, the same form of consideration (which may include securities of the surviving corporation) that the Holder would have received in respect of the Conversion Shares had the Holder been able to convert all the Securities for Conversion Shares immediately prior to such consolidation or merger, and the Company shall take such steps in connection with such consolidation or into merger as may be necessary to assure that the provisions thereof shall thereafter be applicable, as nearly as reasonably may be (and identical in all substantive respects), in relation to any securities thereafter deliverable upon the conversion of the Securities. The Company or the successor corporation, as the case may be, as a condition to such consolidation or merger and in addition to any other corporation required consents by the Holder, conditions or corporations lawfully authorized requirements with respect to acquire such consolidation or merger in the Transaction Agreements, shall execute and operate deliver to the properties of the CompanyHolder a supplemental debenture (or indenture, or a series of consolidations or mergers, or successive consolidations or mergers, in which the Company or its successor or successors shall be a party, or any as applicable) so providing. A sale of all or substantially all the properties assets of the Company as an entirety to for a corporation lawfully authorized to acquire and operate consideration (apart from the same; provided that, upon any consolidation, merger or sale, the corporation formed by such consolidation, or into which such merger may be made if other than the Company, or making such purchase shall execute and deliver assumption of obligations) to the Trustee an instrument, in form reasonably satisfactory to the Trustee, whereby such corporation extent consisting of securities shall effectually assume the due and punctual payment of the principal of and premium, if any, and interest on the Note according to its tenor and the due and punctual performance and observance of all covenants and agreements to be performed by the Company pursuant to the Note and the Participation Agreement on the part of the Company to be performed and observed; and, thereupon, such corporation shall succeed to and be substituted deemed a consolidation or merger for the Company hereunder, with the same effect as if such successor corporation had been named herein as obligorforegoing purposes. Every such successor corporation shall possess, and may exercise, from time to time, each and every right and power hereunder of the Company, in its name or otherwise; and any act, proceeding, resolution or certificate by any of the terms of the Note required or provided to be done, taken and performed or made, executed or verified by any board or officer of the Company shall and may be done, taken and performed or made, executed and verified with like force and effect by the corresponding board or officer of any such successor Company. If consolidation, merger or sale or other transfer is made as permitted by this Section, the The provisions of this Section paragraph (iv) similarly shall continue in full force and effect and no further consolidation, merger apply to successive mergers or sale or other transfer shall be made except in compliance with the provisions of this Sectionconsolidations.

Consolidation, Merger or Sale of Assets. So long as the Note remains outstanding and unpaid, the (a) The Company will not consolidate with or permit itself to be merged into any other corporation individual, corporation, partnership, joint venture, trust, limited liability company or corporationscorporation, unincorporated organization or government or any political subdivision thereof, or sellany department, leaseagency authority or other instrumentality of any government or political subdivision thereof (each, transfer a "Person") or Persons or convey, transfer, lease or otherwise dispose of all or substantially all of its properties and assetsassets (any such conveyance, transfer, lease or other disposition, a "Transfer"), except in the manner and upon the terms and conditions set forth in this Section 5.18. 5.14. (b) Nothing contained herein or in the Note this Participation Agreement shall prevent (and the Note this Participation Agreement shall be construed as permitting and authorizing, without acceleration of the maturity of the Note) any lawful consolidation or merger of the Company with or into any other corporation or corporations Person lawfully authorized to acquire and operate the properties of the Company, or a series of consolidations or mergers, or successive consolidations or mergers, in which the Company or its successor or successors shall be a party, or any sale of all or substantially all the properties of the Company as an entirety Transfer to a corporation Person lawfully authorized to acquire and operate the same; provided that, that upon any consolidation, merger or saleTransfer, the corporation Person formed by such consolidation, or into which such merger may be made if other than the CompanyCorporation, or making such purchase the Person that is a transferee in a Transfer shall execute and deliver to the Trustee an instrument, in form reasonably satisfactory to the Trustee, whereby such corporation Person shall effectually assume the due and punctual payment of the principal of of, and premium, if any, and interest on on, the Company Note according to its tenor and the due and punctual performance and observance of all covenants and agreements to be performed by the Company pursuant to this Participation Agreement, the Note Tax Regulatory Agreement and the Participation Agreement on the part of the Company to be performed and observedNote; and, thereupon, such corporation shall succeed to and be substituted for the Company hereunder, with shall be released from its obligations under this Participation Agreement and under the same effect as if such successor corporation had been named herein as obligor. Tax Regulatory Agreement and the Company Note. (c) Every such successor corporation Person (or transferee Person under Section 7.06) shall possess, and may exercise, from time to time, each and every right and power hereunder of the CompanyCompany hereunder and under the Note, in its name or otherwise; and any act, proceeding, resolution or certificate by any of the terms of this Participation Agreement, the Tax Regulatory Agreement and the Company Note required or provided to be done, taken and performed or made, executed or verified by any board or officer of the Company shall and may be done, taken and performed or made, executed and or verified with like force and effect by the corresponding board or officer of any such successor Company. Person. (d) If consolidation, merger or sale or other transfer Transfer is made as permitted by this Section, the provisions of this Section shall continue in full force and effect and no further consolidation, merger or sale or other transfer Transfer shall be made except in compliance with the provisions of this Section.

