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

Consolidation, Merger, Sale or Purchase of Assets, etc. The Credit Parties will not, nor will they permit any Subsidiary to, directly or indirectly, (a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it, except that any Credit Party may merge with and into or consolidate with any other Credit Party; provided, that, each of the following conditions is satisfied as determined by the Administrative Agent: (i) the Administrative Agent shall have received not less than five (5) days’ prior written notice of the consummation of any merger or consolidation of such Credit Party to so merge or consolidate and such information with respect thereto as the Administrative Agent may reasonably request, (ii) as of the effective date of the merger or consolidation and after giving effect thereto, no Event of Default or Default shall exist or have occurred and be continuing, (iii) the Administrative Agent shall have received true, correct and complete copies of all agreements, documents and instruments relating to such merger, including, but not limited to, the certificate or certificates of merger as filed with each appropriate Secretary of State, (iv) the surviving entity shall expressly confirm, ratify and assume the Credit Party Obligations and the Credit Documents to which it is a party in writing, in form and substance reasonably satisfactory to the Administrative Agent, and execute and deliver such other agreements, documents and instruments as the Administrative Agent may request in connection therewith, (v) the surviving entity of a merger between the Borrower and a Guarantor shall be the Borrower, and (vi) each Credit Party shall ratify and confirm that its guarantee of the Credit Party Obligations shall apply to the Credit Party Obligations as assumed by such surviving entity; or (b) sell, assign, transfer, abandon or otherwise dispose of any Capital Stock, Indebtedness or assets to any other Person, except for: (i) sales of Inventory and rendition of services in the ordinary course of business; (ii) the sale or other disposition of equipment so long as, as of the date of such sale and after giving effect thereto, no Event of Default or Default shall exist or have occurred; (iii) the issuance and sale by the Borrower of its Capital Stock after the date hereof; provided, that, (A) the Borrower shall not be required to pay any cash dividends or repurchase or redeem its Capital Stock or make any other payments in respect thereof, except to the extent such dividends, or repurchases or redemptions are otherwise permitted under Section 6.10 hereof, (B) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of the Borrower to request or receive Loans or Letters of Credit or the right of the Borrower to amend or modify any of the terms and conditions of this Credit Agreement or any of the other Credit Documents or otherwise in any way relate to or affect the arrangements of the Borrower with the Administrative Agent and Lenders or are more restrictive or burdensome to the Borrower than the terms of any Capital Stock of the Borrower in effect on the date hereof and (C) as of the date of such issuance and sale and after giving effect thereto, no Event of Default or Default shall exist or have occurred and be continuing; (iv) in addition to the issuance of Capital Stock permitted in Section 6.4(b)(ii) above, the issuance of Capital Stock of any Credit Party consisting of common stock pursuant to a stock option plan or 401(k) plan of such Credit Party for the benefit of its employees, directors and consultants; provided, that, in no event shall such Credit Party be required to issue, or shall such Credit Party issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default; (v) the termination of any Hedging Agreement; (vi) the Credit Parties and their Subsidiaries may encumber (to the extent permitted by Section 6.2), sell, enter into sale-leaseback agreements (to the extent permitted by Section 6.12) or otherwise dispose of Properties, in each case for fair market value, which are not Collateral (a) with a fee simple fair market value of $125,000,000 in the aggregate or less and (b) subject to Section 5.12, with a fee simple fair market value of greater than $125,000,000 in the aggregate; and (vii) the Borrower may sell the Collateral for fair market value so long as the Borrower complies with the provisions of Sections 2.4(b)(i) and 5.12. (c) wind up, liquidate or dissolve except that any Subsidiary of the Borrower or a Guarantor may wind up, liquidate and dissolve; provided, that, each of the following conditions is satisfied: (i) the winding up, liquidation and dissolution of such Subsidiary shall not violate any Requirement of Law in any material respect and shall not conflict with or result in the breach of, or constitute a default under, any material indenture, mortgage, deed of trust, or other agreement or instrument to which the Borrower, such Guarantor or such Subsidiary is a party or may be bound, (ii) such winding up, liquidation or dissolution shall be done in accordance with all Requirements