Common use of Consolidation, Merger, Sale, etc Clause in Contracts

Consolidation, Merger, Sale, etc. (a) Lessee shall not consolidate with any Person, merge with or into any Person or convey, transfer or lease to any Person all or substantially all of its assets in any single transaction (or series of related transactions) unless immediately after giving effect to such transaction, each of the conditions set forth in clauses (i) through (vi) below shall have been satisfied or, in the case of clause (vi) below, waived by each Participant, which waiver shall not be unreasonably withheld or delayed: (i) the Person formed by such consolidation with or into which Lessee shall be merged or the Person which shall acquire by conveyance, transfer or lease all or substantially all of the assets of Lessee (the "Surviving Company") shall be a corporation, partnership, association or other business entity that is organized under the laws of the United States of America, a state thereof or the District of Columbia; (ii) (A) the Surviving Company shall execute and deliver to each of the parties hereto an agreement, in form and substance reasonably satisfactory to the Participants, Certificate Trustee and Information Agent, containing the assumption by the Surviving Company of the due and punctual payment, performance and observation of each obligation, covenant and agreement of Lessee under this Agreement and each other Operative Document to which, immediately prior to such transaction, Lessee was a party; and (B) Guarantor shall execute and deliver to each of the parties hereto a Participation Agreement reaffirmation, in form and substance satisfactory to the Participants and Information Agent, that each and all of the obligations of Guarantor under this Agreement and the Guaranty remain, and will remain, in full force and effect, notwithstanding the transaction or transactions giving rise to the requirement that such reaffirmation be delivered hereunder; (iii) no Lease Default, Lease Event of Default or Construction Agency Event of Default shall have occurred or would occur as a result thereof and be continuing, and no Event of Loss shall have occurred or would occur as a result thereof; (iv) the title of Certificate Trustee to the Equipment and Systems and Certificate Trustee's rights under this Agreement and the other Operative Documents and the first and prior Lien of the Security Agreement on the Collateral shall not be adversely affected; (v) Lessee shall have delivered to the Participants, Certificate Trustee and Administrative Agent an Officer's Certificate and an opinion of counsel reasonably satisfactory to each such Person stating that such transaction complies with this Section 5.2, that all conditions to the consummation of such transaction have been fulfilled and that all Governmental Approvals required in connection with such transaction have been obtained, given or made; and (vi) the Indirect Beneficial Ownership Interest of Guarantor in each of the Leased Assets and Owned Assets included in each Qualified MAN or FCL shall be equal to or greater than forty-nine percent (49%) after such merger, consolidation or transfer; provided, however, that, subsequent to an initial public offering by Lessee that reduces the Indirect Beneficial Ownership Interest of Guarantor to below forty-nine percent (49%), no such consolidation, merger, conveyance, transfer or lease shall reduce the Indirect Beneficial Ownership Interest of Guarantor, calculated On a Fully Diluted Basis, below the Indirect Beneficial Ownership Interest of Guarantor, calculated On a Fully Diluted Basis, maintained immediately after such initial public offering. Upon the consummation of such transaction, the Surviving Company, shall succeed to, and be substituted for, and may exercise every right and power of, Lessee immediately prior to such transaction under this Agreement and each other Operative Document to which Lessee was a party immediately prior to such transaction, Participation Agreement with the same effect as if the Surviving Company had been named herein and therein. Notwithstanding the foregoing provisions of this Section 5.2(a), no conveyance, transfer or lease of all or any portion of the assets of Lessee shall, except as provided in Section 10.2 of the Lease, release either of Lessee or Guarantor from its respective payment or other obligations under this Agreement, the Guaranty or any other Operative Document without the prior written consent of Certificate Trustee, Information Agent and each Participant. (b) Lessee shall not transfer, assign or sublease any Leased Assets except in accordance with Section 5.2(a) and Article X of the Lease. Lessee may not assign, transfer possession of or lease, in whole or in part, any of its right, title or interest in or to the Owned Assets relating to a Qualified MAN or FCL to any Person at any time, and any such assignment, transfer of possession or lease shall be void, unless: (i) after giving effect to any such assignment, transfer of possession or lease (including all prior transactions of any of the foregoing types) the Indirect Beneficial Ownership Interest of Guarantor in all of the Leased Assets and in all of the Owned Assets, respectively, included in such Qualified MAN or FCL would be equal to or greater than forty-nine percent (49%); provided, however, that, subsequent to an initial public offering by Lessee that reduces the Indirect Beneficial Ownership Interest of Guarantor to below forty-nine percent (49%), no such assignment, transfer or lease shall reduce the Indirect Beneficial Ownership Interest of Guarantor, calculated On a Fully Diluted Basis, below the Indirect Beneficial Ownership Interest of Guarantor, calculated On a Fully Diluted Basis, maintained immediately after such initial public offering, or (ii) such assignment, transfer of possession or lease is to a Subsidiary of Guarantor, in which event such Subsidiary shall be bound by and subject to the provisions set forth in this Section 5.2(b), or (iii) such assignment, transfer of possession or lease is consented to by each Participant, which consent shall not be unreasonably withheld or delayed, or (iv) such assignment, transfer of possession or lease complies with Section 5.2(a). (c) Each Interested Subsidiary will be bound by, and entitled to the benefits of, Sections 5.2(a) and (b) as if it were named in each such Section in lieu of Lessee. Any Subsidiary, upon becoming an Interested Subsidiary, shall, as a condition precedent to the transfer or lease of Owned Assets or Leased Assets to it, deliver to Certificate Trustee a duly authorized and executed certificate declaring that it agrees to be bound by, and is entitled to the benefits of, this Article V.