Consolidation, Merger or Sale of Assets. So long as the Note remains outstanding and unpaid, the The Company will not consolidate with or permit itself to be merged into or be acquired or purchased by any other corporation company or corporationscompanies, or sellconvey, leasetransfer, transfer lease or otherwise dispose of all or substantially all of its properties and assetsassets (any such conveyance, transfer, lease or other disposition is hereafter called a "Transfer"), except in the manner and upon the terms and conditions set forth in this Section 5.185.12. Nothing contained herein or in the Note this Participation Agreement shall prevent (and the Note this Participation Agreement shall be construed as permitting and authorizing, without acceleration of the maturity of the Note) any lawful consolidation or merger of the Company with or into into, or acquisition or purchase by, any other corporation company or corporations companies lawfully authorized to acquire and operate the properties of the Company, or a series of consolidations or mergers, or successive consolidations or mergers, in which the Company or its successor or successors shall be a party, or any sale of all or substantially all the properties of the Company Transfer as an entirety to a corporation company lawfully authorized to acquire and operate the same; provided provided, that, upon any consolidation, merger merger, acquisition or salepurchase, or Transfer, the corporation company formed by such consolidation, or into which such merger may be made if other than the Company, or making such purchase the company which is acquiring or purchasing the Company, or which is a transferee, shall execute and deliver to the Trustee and the Credit Facility Issuer an instrument, in form reasonably satisfactory to the Trustee, whereby such corporation company shall effectually assume the due and punctual payment of the principal of and premium, if any, and interest on the Note according to its tenor and the due and punctual performance and observance of all covenants and agreements to be performed by the Company pursuant to the Note and the this Participation Agreement on the part of the Company to be performed and observed; observed and, thereupon, such corporation company shall succeed to and be substituted for the Company hereunderhereunder and under the Note, with the same effect as if such successor corporation company had been named herein as obligor. Every Each such successor corporation company shall possess, and may exercise, from time to time, each and every right and power hereunder and under the Note of the Company, in its name or otherwise; and any act, proceeding, resolution or certificate by any of the terms of hereof and the Note required or provided to be done, taken and performed or made, executed or verified by any board or officer of the Company shall and may be done, taken and performed or made, executed and verified with like force and effect by the corresponding board or officer of any such successor Companycompany. If consolidation, merger or sale or other transfer Transfer is made as permitted by this SectionSection 5.12, the provisions of this Section 5.12 shall continue in full force and effect and no further consolidation, merger or sale or other transfer Transfer shall be made except in compliance with the provisions of this SectionSection 5.12.

