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

Consolidation, Merger, Sale of Assets. Following the Rating Event Date: (a) So long as any of the Securities are outstanding, the Company shall not consolidate with or merge with or into any other Person, or convey, transfer or lease its consolidated properties and assets substantially as an entirety to any Person, or permit any Person to merge into or consolidate with the Company, unless: (i) the Company is the surviving or continuing corporation or the surviving or con tinuing corporation or purchaser or lessee is a corporation incorporated under the laws of the United States of America, one of the States thereof or the District of Columbia or Canada and assumes the Company's obligations under the Securities and under the Indenture and (ii) immediately before and after such transaction, no Event of Default shall have occurred and be continuing. (b) Except for a sale of the consolidated properties and assets of the Company substantially as an entirety pursuant to subsection (a) above, and other than properties or assets required to be sold to conform with laws or governmental regulations, the Company shall not, directly or indirectly, sell or otherwise dispose of any of its consolidated properties or assets (other than short-term, readily marketable investments purchased for cash management purposes with funds not representing the proceeds of other asset sales) if on a pro forma basis, the aggregate net book value of all such sales during the most recent 12-month period would exceed 10% of Consolidated Net Tangible Assets computed as of the end of the most recent quarter preceding such sale; provided, however, that any such sales shall be disregarded for purposes of this 10% limitation if the net proceeds are invested in properties or assets in similar or related lines of business of the Company and its Subsidiaries and, provided further, that the Company may sell or otherwise dispose of consolidated properties and assets in excess of such 10% limitation if the net proceeds from such sales or dispositions, which are not reinvested as provided above, are retained by the Company as cash or Cash Equivalents or used to retire Indebtedness of the Company (other than Indebtedness which is subordinated to the Securities) and its Subsidiaries.

Consolidation, Merger, Sale of Assets. Following the Rating Event DateThe Borrower will not, and will not permit any of its Subsidiaries to, directly or indirectly, (i) consolidate with or merge into any other Person or permit any other Person to consolidate with or merge into it, except that: (a) So long as any Subsidiary of the Securities are outstanding, the Company shall not Borrower may consolidate with or merge into the Borrower or a Wholly-Owned Subsidiary of the Borrower if the Borrower or a Wholly-Owned Subsidiary of the Borrower, as the case may be, shall be the surviving Person; and (b) any entity (other than a Subsidiary of the Borrower) may consolidate with or into any other Person, or convey, transfer or lease its consolidated properties and assets substantially as an entirety to any Person, or permit any Person to merge into the Borrower or consolidate with a Subsidiary if the CompanyBorrower or a Subsidiary of the Borrower, unless: as the case may be, shall be the surviving Person and if, immediately after giving effect to such transaction, (i) the Company Borrower and its Subsidiaries (x) shall not have a Consolidated Net Worth, determined in accordance with GAAP applied on a basis consistent with the consolidated financial statements of the Borrower most recently delivered pursuant to Section 7A.1, of less than the Consolidated Net Worth of the Borrower immediately prior to the effectiveness of such transaction, satisfaction of this requirement to be set forth in reasonable detail in an Officers' Certificate delivered to each holder of a Note at the time of such transaction, and (y) could incur at least $1.00 of additional Indebtedness in compliance with Section 7B.1 and clause (xiv) of Section 7B.2, (ii) substantially all of the assets of the Borrower and its Subsidiaries, taken as a whole, shall be located and substantially all of their business shall be conducted within the continental United States of America or Canada and (iii) no Default, Event of Default or Noncompliance Event shall exist and be continuing; (ii) sell, lease, abandon or otherwise dispose of all or substantially all its assets, except that any Subsidiary of the Borrower may sell, lease or otherwise dispose of all or substantially all its assets to the Borrower or to a Wholly-Owned Subsidiary of the Borrower; or (iii) sell, lease, convey, abandon or otherwise dispose of (including, without limitation, in connection with a Sale and Lease-Back Transaction) any of its assets (except in a transaction permitted by clause (i)(a), (i)(b), (i)(c), (ii)(a) or (ii)(b) of this Section 7B.7 or sales of inventory in the ordinary course of business consistent with past practice) or issue or sell Capital Stock of any Subsidiary of the Borrower, whether in a single transaction or a series of related transactions (each of the foregoing non-excepted transactions, an "Asset Sale"), unless: (a) immediately after giving effect to such proposed disposition no Default, Event of Default or Noncompliance Event shall exist and be continuing, satisfaction of this requirement to be set forth in reasonable detail in an Officer's Certificate delivered to each holder of a Note at the time of such transaction in the case of any Asset Sale involving assets that generates EBITDA and such Asset Sale involves consideration of $250,000 or more; (b) such sale or other disposition is for cash consideration or for consideration consisting of not less than 75% cash and not more than 25% interest-bearing promissory notes; provided, that the surviving 