Consolidation, Merger, Sale, etc. (a) Lessee shall not consolidate with any Person, merge with or into any Person or convey, transfer or lease to any Person (except as permitted by Section 12.1 of the Lease) all or substantially all of its assets in any single transaction (or series of related transactions) unless ), unless, immediately after giving effect to such transaction, each of the conditions set forth in clauses (i) through (viv) below shall have been satisfied or, in the case of clause (vi) below, waived by each Participant, which waiver shall not be unreasonably withheld or delayedsatisfied: (i) the The Person formed by such consolidation with or into which Lessee shall be merged or the Person which shall acquire by conveyance, transfer or lease all or substantially all of the assets of Lessee (the "Surviving Company") ), if other than Lessee immediately prior to such transaction, shall be a corporation, partnership, association or other business entity corporation that is organized under the laws of the United States of America, a state thereof or the District of Columbia; (ii) the Surviving Company shall be a single purpose, wholly-owned direct or indirect subsidiary of Genesis, the sole purpose of which is to enter into (Aor assume) and perform its obligations under the transactions contemplated by the Operative Documents and hold its rights in and to the Sites; (iii) the Surviving Company Company, if other than Lessee immediately prior to such transaction, shall execute and deliver to each of the parties hereto an agreement, in form and substance reasonably satisfactory to the Participants, Certificate Trustee Lessor and Information Agent, containing the assumption by the Surviving Company of the due and punctual payment, performance and observation of each obligation, covenant and agreement of Lessee under this Agreement and each other Operative Document to which, immediately prior to such transaction, Lessee was a party; and (B) Guarantor shall execute and deliver to each of the parties hereto a Participation Agreement reaffirmation, in form and substance satisfactory to the Participants and Information Agent, that each and all of the obligations of Guarantor under this Agreement and the Guaranty remain, and will remain, in full force and effect, notwithstanding the transaction or transactions giving rise to the requirement that such reaffirmation be delivered hereunder; (iiiiv) no Lease Default, Payment/Bankruptcy Default or Lease Event of Default or Construction Agency Event (including as a result of Default the breach of Section 3 of either of the Guaranties) shall have occurred and be continuing or would occur as a result thereof and be continuing, and no Event of Loss shall have occurred or would occur as a result thereof; (ivv) the title of Certificate Trustee Lessor to the Equipment Sites and Systems Lessor's and Certificate Trustee's Lenders' rights under this Agreement and the other Operative Documents and the first and prior Lien of the Security Agreement Mortgage on the Collateral shall not be adversely affected;; and (vvi) Lessee shall have delivered to Agent, on behalf of Lessor and the ParticipantsLenders, Certificate Trustee and Administrative Agent an Officer's Certificate and an opinion of counsel reasonably satisfactory to each such Person stating that such transaction complies with this Section 5.2, that all conditions to the consummation of such transaction have been fulfilled and that all Governmental Approvals Actions required in connection with such transaction have been obtained, given or made; and (vi) the Indirect Beneficial Ownership Interest of Guarantor in each of the Leased Assets and Owned Assets included in each Qualified MAN or FCL shall be equal to or greater than forty-nine percent (49%) after such merger, consolidation or transfer; provided, however, that, subsequent to an initial public offering by Lessee that reduces the Indirect Beneficial Ownership Interest of Guarantor to below forty-nine percent (49%), no such consolidation, merger, conveyance, transfer or lease shall reduce the Indirect Beneficial Ownership Interest of Guarantor, calculated On a Fully Diluted Basis, below the Indirect Beneficial Ownership Interest of Guarantor, calculated On a Fully Diluted Basis, maintained immediately after such initial public offering. Upon the consummation of such transaction, the Surviving Company, if other than Lessee immediately prior thereto, shall succeed to, and be substituted for, and may exercise every right and power of, Lessee immediately prior to such transaction under this Agreement and each other Operative Document to which Lessee was a party immediately prior to such transaction, Participation Agreement with the same effect as if the Surviving Company had been named herein and therein. Notwithstanding the foregoing provisions of this Section 5.2(a)5.2, no conveyance, transfer or lease of all or any portion substantially all of the assets of Lessee shall, except as provided in Section 10.2 of the Lease, shall release either of Lessee or Guarantor from its respective payment or other obligations under this Agreement, the Guaranty Agreement or any other Operative Document without the prior written consent of Certificate Trustee, Information Agent Lessor and each ParticipantAgent. (b) Lessee shall not transfer, assign or sublease any Leased Assets except in accordance with Section 5.2(a) and Article X of the Lease. Lessee may not assign, transfer possession of or lease, in whole or in part, any of its right, title or interest in or to the Owned Assets relating to a Qualified MAN or FCL to any Person at any time, and any such assignment, transfer of possession or lease shall be void, unless: (i) after giving effect to any such assignment, transfer of possession or lease (including all prior transactions of any of the foregoing types) the Indirect Beneficial Ownership Interest of Guarantor in all of the Leased Assets and in all of the Owned Assets, respectively, included in such Qualified MAN or FCL would be equal to or greater than forty-nine percent (49%); provided, however, that, subsequent to an initial public offering by Lessee that reduces the Indirect Beneficial Ownership Interest of Guarantor to below forty-nine percent (49%), no such assignment, transfer or lease shall reduce the Indirect Beneficial Ownership Interest of Guarantor, calculated On a Fully Diluted Basis, below the Indirect Beneficial Ownership Interest of Guarantor, calculated On a Fully Diluted Basis, maintained immediately after such initial public offering, or (ii) such assignment, transfer of possession or lease is to a Subsidiary of Guarantor, in which event such Subsidiary shall be bound by and subject to the provisions set forth in this Section 5.2(b), or (iii) such assignment, transfer of possession or lease is consented to by each Participant, which consent shall not be unreasonably withheld or delayed, or (iv) such assignment, transfer of possession or lease complies with Section 5.2(a). (c) Each Interested Subsidiary will be bound by, and entitled to the benefits of, Sections 5.2(a) and (b) as if it were named in each such Section in lieu of Lessee. Any Subsidiary, upon becoming an Interested Subsidiary, shall, as a condition precedent to the transfer or lease of Owned Assets or Leased Assets to it, deliver to Certificate Trustee a duly authorized and executed certificate declaring that it agrees to be bound by, and is entitled to the benefits of, this Article V.