Consolidation, Merger or Sale of Assets. So long as the Note remains outstanding and unpaid, Neither the Company nor any Subsidiary will not consolidate with wind up, liquidate or permit itself to be merged dissolve its affairs, or enter into any other corporation transaction of merger or corporationsconsolidation, or sell, lease, transfer or otherwise dispose of all or substantially all any part of its properties property or assets (other than sales of Inventory and assetssurplus or obsolete assets in the ordinary course of business, provided that any disposal does not prejudice the Lenders in any material way), except in the manner and upon the terms and conditions set forth in this Section 5.18. Nothing contained herein or in the Note shall prevent that: (and the Note shall be construed as permitting and authorizing, without acceleration of the maturity of the Notea) any lawful consolidation or merger Subsidiary of the Company may merge, consolidate, wind up, liquidate or dissolve into and with the Company or into any other corporation or corporations lawfully authorized to acquire and operate the properties Substantially-Owned Subsidiary of the Company; (b) the Company and its Subsidiaries may make Investments permitted hereby; (c) the Company may sell or otherwise dispose of its assets to any Qualified Domestic Substantially Owned Subsidiary, and any Subsidiary of the Company may sell or otherwise dispose of its assets to the Company or a series Qualified Domestic Substantially Owned Subsidiary of consolidations or mergers, or successive consolidations or mergers, in which the Company; (d) the Company or its successor Subsidiaries may sell assets in an aggregate amount not to exceed $1,000,000 in any fiscal year; (e) the Company or successors shall be a party, or any sale of all or substantially all its Subsidiaries may make Permitted Acquisitions; and (f) the properties Company may effect the Company Merger. Upon the request and at the expense of the Company as an entirety to a corporation lawfully authorized to acquire and operate the same; provided that, upon in connection with any consolidation, merger or sale, transfer or other disposition of property or assets permitted hereunder or under any other Loan Document, and so long as no Default or Event of Default has occurred and is continuing, the corporation formed by such consolidationAgent shall upon request execute and deliver, or into which such merger may be made if shall cause the secured party, mortgagee, trustee or other than the Company, or making such purchase shall appropriate Person to execute and deliver deliver, to the Trustee an instrumentCompany duly executed releases or partial releases, as applicable, of any Lien pursuant to any Loan Document which it may have in such property or assets, in form and substance reasonably satisfactory to the TrusteeAgent, whereby such corporation shall effectually assume the due and punctual payment of secured party, mortgagee, trustee or other appropriate Person, as the principal of and premium, if anycase may be, and interest on the Note according to its tenor and the due and punctual performance and observance of all covenants and agreements to be performed by the Company pursuant to the Note and the Participation Agreement on the part of the Company to be performed and observed; and, thereupon, such corporation shall succeed to and be substituted for the Company hereunder, with the same effect as if such successor corporation had been named herein as obligor. Every such successor corporation shall possess, and may exercise, from time to time, each and every right and power hereunder of the Company, in its name or otherwise; and any act, proceeding, resolution or certificate by any of the terms of the Note required or provided to be done, taken and performed or made, executed or verified by any board or officer of the Company shall and may be done, taken and performed or made, executed and verified with like force and effect by the corresponding board or officer of any such successor Company. If consolidation, merger or sale or other transfer is made as permitted by this Section, the provisions of this Section shall continue in full force and effect and no further consolidation, merger or sale or other transfer shall be made except in compliance with the provisions of this Section.

Consolidation, Merger or Sale of Assets. So long as the Note remains outstanding and unpaid, the Company will (a) The Issuer shall not consolidate with or permit itself to be merged merge into any other corporation or corporations, convey or sell, lease, transfer or otherwise dispose of all or substantially all of its properties and assetsor assets to any Person, except in the manner and upon the terms and conditions set forth in this Section 5.18. Nothing contained herein or in the Note shall prevent unless: (and the Note shall be construed as permitting and authorizing, without acceleration of the maturity of the Notei) any lawful consolidation or merger of the Company with or into any other corporation or corporations lawfully authorized to acquire and operate the properties of the Company, or a series of consolidations or mergers, or successive consolidations or mergers, in which the Company or its successor or successors shall be a party, or any sale of all or substantially all the properties of the Company as an entirety to a corporation lawfully authorized to acquire and operate the same; provided that, upon any consolidation, merger or sale, the corporation formed by such consolidation, consolidation or into which such merger may the Issuer is merged or the Person which acquires by conveyance or transfer the Issuer’s properties or assets substantially as an entirety shall be made if other than a corporation organized and existing under the Companylaws of the United States of America or any State thereof or the District of Columbia, or making such purchase and shall execute expressly assume, by supplemental indenture executed and deliver to the Trustee an instrument, in form reasonably satisfactory delivered to the Trustee, whereby such corporation shall effectually assume the due and punctual payment of the principal of (and premium, if any) and interest, and interest if any, on the Note according to its tenor Notes and the due and punctual performance and or observance of all covenants and agreements every covenant of this Indenture on the Issuer’s part to be performed by the Company or observed and shall pursuant to supplements to the Note and Security Documents take such action as may be required to assume the