75% limitation referred to in this clause (b) shall not apply to any Asset Sale consisting solely of a sale or continuing corporation other disposition of land and buildings for an interest bearing promissory note as long as the amount of such promissory note does not exceed $250,000; (c) one of the following two conditions must be satisfied: (i) (x) the aggregate Net Proceeds of all assets so disposed of (whether or not leased back) over the surviving immediately preceding 12-month period does not exceed $3,000,000 and (y) the aggregate Net Proceeds of all assets so disposed of (whether or con tinuing corporation not leased back) from the Closing Date through the date of such disposition does not exceed $10,000,000; or (ii) in the event that such Net Proceeds (less the amount thereof previously applied in accordance with clause (x) of this clause (c)(ii)) exceeds the limitations determined pursuant to clauses (x) and (y) of clause (c)(i) of this Section 7B.7 (such excess amount being herein called "Excess Sale Proceeds"), the Borrower shall within 12 calendar months of the date on which such Net Proceeds exceeded any such limitation, cause an amount equal to such Excess Sale Proceeds to be applied (x) to the acquisition of assets in replacement of the assets so disposed of or purchaser or lessee is a corporation incorporated under the laws of assets which may be productively used in the United States of America, one America or Canada in the conduct of the States thereof Business, or (y) to the District of Columbia or Canada and assumes the Company's obligations under the Securities and under the Indenture and (ii) immediately before and after such transaction, no Event of Default shall have occurred and be continuing. (b) Except for a sale of the consolidated properties and assets of the Company substantially as an entirety extent not applied pursuant to subsection the immediately preceding clause (a) abovex), and other than properties or assets required to be sold offer to conform with laws or governmental regulations, make prepayments on the Company shall not, directly or indirectly, sell or otherwise dispose of any of its consolidated properties or assets (other than short-term, readily marketable investments purchased for cash management purposes with funds not representing the proceeds of other asset sales) if on a pro forma basis, the aggregate net book value of all such sales during the most recent 12-month period would exceed 10% of Consolidated Net Tangible Assets computed as of the end of the most recent quarter preceding such sale; provided, however, that any such sales shall be disregarded for purposes of this 10% limitation if the net proceeds are invested in properties or assets in similar or related lines of business of the Company and its Subsidiaries Notes pursuant to Section 4.2.3 hereto and, provided furtherallocated on the basis specified for such prepayments in the definition of Allocable Proceeds, that the Company may sell or otherwise dispose of consolidated properties and assets in excess of such 10% limitation if the net proceeds from such sales or dispositions, which are not reinvested as provided above, are retained by the Company as cash or Cash Equivalents or used to retire Indebtedness of the Company offer to repay other Parity Debt (other than Indebtedness which is subordinated under Section 7B.2 (ii) or that by its terms does not permit such offer to be made); and (d) the Borrower shall have delivered to the SecuritiesNoteholders a Certificate of the Board of Directors of the General Partner, certifying that such sale or other disposition is for fair value and is in the best interests of the Borrower. Notwithstanding the foregoing, Asset Sales shall not be deemed to include (1) and any transfer of assets or issuance or sale of Capital Stock by the Borrower or any of its Subsidiaries.Subsidiaries to the Borrower or a Wholly-Owned Subsidiary of the Borrower, (2) any transfer of assets or issuance or sale of Capital Stock by the Borrower or any of its Subsidiaries to any Person in exchange for, or the Net Proceeds of which are applied

Consolidation, Merger, Sale of Assets. Following the Rating Event Date: (a) So long as any of the Securities are outstanding, the Company Issuer shall not consolidate with or merge with or into any other Person, or convey, transfer or lease its consolidated properties and assets substantially as an entirety to any Person, or permit any Person to merge into or consolidate with the Company, unless: (i) the Company is Person (if other than the Issuer) formed by or surviving such consolidation or continuing corporation or the surviving or con tinuing corporation or purchaser or lessee is merger shall be a corporation incorporated Person organized and existing under the laws of the United States of AmericaAmerica or any State and shall expressly assume, one by an indenture supplemental hereto, executed and delivered to the Trustee and the Agent, in form and substance satisfactory to the Trustee, the Agent and the Security Insurer (so long as no Insurer Default shall have occurred and be continuing), the due and punctual payment of the States thereof principal of and interest on all Notes and the performance or the District observance of Columbia or Canada every agreement and assumes the Company's obligations under the Securities and under the covenant of this Indenture and each other Related Document on the part of the Issuer to be performed or observed, all as provided herein; (ii) immediately before and after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; (iii) the Rating Agency Condition shall have been satisfied with respect to such transaction; (iv) any action as is necessary to maintain the lien and security interest created in favor of the Collateral Agent by the Security Agreement shall have been taken; (v) the