Consolidation, Merger, Sale, etc. (a) Subject to Section 5.4, no Lessee shall not consolidate with any Person, merge with or into any Person or convey, transfer or lease (other than subleases and assignments permitted by the terms of the Master Lease) to any Person all or substantially all of its assets in any single transaction (or series of related transactions) unless ), unless, immediately after giving effect to such transaction, each of the conditions set forth in clauses (i) through (vivii) below shall have been satisfied or, in the case of clause (vi) below, waived by each Participant, which waiver shall not be unreasonably withheld or delayedsatisfied: (i) the Person formed by such consolidation with or into which such Lessee shall be merged or the Person which shall acquire by conveyance, transfer or lease all or substantially all of the assets of such Lessee (the "Surviving Company") shall be a corporation, partnership, association or other business entity that is organized under the laws of the United States of America, a state thereof or the District of Columbia; (ii) (A) the Surviving Company (if other than such Lessee) shall execute and deliver to each of the parties hereto an agreement, in form and substance reasonably satisfactory to the ParticipantsLenders, Certificate Trustee and Information the Administrative Agent, containing the assumption by the Surviving Company of the due and punctual payment, performance and observation of each obligation, covenant and agreement of such Lessee under this Agreement and each other Operative Document to which, immediately prior to such transaction, such Lessee was a party; and ; (Biii) each Guarantor shall execute and deliver to each of the parties hereto a Participation Agreement reaffirmation, in form and substance satisfactory to the Participants Lenders, Trustee and Information the Administrative Agent, that each and all of the obligations of such Guarantor under this Agreement and the Guaranty remain, and will remain, in full force and effect, notwithstanding the transaction or transactions giving rise to the requirement that such reaffirmation be delivered hereunder; (iiiiv) no Lease Default, Lease Event of Default Default, Event of Loss or Construction Agency Event of Default shall have occurred or would occur as a result thereof and be continuing, and no Event of Loss shall have occurred or would occur as a result thereof; (iv) the title of Certificate Trustee to the Equipment and Systems and Certificate Trustee's rights under this Agreement and the other Operative Documents and the first and prior Lien of the Security Agreement on the Collateral shall not be adversely affected; (v) Lessee shall have delivered the title of Trustee to the Participants, Certificate Trustee Leased Property and Administrative Agent an OfficerTrustee's Certificate and an opinion of counsel reasonably satisfactory to each such Person stating that such transaction complies with this Section 5.2, that all conditions to the consummation of such transaction have been fulfilled and that all Governmental Approvals required in connection with such transaction have been obtained, given or made; and (vi) the Indirect Beneficial Ownership Interest of Guarantor in each of the Leased Assets and Owned Assets included in each Qualified MAN or FCL shall be equal to or greater than forty-nine percent (49%) after such merger, consolidation or transfer; provided, however, that, subsequent to an initial public offering by Lessee that reduces the Indirect Beneficial Ownership Interest of Guarantor to below forty-nine percent (49%), no such consolidation, merger, conveyance, transfer or lease shall reduce the Indirect Beneficial Ownership Interest of Guarantor, calculated On a Fully Diluted Basis, below the Indirect Beneficial Ownership Interest of Guarantor, calculated On a Fully Diluted Basis, maintained immediately after such initial public offering. Upon the consummation of such transaction, the Surviving Company, shall succeed to, and be substituted for, and may exercise every right and power of, Lessee immediately prior to such transaction under this Agreement and each other Operative Document to which Lessee was a party immediately prior to such transaction, Participation Agreement with the same effect as if the Surviving Company had been named herein and therein. Notwithstanding the foregoing provisions of this Section 5.2(a), no conveyance, transfer or lease of all or any portion of the assets of Lessee shall, except as provided in Section 10.2 of the Lease, release either of Lessee or Guarantor from its respective payment or other obligations under this Agreement, the Guaranty or any other Operative Document without the prior written consent of Certificate Trustee, Information Agent and each Participant. (b) Lessee shall not transfer, assign or sublease any Leased Assets except in accordance with Section 5.2(a) and Article X of the Lease. Lessee may not assign, transfer possession of or lease, in whole or in part, any of its right, title or interest in or to the Owned Assets relating to a Qualified MAN or FCL to any Person at any time, and any such assignment, transfer of possession or lease shall be void, unless: (i) after giving effect to any such assignment, transfer of possession or lease (including all prior transactions of any of the foregoing types) the Indirect Beneficial Ownership Interest of Guarantor in all of the Leased Assets and in all of the Owned Assets, respectively, included in such Qualified MAN or FCL would be equal to or greater than forty-nine percent (49%); provided, however, that, subsequent to an initial public offering by Lessee that reduces the Indirect Beneficial Ownership Interest of Guarantor to below forty-nine percent (49%), no such assignment, transfer or lease shall reduce the Indirect Beneficial Ownership Interest of Guarantor, calculated On a Fully Diluted Basis, below the Indirect Beneficial Ownership Interest of Guarantor, calculated On a Fully Diluted Basis, maintained immediately after such initial public offering, or (ii) such assignment, transfer of possession or lease is to a Subsidiary of Guarantor, in which event such Subsidiary shall be bound by and subject to the provisions set forth in this Section 5.2(b), or (iii) such assignment, transfer of possession or lease is consented to by each Participant, which consent shall not be unreasonably withheld or delayed, or (iv) such assignment, transfer of possession or lease complies with Section 5.2(a). (c) Each Interested Subsidiary will be bound by, and entitled to the benefits of, Sections 5.2(a) and (b) as if it were named in each such Section in lieu of Lessee. Any Subsidiary, upon becoming an Interested Subsidiary, shall, as a condition precedent to the transfer or lease of Owned Assets or Leased Assets to it, deliver to Certificate Trustee a duly authorized and executed certificate declaring that it agrees to be bound by, and is entitled to the benefits of, this Article V.rights