Participation Agreement on the part obligations of the Company Issuer thereunder and maintain the perfection of the Liens securing the Parity Lien Obligations; (ii) the Issuer has delivered to be performed the Trustee an Officer’s Certificate and observedan Opinion of Counsel, each stating that such consolidation, merger, conveyance or transfer and such supplemental indenture comply with this Article IV and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with; and (iii) immediately after giving effect to such transaction, thereuponno Event of Default, and no event which, after notice or lapse of time, or both, would become an Event of Default, shall have happened and be continuing. (b) Upon any consolidation or merger, or any conveyance or transfer of all or substantially all of the Issuer’s properties and assets in accordance with this Section 4.1, the successor corporation formed by such corporation shall consolidation or into which the Issuer is merged or to which such conveyance or transfer is made will succeed to to, and be substituted for for, the Company hereunder, Issuer under this Indenture with the same effect as if such the successor corporation had been named herein as obligor. Every such successor corporation shall possessthe Issuer in this Indenture, and may exercise, the predecessor shall be released from time to time, each all obligations and every right covenants under this Indenture and power hereunder of the Company, in its name or otherwise; and any act, proceeding, resolution or certificate by any of Notes. In the terms of the Note required or provided to be done, taken and performed or made, executed or verified by any board or officer of the Company shall and may be done, taken and performed or made, executed and verified with like force and effect by the corresponding board or officer event of any such successor Company. If conveyance or transfer, the Issuer as the predecessor may be dissolved, wound up and liquidated at any time thereafter; (c) Unless the Note Guarantee of a Guarantor is permitted to be released in connection with such transaction pursuant to Article X, no Guarantor shall consolidate with or merge into any other Person or convey or transfer all or substantially all of its properties or assets to any Person unless: (i) the other Person is the Issuer or another Guarantor, or (ii) either (x) a Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person shall be a corporation, limited liability company or limited partnership organized and existing under the laws of the United States of America or any State thereof or the District of Columbia and expressly assumes by a supplemental indenture all of the obligations of the Guarantor under its Note Guarantee, the Indenture and the Security Documents, as applicable, and shall pursuant to supplements to the Security Documents take such action as may be required to assume the obligations of such Guarantor thereunder and maintain the perfection of the Liens securing the Parity Lien Obligations and immediately after giving effect to the transaction, no Default has occurred and is continuing; (iii) the transaction does not violate Section 3.5; or (iv) the Issuer has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger merger, conveyance or sale or other transfer is made as permitted by and such supplemental indenture comply with this Section, Article IV and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with. Notwithstanding anything to the provisions of contrary in this Section 4.1, while PropCo holds any Collateral, it shall continue in full force and effect and no further consolidationnot merge, merger consolidate or sale or transfer all of substantially all of its assets to the Issuer of any of its Subsidiaries other transfer shall be made except in compliance with the provisions of this Sectionthan PropCo.

Consolidation, Merger or Sale of Assets. So long as the Note remains outstanding and unpaid, the Company will not consolidate with or permit itself to be merged into any other corporation or corporations, or sell, lease, transfer or otherwise dispose of all or or 2.1 substantially all of its properties and assets, except in the manner and upon the terms and conditions set forth in this Section 5.185.17. Nothing contained herein or in the Note shall prevent (and the Note shall be construed as permitting and authorizing, without acceleration of the maturity of the Note) any lawful consolidation or merger of the Company with or into any other corporation or corporations lawfully authorized to acquire and operate the properties of the Company, or a series of consolidations or mergers, or successive consolidations or mergers, in which the Company or its successor or successors shall be a party, or any sale of all or substantially all the properties of the Company as an entirety to a corporation lawfully authorized to acquire and operate the same; provided that, upon any consolidation, merger or sale, the corporation formed by such consolidation, or into which such merger may be made if other than the Company, or making such purchase shall execute and deliver to the Trustee an instrument, in form reasonably satisfactory to the Trustee, whereby such corporation shall effectually assume the due and punctual payment of the principal of and premium, if any, and interest on the Note according to its tenor and the due and punctual performance and observance of all covenants and agreements to be performed by the Company pursuant to the Note and the Participation Agreement on the part of the Company to be performed and observed; and, thereupon, such corporation shall succeed to and be substituted for the Company hereunder, with the same effect as if such successor corporation had been named herein as obligor. Every such successor corporation shall possess, and may exercise, from time to time, each and every right and power hereunder of the Company, in its name or otherwise; and any act, proceeding, resolution or certificate by any of the terms of the Note required or provided to be done, taken and performed or made, executed or verified by any board or officer of the Company shall and may be done, taken and performed or made, executed and verified with like force and effect by the corresponding board or officer of any such successor Company. If consolidation, merger or sale or other transfer is made as permitted by this Section, the provisions of this Section shall continue in full force and effect and no further consolidation, merger or sale or other transfer shall be made except in compliance with the provisions of this Section.