Issuer shall have delivered to the Trustee and the Agent an Officers' Certificate and an Opinion of Counsel (which shall describe the actions taken as required by clause (a)(iv) of this Section 1003 or that no such actions will be taken) each stating that such consolidation or merger and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with (including any filing required by the Exchange Act); and (vi) so long as no Insurer Default shall have occurred and be continuing, the Issuer shall have given the Security Insurer written notice of such consolidation or merger at least 20 Business Days prior to the consummation of such action and shall have received the prior written approval of the Security Insurer of such consolidation or merger and the Issuer or the Person (if other than the Issuer) formed by or surviving such consolidation or merger has a net worth, immediately after such consolidation or merger, that is (a) greater than zero and (b) not less than the net worth of the Issuer immediately prior to giving effect to such consolidation or merger. (b) Except for a sale The Issuer shall not convey or transfer all or substantially all of its properties or assets, including those included in the consolidated Trust Estate, to any Person (except as expressly permitted by the Indenture, the Security Agreement, the Repurchase Agreement or the Servicing Agreement), unless (i) the Person that acquires by conveyance or transfer the properties and assets of the Company substantially Issuer shall (A) be a United States citizen or a Person organized and existing under the laws of the United States of America or any State, (B) expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee and the Agent in form and substance satisfactory to the Trustee, the Agent and the Security Insurer (so long as no Insurer Default shall have occurred and be continuing), the due and punctual payment of the principal of and interest on all Notes and the performance or observance of every agreement and covenant of this Indenture and each Related Document on the part of the Issuer to be performed or observed, all as provided herein, (C) expressly agree by means of such supplemental indenture that all right, title and interest so conveyed or transferred shall be subject and subordinate to the rights of Holders of the Notes, (D) unless otherwise provided in such Supplemental Indenture, expressly agree to indemnify, defend and hold harmless the Issuer against and from any loss, liability or expense arising under or related to this Indenture and the Notes and (E) expressly agree by means of such supplemental indenture that such Person (or if a group of Persons, then one specified Person) shall make all filings with the Commission (and any other appropriate Person) required by the Exchange Act in connection with the Notes; (ii) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; (iii) the Rating Agency Condition shall have been satisfied with respect to such transaction; (iv) the Issuer shall have received an entirety pursuant Opinion of Counsel which shall be delivered to subsection and shall be satisfactory to the Trustee, the Agent and the Security Insurer (so long as no Insurer Default shall have occurred and be continuing) to the effect that such transaction will not have any material adverse tax consequence to the Issuer, the Security Insurer or any Noteholder; (v) any action as is necessary to maintain the lien and security interest created in favor of the Collateral Agent by the Security Agreement shall have been taken; (vi) the Issuer shall have delivered to the Trustee and the Agent an Officers' Certificate and an Opinion of Counsel (which shall describe the actions taken as required by clause (b)(v) of this Section 1003 or that no such actions will be taken) each stating that such conveyance or transfer and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with (including any filing required by the Exchange Act); and (vii) so long as no Insurer Default shall have occurred and be continuing, the Issuer shall have given the Security Insurer written notice of such conveyance or transfer of properties or assets at least 20 Business Days prior to the consummation of such action and shall have received the prior written approval of the Security Insurer of such conveyance or transfer and the Person acquiring by conveyance or transfer the properties or assets of the Issuer has a net worth, immediately after such conveyance or transfer, that is (a) above, greater than zero and other (b) not less than properties or assets required to be sold to conform with laws or governmental regulations, the Company shall not, directly or indirectly, sell or otherwise dispose of any of its consolidated properties or assets (other than short-term, readily marketable investments purchased for cash management purposes with funds not representing the proceeds of other asset sales) if on a pro forma basis, the aggregate net book value of all such sales during the most recent 12-month period would exceed 10% of Consolidated Net Tangible Assets computed as worth of the end of the most recent quarter preceding Issuer immediately prior to giving effect to such sale; provided, however, that any such sales shall be disregarded for purposes of this 10% limitation if the net proceeds are invested in properties conveyance or assets in similar or related lines of business of the Company and its Subsidiaries and, provided further, that the Company may sell or otherwise dispose of consolidated properties and assets in excess of such 10% limitation if the net proceeds from such sales or dispositions, which are not reinvested as provided above, are retained by the Company as cash or Cash Equivalents or used to retire Indebtedness of the Company (other than Indebtedness which is subordinated to the Securities) and its Subsidiariestransfer.