Consolidation, Merger, Sale, etc. (a) Lessee shall not consolidate with any Person, merge with or into any Person Person, or convey, transfer transfer, lease or lease otherwise dispose of to any Person all or substantially all of its assets in any single transaction (or series of related transactions) unless immediately after giving effect to such transaction), each of the conditions set forth in clauses (i) through (vi) below shall have been satisfied or, in the case of clause (vi) below, waived by each Participant, which waiver shall not be unreasonably withheld or delayedunless: (i) the in each case, such Person formed by such consolidation with or into which Lessee shall be merged or the Person which shall acquire by conveyance, transfer or lease all or substantially all of the assets of Lessee (the "Surviving CompanyCorporation") shall be a corporation, partnership, association corporation or other business entity that is organization organized under the laws of the United States of America, a state or commonwealth thereof or the District of ColumbiaColumbia and shall have assumed in writing each obligation, and succeeded to each right, of Lessee under the Operative Documents to which Lessee is a party; (ii) (A) the Surviving Company no Lease Default or Lease Event of Default shall execute and deliver exist prior to each of the parties hereto an agreement, in form and substance reasonably satisfactory to the Participants, Certificate Trustee and Information Agent, containing the assumption by the Surviving Company of the due and punctual payment, performance and observation of each obligation, covenant and agreement of Lessee under this Agreement and each other Operative Document to which, immediately prior or after giving effect to such transaction, Lessee was a party; and (B) Guarantor shall execute and deliver to each of the parties hereto a Participation Agreement reaffirmation, in form and substance satisfactory to the Participants and Information Agent, that each and all of the obligations of Guarantor under this Agreement and the Guaranty remain, and will remain, in full force and effect, notwithstanding the transaction or transactions giving rise to the requirement that such reaffirmation be delivered hereunder; (iii) no Lease Default, Lease Event of Default or Construction Agency Event of Default shall have occurred or would occur as a result thereof and be continuing, and no Event of Loss shall have occurred or would occur as a result thereof; (iv) the title of Certificate Trustee to the Equipment and Systems and Certificate Trustee's rights under this Agreement and the other Operative Documents and the first and prior Lien of the Security Agreement on the Collateral shall not be adversely affected; (v) Lessee Surviving Corporation shall have delivered to each of the Participants, Participants (including the Agent) an Officers' Certificate Trustee and Administrative Agent an Officer's Certificate and an opinion of counsel reasonably satisfactory to each such Person stating that such transaction complies with the terms and conditions of this Section 5.2, 20.03(b) and that all conditions Governmental Action, if any, required prior to the consummation of such transaction have been fulfilled and that all Governmental Approvals required in connection with such transaction have been obtained, given or madeobtained unless the failure to obtain such Governmental Action would not have a Material Adverse Effect on the ability of the Surviving Corporation to perform its obligations under the Operative Documents; and (vi) and the Indirect Beneficial Ownership Interest of Guarantor in Surviving Corporation shall represent and warrant to each of the Leased Assets Participants and Owned Assets included shall have caused to be delivered to each of the Participants an opinion of counsel, in form and substance. reasonably satisfactory to each of the Participants, that (x) the Surviving Corporation is a corporation in good standing in the state of its incorporation; (y) all documents executed and delivered by Surviving Corporation pursuant to this Section 20.03(b) have been duly authorized, executed and delivered by the Surviving Corporation and constitute the valid, legal and binding obligations of Surviving Corporation; and (z) all of the Operative Documents to which Lessee is a party will, upon the consummation of such transaction, be the valid, legal and binding obligations of Surviving Corporation, subject in each Qualified MAN or FCL shall be equal case to or greater than forty-nine percent customary exceptions for creditors' rights as well as such other customary exceptions as were contained in the legal opinions delivered concurrently with the execution and delivery of the Lease and the other Operative Documents being executed and delivered as of the date hereof; (49%iv) after such merger, consolidation or transfer; provided, however, that, subsequent to an initial public offering by Lessee that reduces the Indirect Beneficial Ownership Interest of Guarantor to below forty-nine percent (49%), no such consolidation, merger, conveyance, transfer or lease shall reduce the Indirect Beneficial Ownership Interest of Guarantor, calculated On a Fully Diluted Basis, below the Indirect Beneficial Ownership Interest of Guarantor, calculated On a Fully Diluted Basis, maintained immediately after such initial public offering. Upon the consummation of such transaction, the Surviving CompanyCorporation, if other than Lessee, shall succeed to, and be substituted for, and may exercise every right and power of, Lessee immediately prior to such transaction under this Agreement and each other Operative Document to which Lessee was a party immediately prior to such transaction, Participation Agreement with the same effect as if the Surviving Company Corporation had been named herein and therein. Notwithstanding the foregoing provisions of this Section 5.2(a), no conveyance, transfer or lease of all or any portion of the assets of Lessee shall, except as provided in Section 10.2 of the Lease, release either of Lessee or Guarantor from its respective payment or other obligations under this Agreement, the Guaranty or any other Operative Document without the prior written consent of Certificate Trustee, Information Agent and each Participant. (bv) Lessee shall not transfer, assign or sublease any Leased Assets except in accordance with Section 5.2(a) and Article X of the Lease. Lessee may not assign, transfer possession of or lease, in whole or in part, any of its right, title or interest in or After giving full effect to the Owned Assets relating transaction, the Surviving Corporation shall have a Lessee's Adjusted Net Worth at least equal to the Lessee's Adjusted Net Worth prior to the consummation of such transaction and a Qualified MAN senior long-term unsecured debt rating by the Rating Agencies at least equal to the following: (A) if Lessees s senior long-term unsecured debt rating prior to such transaction is higher than or FCL equal to any Person at any timeA- by Standard & Poor's, and any such assignmentor the equivalent by Moody's, transfer of possession or lease shall be void, unless: (i) after giving effect to any such assignment, transfer of possession or lease (including all prior transactions of any of then the foregoing types) the Indirect Beneficial Ownership Interest of Guarantor in all of the Leased Assets and in all of the Owned Assets, respectively, included in such Qualified MAN