Consolidation, Merger or Sale of Assets. So long as the Note remains outstanding and unpaidLessee may not, the Company will not --------------------------------------- directly or indirectly, (a) consolidate or merge with or permit itself to be merged into any other corporation another Person (whether or corporations, not Lessee is the surviving entity) or (b) sell, leaseassign, transfer transfer, convey or otherwise dispose of all or substantially all of its and its Restricted Subsidiaries' properties and or assets, except taken as a whole, in one or more related transactions, to another Person; unless: (1) either (A) Lessee is the manner and upon surviving entity or (B) the terms and conditions set forth in this Section 5.18. Nothing contained herein Person formed by or in the Note shall prevent (and the Note shall be construed as permitting and authorizing, without acceleration of the maturity of the Note) surviving any lawful such consolidation or merger (if other than Lessee) or to which such sale, assignment, transfer, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the Company with United States, any State thereof or into the District of Columbia; (2) the Person formed by or surviving any such consolidation or merger (if other corporation or corporations lawfully authorized to acquire and operate the properties of the Companythan Lessee), or a series the Person to which such sale, assignment, transfer, conveyance or other disposition shall have been made, assumes all the obligations of consolidations Lessee under this Agreement and all other applicable Operative Documents, pursuant to agreements reasonably satisfactory to the Required Lenders; (3) immediately after such transaction no Default or mergers, Event of Default exists; (4) such transaction would not result in the loss or successive consolidations suspension -22- or mergers, in which the Company or its successor or successors shall be a party, material impairment of any of Lessee's or any sale of its Restricted Subsidiaries' Gaming Licenses unless a comparable replacement Gaming License is effective prior to or simultaneously with such loss, suspension or material impairment; (6) such transaction would not require any Participant to obtain a Gaming License or be qualified or found suitable under the law of any applicable gaming jurisdiction; provided, however, that -------- ------- such Participant would not have been required to obtain a Gaming License or be qualified or found suitable under the laws of any applicable gaming jurisdiction in the absence of such transaction. In addition, Lessee may not, directly or indirectly, lease all or substantially all of its properties or assets, in one or more related transactions, to any other Person. Notwithstanding the properties foregoing, Lessee may reorganize as a corporation or other business entity in accordance with the procedures established in Section 5.2(b), provided that Lessee has delivered to -------------- -------- Administrative Agent (with original counterparts for Trustee/Lessor and each Lender) an opinion of counsel in the United States reasonably acceptable to the Required Lenders confirming that the reorganization is not adverse to the Participants (it being recognized that the reorganization will not be deemed adverse to the Participants solely because (x) of the Company accrual of deferred tax liabilities resulting from the reorganization or (y) the successor or surviving corporation (1) is subject to income tax as a corporate entity or (2) is considered to be an entirety to a corporation lawfully authorized to acquire and operate "includible corporation" of an affiliated group of corporations within the same; provided that, upon any consolidation, merger or sale, meaning of the corporation formed by such consolidationCode, or into which such merger may be made if other than the Company, any similar state or making such purchase shall execute and deliver to the Trustee an instrument, in form reasonably satisfactory to the Trustee, whereby such corporation shall effectually assume the due and punctual payment of the principal of and premium, if any, and interest on the Note according to its tenor and the due and punctual performance and observance of all covenants and agreements to be performed by the Company pursuant to the Note and the Participation Agreement on the part of the Company to be performed and observed; and, thereupon, such corporation shall succeed to and be substituted for the Company hereunder, with the same effect as if such successor corporation had been named herein as obligor. Every such successor corporation shall possess, and may exercise, from time to time, each and every right and power hereunder of the Company, in its name or otherwise; and any act, proceeding, resolution or certificate by any of the terms of the Note required or provided to be done, taken and performed or made, executed or verified by any board or officer of the Company shall and may be done, taken and performed or made, executed and verified with like force and effect by the corresponding board or officer of any such successor Company. If consolidation, merger or sale or other transfer is made as permitted by this Section, the provisions of this Section shall continue in full force and effect and no further consolidation, merger or sale or other transfer shall be made except in compliance with the provisions of this Sectionlocal law).