Consolidation, Merger, Sale of Assets. Following the Rating Event Date: (a) So long as any Section 8.1. Company May Merge, Consolidate, etc., Only on --------------------------------------------- Certain Terms. -------------- The Company will not, in a single transaction or through a series of the Securities are outstandingrelated transactions, the Company shall not consolidate with or merge with or into any other PersonPerson or sell, or assign, convey, transfer transfer, lease or lease otherwise dispose of all or substantially all of its consolidated properties and assets substantially as an entirety to any PersonPerson or group of affiliated Persons, or permit any of its Subsidiaries to enter into any such transaction or series of related transactions if such transaction or series of related transactions, in the aggregate, would result in a sale, assignment, conveyance, transfer, lease or disposition of all or substantially all of the properties and assets of the Company and its Subsidiaries on a Consolidated basis to any other Person to merge into or consolidate with group of affiliated Persons, unless at the Company, unless: time and after giving effect thereto: (i) either (a) the Company will be the continuing corporation or (b) the Person (if other than the Company) formed by such consolidation or into which the Company is the surviving or continuing corporation merged or the surviving Person which acquires by sale, assignment, conveyance, transfer, lease or con tinuing corporation disposition all or purchaser or lessee is substantially all of the properties and assets of the Company and its Subsidiaries on a Consolidated basis (the "Surviving Entity") will be a corporation incorporated duly organized and validly existing under the laws of the United States of America, one of the States any state thereof or the District of Columbia or Canada and assumes such Person expressly assumes, by a supplemental indenture, in a form satisfactory to the Company's Trustee, all the obligations of the Company under the Securities and under hereunder, as the case may be, and the Securities and this Indenture will remain in full force and effect as so supplemented; (ii) immediately before and immediately after giving effect to such transaction on a pro forma basis (and treating any Indebtedness not previously an obligation of the Company or any of its Subsidiaries which becomes the obligation of the Company or any of its Subsidiaries as a result of such transaction as having been incurred at the time of such transaction), no Default or Event of Default shall will have occurred and be continuing.; (biii) Except for a sale of the consolidated properties immediately before and assets of the Company substantially as an entirety pursuant immediately after giving effect to subsection (a) above, and other than properties or assets required to be sold to conform with laws or governmental regulations, the Company shall not, directly or indirectly, sell or otherwise dispose of any of its consolidated properties or assets (other than short-term, readily marketable investments purchased for cash management purposes with funds not representing the proceeds of other asset sales) if such transaction on a pro forma basisbasis (on the assumption that the transaction occurred on the first day of the four-quarter period for which financial results are available ending immediately prior to the consummation of such transaction with the appropriate adjustments with respect to the transaction being included in such pro forma calculation), the aggregate net book value Company (or the Surviving Entity if the Company is not the continuing obligor hereunder) could incur $1.00 of all such sales during additional Indebtedness (other than Permitted Indebtedness or Permitted Subsidiary Indebtedness) under Section 10.8; and (iv) at the most recent 12-month period would exceed 10% of Consolidated Net Tangible Assets computed as time of the end transaction the Company 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 most recent quarter preceding 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 herein provided for relating to such transaction have been complied with; provided, however, that the foregoing prohibition shall not prohibit any such sales shall be disregarded for purposes of this 10% limitation if merger between or among Subsidiaries or between a Subsidiary and the net proceeds are invested in properties or assets in similar or related lines of business of Company, provided the Company and its Subsidiaries and, provided further, that is the Company may sell or otherwise dispose of consolidated properties and assets in excess of such 10% limitation if the net proceeds from such sales or dispositions, which are not reinvested as provided above, are retained by the Company as cash or Cash Equivalents or used to retire Indebtedness of the Company (other than Indebtedness which is subordinated to the Securities) and its Subsidiariescontinuing corporation.

Consolidation, Merger, Sale of Assets. Following the Rating Event Date: (a) So long as Nothing contained in this Indenture or in any of the Securities are outstandingshall prevent any amalgamation, reconstruction, consolidation or merger of the Guarantor with or into any other Person (whether or not affiliated with the Guarantor), or successive amalgamations, reconstructions, consolidations or mergers in which the Guarantor or its successor or successors shall be a party or parties, or shall prevent any sale or conveyance of the property of the Guarantor as an entirety or substantially as an entirety, to any other Person (whether or not affiliated with the Guarantor) authorized to acquire and operate the same; provided, however, that the Person formed by such amalgamation, restructuring or consolidation, or into which the Guarantor shall merge, or which shall acquire such property is organized and validly existing under the laws of a State of the United States, the Company United Kingdom or another jurisdiction that is a member country of the Organization for Economic Cooperation and Development (or any successor thereto) and provided further that the Guarantor hereby covenants and agrees that, upon any such amalgamation, reconstruction, consolidation, merger, sale or conveyance, (i) the due and punctual performance and observance of all of the covenants and conditions of this Indenture to be performed by the Guarantor (including, if applicable, submission to jurisdiction), shall be expressly assumed by supplemental indenture satisfactory in form to the Trustee, executed and delivered to the Trustee, by the Person formed by such amalgamation, reconstruction or consolidation, or into which the Guarantor shall have been merged, or by the Person which shall have acquired such property, and (ii) if the Person formed by such amalgamation, reconstruction or consolidation, or into which the Guarantor