or FCL would Surviving Corxxxxxxxn's post-merger senior long-term unsecured debt rating must be equal to or greater higher than fortyBBB+ by Standard & Poor's or the equivalent by Moody's; (B) if Lesxxx'x xenior long-nine percent (49%); term unsecured debt rating prior to the merger is equal to or less than BBB+ by Standard & Poor's or the equivalent by Moody's, then the Surviving Corpoxxxxxx's post-merger senior long-term unsecured debt rating must be no less than the next lower level then the premerger rating, but in no event lower than BBB- by Standard & Poor's or the equivalent by Moody's, provided, however, thatxx the Lessee's senior long-term unsecured debt rating prior to the merger is below Investment Grade, subsequent to an initial public offering by Lessee that reduces then the Indirect Beneficial Ownership Interest of Guarantor to below fortySurviving Corporation's post-nine percent (49%), no such assignment, transfer or lease shall reduce the Indirect Beneficial Ownership Interest of Guarantor, calculated On a Fully Diluted Basis, below the Indirect Beneficial Ownership Interest of Guarantor, calculated On a Fully Diluted Basis, maintained immediately after such initial public offering, or (ii) such assignment, transfer of possession or lease is to a Subsidiary of Guarantor, in which event such Subsidiary merger long-term unsecured debt rating shall be bound by and subject no lower than the Lessee's senior long-term unsecured debt rating prior to the provisions set forth in this Section 5.2(b), or (iii) such assignment, transfer of possession or lease is consented to by each Participant, which consent shall not be unreasonably withheld or delayed, or (iv) such assignment, transfer of possession or lease complies with Section 5.2(a).merger; and (cC) Each Interested Subsidiary will be bound by, and entitled if Lessee is unrated prior to the benefits ofmerger, Sections 5.2(a) and (b) as if it were named in each such Section in lieu then the Surviving Corporation shall have an Adjusted Net Worth equal to the pre-merger Adjusted Net Worth of Lessee. Any Subsidiary, upon becoming an Interested Subsidiary, shall, as a condition precedent to the transfer or lease of Owned Assets or Leased Assets to it, deliver to Certificate Trustee a duly authorized and executed certificate declaring that it agrees to be bound by, and is entitled to the benefits of, this Article V..

Consolidation, Merger, Sale, etc. (a) Lessee shall not consolidate with any Person, merge Enter into a transaction of merger with or consolidation into any Person or conveysell, transfer lease, or lease to any Person otherwise dispose of all or substantially all of its assets in any single transaction (or series of related transactions) unless immediately after giving effect to such transaction, each of the conditions set forth in clauses Borrower and its Subsidiaries (i) through (vi) below shall have been satisfied ortaken as a whole), in the case of clause (vi) below, waived by each Participant, which waiver shall not be unreasonably withheld or delayedexcept: (ia) the Person formed by such consolidation any Subsidiary Guarantor may be merged with or into which Lessee shall be merged consolidated into, or the Person which shall acquire by conveyancemay sell, transfer lease, or lease dispose of all or substantially all of its assets to the assets Borrower or another Subsidiary Guarantor; (b) any Subsidiary may be merged with or consolidated into any Person that is or will upon the consummation of Lessee (the "Surviving Company") shall such merger or consolidation be a corporation, partnership, association or other business entity Loan Party (subject to compliance with Section 5.09 of this Agreement within the timeframe set forth therein); (c) any Subsidiary that is organized under not a Loan Party may be merged with or consolidated into, or may sell, lease, or dispose of all or substantially all of its assets to any other Subsidiary that is not a Loan Party; (d) any Person may be merged into or consolidated with the laws Borrower or any Subsidiary of the United States Borrower, provided (i) in the case of Americaany such merger with or consolidation into the Borrower, a state thereof or the District of Columbia; Borrower is the surviving Person, (ii) (A) in the Surviving Company shall execute and deliver to each case of any such merger with or consolidation into a Subsidiary Guarantor, the parties hereto an agreement, in form and substance reasonably satisfactory to Subsidiary Guarantor is the Participants, Certificate Trustee and Information Agent, containing the assumption by the Surviving Company of the due and punctual payment, performance and observation of each obligation, covenant and agreement of Lessee under this Agreement and each other Operative Document to which, immediately prior to such transaction, Lessee was a party; and (B) Guarantor shall execute and deliver to each of the parties hereto a Participation Agreement reaffirmation, in form and substance satisfactory to the Participants and Information Agent, that each and all of the obligations of Guarantor under this Agreement and the Guaranty remain, and will remain, in full force and effect, notwithstanding the transaction or transactions giving rise to the requirement that such reaffirmation be delivered hereunder; surviving Person (iii) such merger or consolidation does not violate any other provision of this Agreement, (iv) no Lease Default, Lease Event of Default or Construction Agency Event of Default shall have occurred and be continuing or would occur as a result thereof therefrom and be continuing, and no Event of Loss shall have occurred or would occur as a result thereof; (iv) the title of Certificate Trustee to the Equipment and Systems and Certificate Trustee's rights under this Agreement and the other Operative Documents and the first and prior Lien of the Security Agreement on the Collateral shall not be adversely affected; (v) Lessee shall have delivered the representations and warranties contained in Article III of this Agreement shall, except to the Participants, Certificate Trustee and Administrative Agent an Officer's Certificate and an opinion of counsel reasonably satisfactory to each such Person stating extent that such transaction complies with this Section 5.2, that all conditions to the consummation of such transaction have been fulfilled and that all Governmental Approvals required in connection with such transaction have been obtained, given or made; and (vi) the Indirect Beneficial Ownership Interest of Guarantor in each of the Leased Assets and Owned Assets included in each Qualified MAN or FCL shall be equal to or greater than forty-nine percent (49%) after such merger, consolidation or transfer; provided, however, that, subsequent they relate solely to an initial public offering earlier date, be true in all material respects (or in all respects if such representation or warranty is qualified by Lessee that reduces the Indirect Beneficial Ownership Interest of Guarantor to below forty-nine percent (49%), no such consolidation, merger, conveyance, transfer materiality or lease shall reduce the Indirect Beneficial Ownership Interest of Guarantor, calculated On a Fully Diluted