Consolidation, Merger or Sale of Assets. So long as the Note remains outstanding and unpaid, Each of the Company and the Guarantor covenants that it will not merge or consolidate with or permit itself to be merged into any other corporation or corporations, sell or sell, lease, transfer or otherwise dispose of convey all or substantially all of its properties and assetsassets to any person, except in the manner and upon the terms and conditions set forth in this Section 5.18. Nothing contained herein firm or in the Note shall prevent corporation, unless (and the Note shall be construed as permitting and authorizing, without acceleration of the maturity of the Notei) any lawful consolidation or merger of the Company with or into any other corporation or corporations lawfully authorized to acquire and operate the properties of the Company, or a series of consolidations or mergers, or successive consolidations or mergers, in which either the Company or its successor or successors the Guarantor, as the case may be, shall be a partythe continuing company, or any sale of all or substantially all the properties of the Company as an entirety to a successor corporation lawfully authorized to acquire and operate the same; provided that, upon any consolidation, merger or sale, the corporation formed by such consolidation, or into which such merger may be made (if other than the Company or the Guarantor, as the case may be) shall be a company organized and existing under, in the case of a successor to the Company, the laws of Canada or making such purchase shall execute and deliver a province thereof, or in the case of a successor to the Trustee an instrumentGuarantor, in form reasonably satisfactory to the Trustee, whereby United States of America or a state thereof and such corporation shall effectually expressly assume the due and punctual payment of the principal of of, interest, and premiumAdditional Amounts, if any, and interest on the Note Notes, according to its tenor their tenor, and the due and punctual performance and observance of all of the covenants and agreements conditions of the Fiscal and Paying Agency Agreement to be performed by the Company pursuant or the Guarantor, as the case may be, in an instrument executed and delivered to the Note Fiscal Agent by such corporation and (ii) the Participation Agreement on Company, the Guarantor or such successor corporation, as the case may be, shall not, immediately after such merger or consolidation, or such sale or conveyance, be in default in the performance of any such covenant or condition. Notwithstanding the foregoing, the Company may transfer all or any part of its assets to the Guarantor or to any other entity controlled by the Company and/or the Guarantor, provided that such transfer shall not in any way affect the rights of holders of the Notes under the Notes or the Guarantee or to be performed the full and observed; andpunctual performance and observance of all Company and Guarantor covenants and conditions of the Fiscal and Paying Agency Agreement. In case of any such consolidation, thereuponmerger, sale or conveyance and upon any such assumption by the successor corporation, such successor corporation shall succeed to and be substituted for the Company hereunderor the Guarantor, as the case may be, with the same effect as if such successor corporation it had been named herein as obligorin the Fiscal and Paying Agency Agreement. Every such successor corporation shall possess, and The Fiscal Agent may exercise, from time receive an opinion of counsel (which counsel may be an employee of or counsel to time, each and every right and power hereunder of the Company, in its name or otherwise; who may be other counsel acceptable to the Fiscal Agent) as conclusive evidence that any such consolidation, merger, sale or conveyance, and any actsuch assumption, proceeding, resolution or certificate by any of the terms of the Note required or provided to be done, taken and performed or made, executed or verified by any board or officer of the Company shall and may be done, taken and performed or made, executed and verified with like force and effect by the corresponding board or officer of any such successor Company. If consolidation, merger or sale or other transfer is made as permitted by this Section, the provisions of this Section shall continue in full force and effect and no further consolidation, merger or sale or other transfer shall be made except in compliance complies with the provisions of this SectionCondition 11.

Consolidation, Merger or Sale of Assets. So long as the Note remains outstanding and unpaid, the Company will not consolidate with or permit itself to be merged into any other corporation or corporations, or sell, lease, transfer or otherwise dispose of all or substantially all of its properties and assets, except in the manner and upon the terms and conditions set forth in this Section 5.18. Nothing contained herein or in the Note shall prevent (and the Note shall be construed as permitting and authorizing, without acceleration of the maturity of the Note) any lawful consolidation or merger of the Company with or into any other corporation or corporations lawfully authorized to acquire and operate the properties of the Company, or a series of consolidations or mergers, or successive consolidations or mergers, in which the Company or its successor or successors shall be a party, or any sale of all or substantially all the properties of the Company as an entirety to a corporation lawfully authorized to acquire and operate the same; provided that, upon any consolidation, merger or sale, the corporation formed by such consolidation, or into which such merger may be made if other than the Company, or making such purchase shall execute and deliver to the Trustee an instrument, in form reasonably satisfactory to the Trustee, whereby such corporation shall effectually assume the due and punctual payment of the principal of and premium, if any, and interest on the Note according to its tenor and the due and punctual performance and observance of all covenants and agreements to be performed by the Company pursuant to the Note and the this Participation Agreement on the part of the Company to be performed and observed; and, thereupon, such corporation shall succeed to and be substituted for the Company hereunder, with the same effect as if such successor corporation had been named herein as obligor. Every such successor corporation shall possess, and may exercise, from time to time, each and every right and power hereunder of the Company, in its name or otherwise; and any act, proceeding, resolution or certificate by any of the terms of the Note required or provided to be done, taken and performed or made, executed or verified by any board or officer of the Company shall and may be done, taken and performed or made, executed and verified with like force and effect by the corresponding board or officer of any such successor Company. If consolidation, merger or sale or other transfer is made as permitted by this Section, the provisions of this Section shall continue in full force and effect and no further consolidation, merger or sale or other transfer shall be made except in compliance with the provisions of this Section.