shall have been merged, or which shall have acquired such property, is resident for tax purposes other than in the United Kingdom (and, if such Person is, or is treated as, a “domestic corporation” for U.S. federal income tax purposes, such successor Person shall be treated as a “resident” of the United States for U.S. federal income tax purposes), such Person shall, in such supplemental indenture, agree that if any deduction or withholding for any present or future taxes,levies, imposts or other governmental charges whatsoever imposed, assessed, levied or collected by or for the account of the jurisdiction in which it is resident for tax purposes or any political subdivision or taxing authority thereof or therein shall at any time be required by such jurisdiction (or any such political subdivision or taxing authority) in respect of any amounts to be paid by such successor Person under the Securities, such Person will (subject to compliance by the Holders of such Securities with any administrative requirements) pay such additional amounts as may be necessary in order that the net amounts paid to the Holders of the Securities or the Trustee under this Indenture or, as the case may be, pursuant to the Securities, after such deduction or withholding, shall be not less than the amounts specified in the Securities, to which such Holders or the Trustee are entitled had no such withholding or deduction been required; provided, however, that the successor Person shall not consolidate be required to make any payment of additional amounts for or on account of (i) any present or future tax, levy, impost or other governmental charge which would not have been so imposed, assessed, levied or collected but for the fact that the Holder of the relevant Security (or a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Holder, if such Holder is an estate, trust, partnership or corporation) is or has been a domiciliary, national or resident of, or is or has been engaged in a trade or business in, or maintains or has maintained a permanent establishment in, or is or has been physically present in, such jurisdiction or any political subdivision or taxing authority thereof or therein or otherwise has or has had some connection with such jurisdiction or merge any political subdivision or taxing authority thereof or therein other than the holding or ownership of the Security, or the collection of principal, premium or interest, if any, on, or the enforcement of, the Security, (ii) any present or future tax, levy, impost or other governmental charge which would not have been so imposed, assessed, levied or collected but for the fact that, where presentation is required, the relevant Security was presented more than thirty days after the date on which such payment became due or was provided for, whichever is later, (iii) any estate, inheritance, gift, sale, transfer, personal property or similar tax, levy, impost or other governmental charge, (iv) any present or future tax, levy, impost or other governmental charge which is payable otherwise than by deduction or withholding from payments on or in respect of the relevant Security, (v) any present or future tax, levy, impost or other governmental charge which would not have been so imposed, assessed, levied or collected but for the failure of the Holder or the beneficial owner of the relevant Security to comply with any certification, identification or other reporting requirements concerning the Holder’s or the beneficial owner’s nationality, residence, identity or connection with such jurisdiction or any political subdivision or taxing authority thereof or therein, if compliance is required by treaty or by statute, regulation or administrative practice of such jurisdiction or of any such political subdivision or taxing authority thereof or therein as a condition to relief or exemption from such tax, levy, impost or other governmental charge, (vi) any present or future tax, levy, impost or other governmental charge which the Holder would have been able to avoid by authorizing the paying agent to report information in accordance with the procedure laid down by the relevant tax authority or by producing, in the form requested by the relevant tax authority, a declaration, claim, certificate, document or other evidence establishing exemption therefrom, (vii) any present or future tax, levy, impost or other governmental charge which is required by FATCA, any current or future U.S. Treasury regulations or rulings promulgated thereunder, any IGA, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA or an IGA, or any agreement with the U.S. Internal Revenue Service under or with respect to FATCA, (viii) any present or future tax, levy, impost or other governmental charge which is imposed or withheld because the Holder of the Security is (1) considered a 10% shareholder (within the meaning of Sections 871(h)(3) or 881(c)(3) of the Code) of the issuer of the Security or (2) a controlled foreign corporation related (within the meaning of Section 864(d)(4) of the Code) to the issuer of the Security, (ix) any present or future tax, levy, impost or other governmental charge which is imposed because the Holder (1) is a bank purchasing the Security in the ordinary course of its lending business or (2) is a bank that is neither (A) buying the Security for investment purposes only nor (B) buying the Security for resale to a third party that either is not a bank or will hold the Security for investment purposes only, (x) any present or future tax, levy, impost or other governmental charge which is imposed, assessed, levied or collected in respect of a payment under or with respect to a Security to any Holder of the relevant Security that is a fiduciary, partnership or a person other than the sole beneficial owner of such payment or Security to the extent that the beneficiary or settlor with respect to the fiduciary, member of that partnership or beneficial owner would not have been entitled to the additional amounts or would not have been subject to such tax, levy, impost or charge had that beneficiary, settlor, member or beneficial owner been the actual Holder of such Security or (xi) any combination of clauses (i) through (x) above, and nor shall additional amounts be paid in the event that the obligation to pay additional amounts is the result of the issuance of definitive Registered Securities to a Holder of a Predecessor Security at such Holder’s request upon the occurrence of an Event of Default and at the time payment is made definitive Registered Securities have not been issued in exchange for the entire principal amount of the Predecessor Securities. (b) If, upon any such amalgamation, reconstruction, consolidation or merger of the Guarantor with or into any other Person, or convey, transfer upon any sale or lease its consolidated properties and assets conveyance of the property of the Guarantor as an entirety