Basis, below the Indirect Beneficial Ownership Interest of Guarantor, calculated On a Fully Diluted Basis, maintained immediately after such initial public offering. Upon the consummation of such transaction, the Surviving Company, shall succeed to, and be substituted for, and may exercise every right and power of, Lessee immediately prior to such transaction under this Agreement and each other Operative Document to which Lessee was a party immediately prior to such transaction, Participation Agreement Material Adverse Effect) with the same effect as if the Surviving Company though such representations and warranties had been named herein and thereinmade at such time. Notwithstanding the foregoing provisions of this Section 5.2(a), no conveyance, transfer or lease of all or any portion of the assets of Lessee shall, except as provided in Section 10.2 of the Lease, release either of Lessee or Guarantor from its respective payment or other obligations under this Agreement, the Guaranty or any other Operative Document without the prior written consent of Certificate Trustee, Information Agent and each Participant. (b) Lessee shall not transfer, assign or sublease any Leased Assets except in accordance with Section 5.2(a) and Article X of the Lease. Lessee may not assign, transfer possession of or lease, in whole or in part, any of its right, title or interest in or to the Owned Assets relating to a Qualified MAN or FCL to any Person at any time, and any such assignment, transfer of possession or lease shall be void, unless: (i) after giving effect to any such assignment, transfer of possession or lease (including all prior transactions of any of the foregoing types) the Indirect Beneficial Ownership Interest of Guarantor in all of the Leased Assets and in all of the Owned Assets, respectively, included in such Qualified MAN or FCL would be equal to or greater than forty-nine percent (49%); provided, however, that, subsequent to an initial public offering by Lessee that reduces the Indirect Beneficial Ownership Interest of Guarantor to below forty-nine percent (49%), no such assignment, transfer or lease shall reduce the Indirect Beneficial Ownership Interest of Guarantor, calculated On a Fully Diluted Basis, below the Indirect Beneficial Ownership Interest of Guarantor, calculated On a Fully Diluted Basis, maintained immediately after such initial public offering, or (ii) such assignment, transfer of possession or lease is to a Subsidiary of Guarantor, in which event such Subsidiary shall be bound by and subject to the provisions set forth in this Section 5.2(b), or (iii) such assignment, transfer of possession or lease is consented to by each Participant, which consent shall not be unreasonably withheld or delayed, or (iv) such assignment, transfer of possession or lease complies with Section 5.2(a). (c) Each Interested Subsidiary will be bound by, and entitled to the benefits of, Sections 5.2(a) and (b) as if it were named in each such Section in lieu of Lessee. Any Subsidiary, upon becoming an Interested Subsidiary, shall, as a condition precedent to the transfer or lease of Owned Assets or Leased Assets to it, deliver to Certificate Trustee a duly authorized and executed certificate declaring that it agrees to be bound by, and is entitled to the benefits of, this Article V.62

Consolidation, Merger, Sale, etc. (a) Lessee shall The Parent Guarantor will not directly or indirectly consolidate with or merge into any Personother corporation, merge limited liability company, partnership or other person, or permit any other corporation, limited liability company, partnership or other person to consolidate with or merge into any Person it, or conveysell, transfer lease, assign, transfer, abandon or lease to any Person otherwise dispose of all or substantially all of its assets in any single transaction (properties or series of related transactions) unless immediately after giving effect to such transactionassets, each of except that the conditions set forth in clauses (i) through (vi) below shall have been satisfied or, in the case of clause (vi) below, waived by each Participant, which waiver shall not be unreasonably withheld or delayed: (i) the Person formed by such consolidation Parent Guarantor may consolidate with or merge into which Lessee shall be merged any other corporation, or the Person which shall acquire by conveyancepermit any other corporation to consolidate with or merge into it, or sell or otherwise transfer or lease all or substantially all of its properties and assets, provided that, (a) the assets of Lessee (the "Surviving Company") acquiring or surviving person shall be a corporation, partnership, association or other business entity that is solvent corporation organized and existing under the laws of the United States of America, a or any state thereof or the District of Columbia; , and (iiif other than the Parent Guarantor) (A) shall prior to the Surviving Company shall effectiveness of such transaction, execute and deliver to each the Administrative Agent and the Lenders an agreement by which such acquiring or surviving person shall expressly and unconditionally assume all the obligations of the parties hereto Parent Guarantor hereunder, together with an agreementopinion, satisfactory in substance and form and substance to the Administrative Agent, of counsel, reasonably satisfactory to the Participants, Certificate Trustee and Information Administrative Agent, containing the assumption by the Surviving Company of such acquiring or surviving person, as to the due authorization, execution and punctual payment, performance delivery and observation the enforceability of each obligation, covenant such agreement and agreement of Lessee under this Agreement and each other Operative Document to which, immediately prior as to such transaction, Lessee was a party; and (B) Guarantor shall execute and deliver to each of other matters as the parties hereto a Participation Agreement reaffirmation, in form and substance satisfactory to the Participants and Information Agent, that each and all of the obligations of Guarantor under this Agreement and the Guaranty remain, and will remain, in full force and effect, notwithstanding the transaction or transactions giving rise to the requirement that such reaffirmation be delivered hereunderAdministrative Agent may reasonably request; (iiib) immediately prior to, and immediately after giving effect to, such transaction (and such assumption), no Lease DefaultChange of Control shall exist, Lease Event of Default or Construction Agency Event of Default unless effective provision shall have occurred or would occur as a result thereof and be continuing, and no Event been made for the prepayment of Loss shall have occurred or would occur as a result thereof; (iv) the title of Certificate Trustee to the Equipment and Systems and Certificate Trustee's rights under this Agreement and the other Operative Documents and the first and prior Lien all Obligations of the Security Borrower and for termination of the Commitments of the Lenders under the Credit Agreement on the Collateral shall not be adversely affected; (v) Lessee shall have delivered to the Participants, Certificate Trustee and Administrative Agent