Consolidation, Merger or Sale of Assets. So long as the Note remains outstanding and unpaid, the (a) The Company will shall not consolidate with, merge with or permit itself to be merged into any other corporation or corporationsinto, or sell, leaseconvey, transfer transfer, or otherwise dispose of all or substantially all of its properties property and assetsassets (as an entirety or substantially an entirety in one transaction or a series of related transactions) to, except any Person nor permit any Person to merge with or into the Company unless: (i) the Company shall be the continuing Person, or the Person (if other than the Company) formed by such consolidation or into which the Company is merged or that acquired such property and assets of the Company shall be a corporation organized and validly existing under the laws of the United States of America or any jurisdiction thereof and shall expressly assume, by a supplemental indenture, executed and delivered to the Trustee, all of the obligations of the Company on all of the Notes and under the Indenture; (ii) immediately after giving effect to such transaction (and treating any Indebtedness which becomes an obligation of the continuing Person or any Subsidiary of the continuing Person as a result of such transaction as having been Incurred by the continuing Person or such Restricted Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing; (iii) immediately after giving effect to such transaction, the continuing Person would be able to incur an additional $1.00 of Indebtedness pursuant to Section 4.07(a); and (iv) the Company delivers to the Trustee an Officers' Certificate and opinion of counsel, in the manner each case stating that such consolidation, merger or transfer and upon such supplemental indenture complies with this Article 5 and the terms and conditions set forth in this Section 5.18. Nothing contained herein or in the Note shall prevent (and the Note shall be construed as permitting and authorizing, without acceleration of the maturity of Indenture. (b) Notwithstanding the Noteforegoing, in no event shall any (i) any lawful consolidation or merger of by the Company with or into any or (ii) sale, assignment, transfer, conveyance or other corporation or corporations lawfully authorized to acquire and operate the properties of the Company, or a series of consolidations or mergers, or successive consolidations or mergers, in which disposition by the Company or its successor or successors shall be a party, or any sale of all or substantially all the properties of its property or assets to, one or more Subsidiaries of the Company relieve the Company from any of its obligations under the Indenture and the Notes. (c) The Company shall not lease all or substantially all of its property and assets (as an entirety or substantially an entirety in one transaction or a series of related transactions) to, any Person other than to a corporation lawfully authorized Wholly-Owned Subsidiary. (d) No failure to acquire and operate the same; provided that, upon any consolidation, merger or sale, the corporation formed by such consolidation, or into which such merger may be made if other than the Company, or making such purchase shall execute and deliver to the Trustee an instrument, in form reasonably satisfactory to the Trustee, whereby such corporation shall effectually assume the due and punctual payment of the principal of and premium, if any, and interest on the Note according to its tenor and the due and punctual performance and observance of all covenants and agreements to be performed by the Company pursuant to the Note and the Participation Agreement on the part of the Company to be performed and observed; and, thereupon, such corporation shall succeed to and be substituted for the Company hereunder, comply with the same effect as if such successor corporation had been named herein as obligor. Every such successor corporation shall possess, and may exercise, from time to time, each and every right and power hereunder of the Company, in its name or otherwise; and any act, proceeding, resolution or certificate by any of the terms of the Note required or provided to be done, taken and performed or made, executed or verified by any board or officer of the Company shall and may be done, taken and performed or made, executed and verified with like force and effect by the corresponding board or officer of any such successor Company. If consolidation, merger or sale or other transfer is made as permitted by this Section, the provisions of this Section shall continue in full force and effect and no further consolidation, merger or sale or other transfer 5.01 shall be made except in compliance with actionable by the provisions Trustee or any Holders until such time as such failure constitutes an Event of this SectionDefault under Section 6.01.