or substantially as an entirety to any other Person, or permit any Person to merge into or consolidate with the Company, unless: (i) the Company is the surviving or continuing corporation or the surviving or con tinuing corporation or purchaser or lessee is a corporation incorporated under the laws Principal Property of the United States of America, one of the States thereof Guarantor or the District of Columbia or Canada and assumes the Company's obligations under the Securities and under the Indenture and (ii) immediately before and after such transaction, no Event of Default shall have occurred and be continuing. (b) Except for a sale of the consolidated properties and assets of the Company substantially as an entirety pursuant to subsection (a) above, and other than properties or assets required to be sold to conform with laws or governmental regulations, the Company shall not, directly or indirectly, sell or otherwise dispose of any of its consolidated properties Restricted Subsidiaries or assets any shares of stock or indebtedness of any such Restricted Subsidiary would thereupon become subject to any mortgage, pledge or lien which would be prohibited by Section 3.09, the Guarantor, prior to such amalgamation, reconstruction, consolidation, merger, sale or conveyance, will secure the Securities, equally and ratably with any other obligations of the Guarantor then entitled thereto, by a direct lien on all such property equally and ratably with all such mortgages, pledges or liens. (c) In case of any such amalgamation, reconstruction, consolidation, merger, sale or conveyance (other than short-termby way of a temporary lease in the ordinary course of business) and following such an assumption by the successor Person, readily marketable investments purchased such successor Person shall succeed to and be substituted for cash management purposes the Guarantor, with funds not representing the proceeds of other asset sales) same effect as if on a pro forma basis, it had been named herein and the aggregate net book value Guarantor shall be relieved of all such sales during obligations and covenants under this Indenture and the most recent 12-month period would exceed 10% Guaranty. In case of Consolidated Net Tangible Assets computed as of the end of the most recent quarter preceding such sale; provided, however, that any such sales shall amalgamation, reconstruction, consolidation, merger, sale or conveyance such changes in phraseology and form (but not in substance) may be disregarded for purposes of this 10% limitation if made in the net proceeds are invested in properties or assets in similar or related lines of business of the Company and its Subsidiaries and, provided further, that the Company Securities thereafter to be issued as may sell or otherwise dispose of consolidated properties and assets in excess of such 10% limitation if the net proceeds from such sales or dispositions, which are not reinvested as provided above, are retained by the Company as cash or Cash Equivalents or used to retire Indebtedness of the Company (other than Indebtedness which is subordinated to the Securities) and its Subsidiariesbe appropriate.

Consolidation, Merger, Sale of Assets. Following the Rating Event Date: (a) So long as any of the Securities are outstanding, the Company shall 5.17.1 The Issuer will not consolidate with or merge with or into any other Person, or convey, lease or transfer all or lease substantially all of its consolidated properties and assets substantially as an entirety to any Personto, or permit any Person to merge into in a single transaction or consolidate with the Companythrough a series of transactions, unless: (ia) the Company is the resulting, surviving or continuing corporation or transferee person (the surviving or con tinuing corporation or purchaser or lessee is “Successor Company”) shall be a corporation incorporated company organized and existing under the laws of Mexico, the United States of America, one of the States or any State thereof or the District of Columbia or Canada and assumes Columbia; (b) the Company's Successor Company (if not the Issuer) shall expressly assume all of the obligations of the Issuer under the Securities Notes, the Security Documents and under the Indenture and Note Purchase Agreement; (iic) immediately before after giving effect to such transaction on a pro forma basis the Successor Company would be able to Incur an additional $1.00 of Indebtedness pursuant to Clause 5.8.1; (d) immediately after giving effect to such transaction on a pro forma basis (and after treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been incurred by such Successor Company or such Subsidiary at the time of such transaction), no Event of Default shall have occurred and be continuing; and (e) the Issuer or the surviving entity, as the case may be, shall have delivered to the Holders an Officers’ Certificate and Opinion of Counsel each stating that such consolidation, merger or transfer, and such supplemental indenture (if any) complies with this covenant. (b) Except for a sale 5.17.2 Upon any consolidation or merger or any sale, assignment, conveyance, lease, transfer or other disposition of all or substantially all of the consolidated properties and assets of the Issuer in accordance with the foregoing, the Successor Company substantially as an entirety pursuant to subsection (a) abovewill succeed to, and other than properties or assets required to be sold to conform with laws or governmental regulationssubstituted for, and may exercise every right and power of, the Company shall not, directly or indirectly, sell or otherwise dispose of any of its consolidated properties or assets (other than short-term, readily marketable investments purchased for cash management purposes Issuer under the Notes with funds not representing the proceeds of other asset sales) same effect as if on a pro forma basissuch successor corporation had been named as the Issuer therein and thereafter, the aggregate net book value of all such sales during the most recent 12-month period would exceed 10% of Consolidated Net Tangible Assets computed as of the end of the most recent quarter preceding such sale; provided, however, that any such sales Issuer shall be disregarded for purposes of this 10% limitation if discharged from all obligations and covenants under the net proceeds are invested in properties or assets in similar or related lines of business of the Company and its Subsidiaries and, provided further, that the Company may sell or otherwise dispose of consolidated properties and assets in excess of such 10% limitation if the net proceeds from such sales or dispositions, which are not reinvested as provided above, are retained by the Company as cash or Cash Equivalents or used to retire Indebtedness of the Company (other than Indebtedness which is subordinated to the Securities) and its SubsidiariesNotes.