an Officer's Certificate and an opinion of counsel reasonably satisfactory to each such Person stating that such transaction complies with this Section 5.2, that all conditions to the consummation of such transaction have been fulfilled and that all Governmental Approvals required in connection contemporaneously with such transaction have been obtained, given or madeChange of Control; and (vic) the Indirect Beneficial Ownership Interest of Guarantor in each of the Leased Assets immediately prior to, and Owned Assets included in each Qualified MAN or FCL shall be equal to or greater than forty-nine percent immediately after giving effect to, such transaction (49%) after and such merger, consolidation or transfer; provided, however, that, subsequent to an initial public offering by Lessee that reduces the Indirect Beneficial Ownership Interest of Guarantor to below forty-nine percent (49%assumption), no such consolidationcondition or event shall exist which constitutes or which, mergerafter notice or lapse of time or both, conveyance, would constitute an Event of Default. No sale or transfer of properties or lease assets permitted by this section 12 shall reduce release the Indirect Beneficial Ownership Interest of Guarantor, calculated On a Fully Diluted Basis, below the Indirect Beneficial Ownership Interest of Guarantor, calculated On a Fully Diluted Basis, maintained immediately after such initial public offering. Upon the consummation of such transaction, the Surviving Company, shall succeed to, and be substituted for, and may exercise every right and power of, Lessee immediately prior to such transaction under this Agreement and each other Operative Document to which Lessee was a party immediately prior to such transaction, Participation Agreement with the same effect as if the Surviving Company had been named herein and therein. Notwithstanding the foregoing provisions of this Section 5.2(a), no conveyance, transfer or lease of all or any portion of the assets of Lessee shall, except as provided in Section 10.2 of the Lease, release either of Lessee or Parent Guarantor from its respective payment or other obligations under this Agreement, the Guaranty or any other Operative Document without the prior written consent of Certificate Trustee, Information Agent and each Participant. (b) Lessee shall not transfer, assign or sublease any Leased Assets except in accordance with Section 5.2(a) and Article X of the Lease. Lessee may not assign, transfer possession of or lease, in whole or in part, any of its right, title or interest in or to the Owned Assets relating to a Qualified MAN or FCL to any Person at any time, and any such assignment, transfer of possession or lease shall be void, unless: (i) after giving effect to any such assignment, transfer of possession or lease (including all prior transactions of any of the foregoing types) the Indirect Beneficial Ownership Interest of Guarantor in all of the Leased Assets and in all of the Owned Assets, respectively, included in such Qualified MAN or FCL would be equal to or greater than forty-nine percent (49%); provided, however, that, subsequent to an initial public offering by Lessee that reduces the Indirect Beneficial Ownership Interest of Guarantor to below forty-nine percent (49%), no such assignment, transfer or lease shall reduce the Indirect Beneficial Ownership Interest of Guarantor, calculated On a Fully Diluted Basis, below the Indirect Beneficial Ownership Interest of Guarantor, calculated On a Fully Diluted Basis, maintained immediately after such initial public offering, or (ii) such assignment, transfer of possession or lease is to a Subsidiary of Guarantor, in which event such Subsidiary shall be bound by and subject to the provisions set forth in this Section 5.2(b), or (iii) such assignment, transfer of possession or lease is consented to by each Participant, which consent shall not be unreasonably withheld or delayed, or (iv) such assignment, transfer of possession or lease complies with Section 5.2(a)obligations hereunder. (c) Each Interested Subsidiary will be bound by, and entitled to the benefits of, Sections 5.2(a) and (b) as if it were named in each such Section in lieu of Lessee. Any Subsidiary, upon becoming an Interested Subsidiary, shall, as a condition precedent to the transfer or lease of Owned Assets or Leased Assets to it, deliver to Certificate Trustee a duly authorized and executed certificate declaring that it agrees to be bound by, and is entitled to the benefits of, this Article V.

Consolidation, Merger, Sale, etc. (a) Lessee shall not consolidate with any Person, merge with or into any Person Person, or convey, transfer transfer, lease or lease otherwise dispose of to any Person all or substantially all of its assets in any single transaction (or series of related transactions) unless immediately after giving effect to such transaction), each of the conditions set forth in clauses (i) through (vi) below shall have been satisfied or, in the case of clause (vi) below, waived by each Participant, which waiver shall not be unreasonably withheld or delayedunless: (i) the in each case, such Person formed by such consolidation with or into which Lessee shall be merged or the Person which shall acquire by conveyance, transfer or lease all or substantially all of the assets of Lessee (the "Surviving CompanyCorporation") shall be a corporation, partnership, association corporation or other business entity that is organization organized under the laws of the United States of America, a state or commonwealth thereof or the District of ColumbiaColumbia and shall have assumed in writing each obligation, and succeeded to each right, of Lessee under the Operative Documents to which Lessee is a party; (ii) no Lease Default or Lease Event of Default shall exist prior to or after giving effect to such transaction; (Aiii) the Surviving Company Corporation shall execute and deliver have delivered to each of the parties hereto Participants (including the Agent) an agreementOfficers' Certificate stating that such transaction complies with the terms and conditions of this Section 20.03(b) and that all Governmental Action, if any, required prior to the consummation of such transaction in connection with such transaction have been obtained unless the failure to obtain such Governmental Action would not have a Material Adverse Effect on the ability of the Surviving Corporation to perform its obligations under the Operative Documents; and the Surviving Corporation shall represent and warrant to each of the Participants and shall have caused to be delivered to each of the Participants an opinion of counsel, in form and substance reasonably satisfactory to each of the Participants, Certificate Trustee that (x) the Surviving Corporation is a corporation in good standing in the state of its incorporation; (y) all documents executed and Information Agentdelivered by Surviving Corporation pursuant to this Section 20.03(b) have been duly authorized, containing the assumption executed and delivered by the Surviving Company Corporation and constitute the valid, legal and binding obligations of Surviving Corporation; and (z) all of the due and punctual paymentOperative Documents to which