Consolidation, Merger or Sale of Assets. So long as the Note remains outstanding and unpaid, the The Company will not consolidate with or permit itself to be merged into any other corporation or corporations, or sell, lease, transfer or otherwise dispose of all or substantially all of its properties and assets, except in the manner and upon the terms and conditions set forth in this Section 5.185.10. Nothing contained herein or in the Note shall prevent (and the Note this Participation Agreement shall be construed as permitting and authorizing, without acceleration of the maturity of the Note) any lawful consolidation or merger of the Company with or into any other corporation or corporations lawfully authorized to acquire and operate the properties of the Company, or a series of consolidations or mergers, or successive consolidations or mergers, in which the Company or its successor or successors shall be a party, or any sale of all or substantially all the properties of the Company as an entirety to a corporation lawfully authorized to acquire and operate the same; provided that, upon any consolidation, merger or sale, the corporation formed by such consolidation, or into which such merger may be made if other than the Companymade, or making such purchase shall execute and deliver to the Trustee an instrument, in form reasonably satisfactory to the Trustee, whereby such corporation shall effectually assume the due and punctual payment of the principal of and premium, if any, and interest on the Note Company Obligation according to its tenor and the due and punctual performance and observance of all covenants and agreements to be performed by the Company pursuant to this Participation Agreement, the Note Tax Regulatory Agreement and the Participation Agreement on the part of the Company to be performed and observed; and, thereupon, such corporation shall succeed to and be substituted for the Company hereunder, with the same effect as if such successor corporation had been named herein as obligorObligation. Every such successor corporation shall possess, and may exercise, from time to time, each and every right and power hereunder of the Company, in its name or otherwise; and any act, proceeding, resolution or certificate by any of the terms of this Participation Agreement and the Note Company Obligation required or provided to be done, taken and performed or made, executed or verified by any board or officer of the Company shall and may be done, taken and performed or made, executed and or verified with like force and effect by the corresponding board or officer of any such successor Company. If consolidation, merger or sale or other transfer is made as permitted by this Section, the provisions of this Section shall continue in full force and effect and no further consolidation, merger or sale or other transfer shall be made except in compliance with the provisions of this Section.

Consolidation, Merger or Sale of Assets. So long as the Note remains outstanding and unpaid, the The Company will not consolidate with or permit itself to be merged into any other corporation or corporations, or sell, lease, transfer or otherwise dispose of all or substantially all of its properties and assets, except in the manner and upon the terms and conditions set forth in this Section 5.185.08. Nothing contained herein or in the Note this Participation Agreement shall prevent (and the Note this Participation Agreement shall be construed as permitting and authorizing, without acceleration of the maturity of the Note) any lawful consolidation or merger of the Company with or into any other corporation or corporations lawfully authorized to acquire and operate the properties of the Company, or a series of consolidations or mergers, or successive consolidations or mergers, in which the Company or its successor or successors shall be a party, or any sale of all or substantially all the properties of the Company as an entirety to a corporation lawfully authorized to acquire and operate the same; provided that, upon any consolidation, merger or sale, the corporation formed by such consolidation, or into which such merger may be made if other than the Companymade, or making such purchase shall execute and deliver to the Trustee an instrument, in form reasonably satisfactory to the Trustee, whereby such corporation shall effectually assume the due and punctual payment of the principal of of, and premium, if any, and interest on on, the Note Company Obligation according to its tenor and the due and punctual performance and observance of all covenants and agreements to be performed by the Company pursuant to this Participation Agreement, the Note Tax Regulatory Agreement and the Participation Agreement on the part of the Company to be performed and observed; and, thereupon, such corporation shall succeed to and be substituted for the Company hereunder, with the same effect as if such successor corporation had been named herein as obligorObligation. Every such successor corporation shall possess, and may exercise, from time to time, each and every right and power hereunder of the Company, in its name or otherwise; and any act, proceeding, resolution or certificate by any of the terms of this Participation Agreement and the Note Company Obligation required or provided to be done, taken and performed or made, executed or verified by any board or officer of the Company shall and may be done, taken and performed or made, executed and or verified with like force and effect by the corresponding board or officer of any such successor Companycorporation. If consolidation, merger or sale or other transfer is made as permitted by this Section, the provisions provision of this Section shall continue in full force and effect and no further consolidation, merger or sale or other transfer shall be made except in compliance with the provisions of this Section.