Consolidation, Merger, Sale of Assets. Following the Rating Event Date: (a) So long as any of the Securities are outstandingDissolve, the Company shall not consolidate with liquidate or merge with wind up their affairs or enter into any other Person, transaction of merger or convey, transfer or lease its consolidated properties and assets substantially as an entirety to any Person, or permit any Person to merge into or consolidate with the Company, unless: (i) the Company is the surviving or continuing corporation or the surviving or con tinuing corporation or purchaser or lessee is a corporation incorporated under the laws of the United States of America, one of the States thereof or the District of Columbia or Canada and assumes the Company's obligations under the Securities and under the Indenture and (ii) immediately before and after such transaction, no Event of Default shall have occurred and be continuing. (b) Except for a sale of the consolidated properties and assets of the Company substantially as an entirety pursuant to subsection (a) above, and other than properties or assets required to be sold to conform with laws or governmental regulations, the Company shall not, directly or indirectly, sell or otherwise dispose of any of its consolidated properties or assets (other than short-term, readily marketable investments purchased for cash management purposes with funds not representing the proceeds of other asset sales) if on a pro forma basis, the aggregate net book value of all such sales during the most recent 12-month period would exceed 10% of Consolidated Net Tangible Assets computed as of the end of the most recent quarter preceding such saleconsolidation; provided, however, that (i) the Borrower may merge or consolidate with any Person so long as (A) the Borrower shall be the continuing or surviving corporation, (B) such merger or consolidation is not conducted in order to circumvent compliance with the Credit Documents, (C) (1) no Default or Event of Default shall exist and (2) no Default or Event of Default shall occur after giving effect to such merger or consolidation and (D) to the extent such merger or consolidation is with a Person other than a Subsidiary of the Borrower, such Person is in the same line of business as the Borrower and its Subsidiaries, (ii) any Foreign Subsidiary of the Borrower may be merged or consolidated with or into any other Foreign Subsidiary of the Borrower; provided that after giving effect to any such sales shall be disregarded for purposes of this 10% limitation if merger or consolidation the net proceeds are invested in properties or assets in similar or related lines of business of the Company Borrower and its Subsidiaries andshall be in compliance with Section 7.11 and (iii) any Foreign Subsidiary of the Borrower (other than a Material Subsidiary) may dissolve, liquidate or wind-up its affairs at any time; provided furtherthat after giving effect to any such dissolution, that liquidation or wind-up the Company may sell Borrower and its Subsidiaries shall be in compliance with Section 7.11. (b) Sell, lease, transfer or otherwise dispose of consolidated properties any Property (including accounts and assets notes receivable, with or without recourse) other than (i) the sale of inventory in excess the ordinary course of business for fair consideration, (ii) the sale or disposition of machinery and equipment no longer used or useful in the conduct of such 10% limitation if the net proceeds from such Person's business, (iii) other sales of assets during any fiscal year having an aggregate fair market value of less than $5,000,000 and (iv) any transfer or dispositions, which are not reinvested as provided above, are retained disposition of Property permitted by the Company as cash Section 8.4(a)(ii) or Cash Equivalents or used to retire Indebtedness of the Company (other than Indebtedness which is subordinated to the Securities) and its SubsidiariesSection 8.4(a)(iii).

Consolidation, Merger, Sale of Assets. Following the Rating Event DateThe Borrower will not, and will not permit any of its Subsidiaries to, directly or indirectly, (i) consolidate with or merge into any other Person or permit any other Person to consolidate with or merge into it, except that: (a) So long as any Subsidiary of the Securities are outstanding, the Company shall not Borrower may consolidate with or merge into the Borrower or a Wholly-Owned Subsidiary of the Borrower if the Borrower or a Wholly-Owned Subsidiary of the Borrower, as the case may be, shall be the surviving Person; and (b) any entity (other than a Subsidiary of the Borrower) may consolidate with or into any other Person, or convey, transfer or lease its consolidated properties and assets substantially as an entirety to any Person, or permit any Person to merge into the Borrower or consolidate with a Subsidiary if the CompanyBorrower or a Subsidiary of the Borrower, unless: as the case may be, shall be the surviving Person and if, immediately after giving effect to such transaction, (i) the Company Borrower and its Subsidiaries (x) shall not have a Consolidated Net Worth, determined in accordance with GAAP applied on a basis consistent with the consolidated financial statements of the Borrower most recently delivered pursuant to Section 7A.1, of less than the Consolidated Net Worth of the Borrower immediately prior to the effectiveness of such transaction, satisfaction of this requirement to be set forth in reasonable detail in an Officers' Certificate delivered to each holder of a Note at the time of such transaction, and (y) could incur at least $1.00 of additional Indebtedness in compliance with Section 7B.1 and clause (xiv) of Section 7B.2, (ii) substantially all of the assets of the Borrower and its Subsidiaries, taken as a whole, shall be located and substantially all of their business shall be conducted within the continental United States of America or Canada and (iii) no Default, Event of Default or Noncompliance Event shall