Lessee is a party will, performance and observation upon the consummation of each obligation, covenant and agreement of Lessee under this Agreement and each other Operative Document to which, immediately prior to such transaction, Lessee was a party; be the valid, legal and (B) Guarantor shall execute binding obligations of Surviving Corporation, subject in each case to customary exceptions for creditors' rights as well as such other customary exceptions as were contained in the legal opinions delivered concurrently with the execution and deliver to each delivery of the parties hereto a Participation Agreement reaffirmation, in form Lease and substance satisfactory to the Participants other Operative Documents being executed and Information Agent, that each and all delivered as of the obligations of Guarantor under this Agreement and the Guaranty remain, and will remain, in full force and effect, notwithstanding the transaction or transactions giving rise to the requirement that such reaffirmation be delivered hereunder; (iii) no Lease Default, Lease Event of Default or Construction Agency Event of Default shall have occurred or would occur as a result thereof and be continuing, and no Event of Loss shall have occurred or would occur as a result thereofdate hereof; (iv) the title of Certificate Trustee to the Equipment and Systems and Certificate Trustee's rights under this Agreement and the other Operative Documents and the first and prior Lien of the Security Agreement on the Collateral shall not be adversely affected; (v) Lessee shall have delivered to the Participants, Certificate Trustee and Administrative Agent an Officer's Certificate and an opinion of counsel reasonably satisfactory to each such Person stating that such transaction complies with this Section 5.2, that all conditions to the consummation of such transaction have been fulfilled and that all Governmental Approvals required in connection with such transaction have been obtained, given or made; and (vi) the Indirect Beneficial Ownership Interest of Guarantor in each of the Leased Assets and Owned Assets included in each Qualified MAN or FCL shall be equal to or greater than forty-nine percent (49%) after such merger, consolidation or transfer; provided, however, that, subsequent to an initial public offering by Lessee that reduces the Indirect Beneficial Ownership Interest of Guarantor to below forty-nine percent (49%), no such consolidation, merger, conveyance, transfer or lease shall reduce the Indirect Beneficial Ownership Interest of Guarantor, calculated On a Fully Diluted Basis, below the Indirect Beneficial Ownership Interest of Guarantor, calculated On a Fully Diluted Basis, maintained immediately after such initial public offering. Upon the consummation of such transaction, the Surviving CompanyCorporation, if other than Lessee, shall succeed to, and be substituted for, and may exercise every right and power of, Lessee immediately prior to such transaction under this Agreement and each other Operative Document to which Lessee was a party immediately prior to such transaction, Participation Agreement with the same effect as if the Surviving Company Corporation had been named herein and therein. Notwithstanding the foregoing provisions of this Section 5.2(a), no conveyance, transfer or lease of all or any portion of the assets of Lessee shall, except as provided in Section 10.2 of the Lease, release either of Lessee or Guarantor from its respective payment or other obligations under this Agreement, the Guaranty or any other Operative Document without the prior written consent of Certificate Trustee, Information Agent and each Participant. (bv) Lessee shall not transfer, assign or sublease any Leased Assets except in accordance with Section 5.2(a) and Article X of the Lease. Lessee may not assign, transfer possession of or lease, in whole or in part, any of its right, title or interest in or After giving full effect to the Owned Assets relating transaction, the Surviving Corporation shall have a Lessee's Adjusted Net Worth at least equal to the Lessee's Adjusted Net Worth prior to the consummation of such transaction and a Qualified MAN senior long-term unsecured debt rating by the Rating Agencies at least equal to the following: (A) if Lessee's senior long-term unsecured debt rating prior to such transaction is higher than or FCL equal to any Person at any timeA- by Standard & Poor's, and any such assignmentor the equivalent by Moody's, transfer of possession or lease shall be void, unless: (i) after giving effect to any such assignment, transfer of possession or lease (including all prior transactions of any of then the foregoing types) the Indirect Beneficial Ownership Interest of Guarantor in all of the Leased Assets and in all of the Owned Assets, respectively, included in such Qualified MAN or FCL would Surviving Cxxxxxxxion's post-merger senior long-term unsecured debt rating must be equal to or greater higher than fortyBBB+ by Standard & Poor's or the equivalent by Moody's; (B) if Lxxxxx'x senior long-nine percent (49%); term unsecured debt rating prior to the merger is equal to or less than BBB+ by Standard & Poor's or the equivalent by Moody's, then the Surviving Corxxxxxxxn's post-merger senior long-term unsecured debt rating must be no less than the next lower level then the pre-merger rating, but in no event lower than BBB- by Standard & Poor's or the equivalent by Moody's, provided, howeverhowxxxx, thatif the Lessee's senior long-term unsecured debt rating prior to the merger is below Investment Grade, subsequent to an initial public offering by Lessee that reduces then the Indirect Beneficial Ownership Interest of Guarantor to below fortySurviving Corporation's post-nine percent (49%), no such assignment, transfer or lease shall reduce the Indirect Beneficial Ownership Interest of Guarantor, calculated On a Fully Diluted Basis, below the Indirect Beneficial Ownership Interest of Guarantor, calculated On a Fully Diluted Basis, maintained immediately after such initial public offering, or (ii) such assignment, transfer of possession or lease is to a Subsidiary of Guarantor, in which event such Subsidiary merger long-term unsecured debt rating shall be bound by and subject no lower than the Lessee's senior long-term unsecured debt rating prior to the provisions set forth in this Section 5.2(b), or (iii) such assignment, transfer of possession or lease is consented to by each Participant, which consent shall not be unreasonably withheld or delayed, or (iv) such assignment, transfer of possession or lease complies with Section 5.2(a).merger; and (cC) Each Interested Subsidiary will be bound by, and entitled if Lessee is unrated prior to the benefits ofmerger, Sections 5.2(a) and (b) as if it were named in each such Section in lieu then the Surviving Corporation shall have an Adjusted Net Worth equal to the pre-merger Adjusted Net Worth of Lessee. Any Subsidiary, upon becoming an Interested Subsidiary, shall, as a condition precedent to the transfer or lease of Owned Assets or Leased Assets to it, deliver to Certificate Trustee a duly authorized and executed certificate declaring that it agrees to be bound by, and is entitled to the benefits of, this Article V..