exist and be continuing; (ii) sell, lease, abandon or otherwise dispose of all or substantially all its assets, except that any Subsidiary of the Borrower may sell, lease or otherwise dispose of all or substantially all its assets to the Borrower or to a Wholly-Owned Subsidiary of the Borrower; or (iii) sell, lease, convey, abandon or otherwise dispose of (including, without limitation, in connection with a Sale and Lease-Back Transaction) any of its assets (except in a transaction permitted by clause (i)(a), (i)(b), (i)(c), (ii)(a) or (ii)(b) of this Section 7B.7 or sales of inventory in the ordinary course of business consistent with past practice) or issue or sell Capital Stock of any Subsidiary of the Borrower, whether in a single transaction or a series of related transactions (each of the foregoing non-excepted transactions, an "Asset Sale"), unless: (a) immediately after giving effect to such proposed disposition no Default, Event of Default or Noncompliance Event shall exist and be continuing, satisfaction of this requirement to be set forth in reasonable detail in an Officer's Certificate delivered to each holder of a Note at the time of such transaction in the case of any Asset Sale involving assets that generates EBITDA and such Asset Sale involves consideration of $250,000 or more; (b) such sale or other disposition is for cash consideration or for consideration consisting of not less than 75% cash and not more than 25% interest-bearing promissory notes; provided, that the surviving 75% limitation referred to in this clause (b) shall not apply to any Asset Sale consisting solely of a sale or continuing corporation other disposition of land and buildings for an interest bearing promissory note as long as the amount of such promissory note does not exceed $250,000; (c) one of the following two conditions must be satisfied: (i) (x) the aggregate Net Proceeds of all assets so disposed of (whether or not leased back) over the surviving immediately preceding 12-month period does not exceed $3,000,000 and (y) the aggregate Net Proceeds of all assets so disposed of (whether or con tinuing corporation not leased back) from the Closing Date through the date of such disposition does not exceed $10,000,000; or (ii) in the event that such Net Proceeds (less the amount thereof previously applied in accordance with clause (x) of this clause (c)(ii)) exceeds the limitations determined pursuant to clauses (x) and (y) of clause (c)(i) of this Section 7B.7 (such excess amount being herein called "Excess Sale Proceeds"), the Borrower shall within 12 calendar months of the date on which such Net Proceeds exceeded any such limitation, cause an amount equal to such Excess Sale Proceeds to be applied (x) to the acquisition of assets in replacement of the assets so disposed of or purchaser or lessee is a corporation incorporated under the laws of assets which may be productively used in the United States of America, one America or Canada in the conduct of the States thereof Business, or (y) to the District of Columbia or Canada and assumes the Company's obligations under the Securities and under the Indenture and (ii) immediately before and after such transaction, no Event of Default shall have occurred and be continuing. (b) Except for a sale of the consolidated properties and assets of the Company substantially as an entirety extent not applied pursuant to subsection the immediately preceding clause (a) abovex), and other than properties or assets required to be sold offer to conform with laws or governmental regulations, make prepayments on the Company shall not, directly or indirectly, sell or otherwise dispose of any of its consolidated properties or assets (other than short-term, readily marketable investments purchased for cash management purposes with funds not representing the proceeds of other asset sales) if on a pro forma basis, the aggregate net book value of all such sales during the most recent 12-month period would exceed 10% of Consolidated Net Tangible Assets computed as of the end of the most recent quarter preceding such sale; provided, however, that any such sales shall be disregarded for purposes of this 10% limitation if the net proceeds are invested in properties or assets in similar or related lines of business of the Company and its Subsidiaries Notes pursuant to Section 4.2.3 hereto and, provided furtherallocated on the basis specified for such prepayments in the definition of Allocable Proceeds, that the Company may sell or otherwise dispose of consolidated properties and assets in excess of such 10% limitation if the net proceeds from such sales or dispositions, which are not reinvested as provided above, are retained by the Company as cash or Cash Equivalents or used to retire Indebtedness of the Company offer to repay other Parity Debt (other than Indebtedness which is subordinated under Section 7B.2 (ii) or that by its terms does not permit such offer to be made); and (d) the Borrower shall have delivered to the SecuritiesNoteholders a Certificate of the Board of Directors of the General Partner, certifying that such sale or other disposition is for fair value and is in the best interests of the Borrower. Notwithstanding the foregoing, Asset Sales shall not be deemed to include (1) any transfer of assets or issuance or sale of Capital Stock by the Borrower or any of its Subsidiaries to the Borrower or a Wholly-Owned Subsidiary of the Borrower, (2) any transfer of assets or issuance or sale of Capital Stock by the Borrower or any of its Subsidiaries to any Person in exchange for, or the Net Proceeds of which are applied within 12 months to the purchase of, other assets used in a line of business permitted under Section 7B.8 and its Subsidiarieshaving a fair market value (as determined in good faith by the Board of Directors of the General Partner) not less than that of the assets so transferred or Capital Stock so issued or sold and (3) any transfer of assets pursuant to an Investment permitted by Section 7B.5.