of Law, (iii) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Subsidiary shall be duly and validly transferred and assigned to the Borrower, a Guarantor or in the case of a Subsidiary which is not a Borrower or Guarantor, to the Borrower, a Guarantor or another Subsidiary (which is not a Borrower or Guarantor) free and clear of any Liens, restrictions or encumbrances other than the security interests and Liens of the Administrative Agent or other Permitted Liens or restrictions or encumbrances expressly permitted hereunder (and the Administrative Agent shall have received such evidence thereof as the Administrative Agent may require), (iv) the Administrative Agent shall have received copies of all documents and agreements of such Subsidiary to be filed with any Governmental Authority or otherwise required to effectuate such winding up, liquidation or dissolution, (v) no Credit Party shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the Person which is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder or such obligations or liabilities are not prohibited under this Credit Agreement or any of the other Credit Documents, (vi) the Administrative Agent shall have received not less than ten (10) Business Days’ prior written notice of the intention of such Subsidiary to wind up, liquidate or dissolve, (vii) the Administrative Agent shall have received copies of such deeds, assignments or other agreements as the Administrative Agent may reasonably request to evidence and confirm the transfer of such assets from the Subsidiary which is liquidating to the transferee, and (viii) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; or (d) lease or sublease Mortgaged Properties that (i) represent more than 15% of the total number of Mortgaged Properties (other than those set forth on Schedule 3.31(b)) at any time and (ii) together with the Mortgaged Properties that are vacant or otherwise non-operational or that are being altered, renovated or refurbished at any one time (excluding minor alterations and upkeep) in accordance with the terms of Section 5.12(a), represent more than 25% of the total number of Mortgaged Properties at any time; provided that the Credit Parties shall promptly (but in any event within five (5) Business Days after the execution and delivery of such lease or sublease) notify the Administrative Agent of any lease or sublease of a Mortgaged Property and any such lease or sublease (A) shall be on market terms and at market rents, (B) shall in no way diminish the fair market value or useful life of such Mortgaged Property, (C) shall not release any Credit Party from its obligations under the Mortgaged Instrument with respect to such Mortgaged Property, (D) shall be expressly subject and subordinate to the Mortgaged Instrument with respect to such Mortgaged Property and (E) shall be subject to a subordination, non-disturbance and attornment agreement to the extent requested by the Borrower or the Administrative Agent and consented to by the Administrative Agent (such consent not to be unreasonably withheld), which agreement shall be in form and substance reasonably satisfactory to the Borrower and the Administrative Agent; or (e) agree to do any of the foregoing (unless such agreement has been consented to in writing by the Administrative Agent or includes as a condition to the effectiveness of such agreement that the Administrative Agent’s consent thereto be obtained).

Consolidation, Merger, Sale or Purchase of Assets, etc. The Credit Parties will not, nor will they permit any Subsidiary to, directly or indirectly, (a) merge into dissolve, liquidate or with wind up its affairs, or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it, except that any Credit Party may merge with and into or consolidate with any other Credit Party; provided, that, each of the following conditions is satisfied as determined by the Administrative Agent: (i) the Administrative Agent shall have received not less than five (5) days’ prior written notice of the consummation of any merger or consolidation of such Credit Party to so merge or consolidate and such information with respect thereto as the Administrative Agent may reasonably request, (ii) as of the effective date of the merger or consolidation and after giving effect thereto, no Event of Default or Default shall exist or have occurred and be continuing, (iii) the Administrative Agent shall have received true, correct and complete copies of all agreements, documents and instruments relating to such merger, including, but not limited to, the certificate or certificates of merger as filed with each appropriate Secretary of State, (iv) the surviving entity shall expressly confirm, ratify and assume the Credit Party Obligations and the Credit Documents to which it is a party in writing, in form and substance reasonably satisfactory to the Administrative Agent, and execute and deliver such other agreements, documents and instruments as the Administrative Agent may request in connection therewith, (v) the surviving entity of a merger between the Borrower and a Guarantor shall be the Borrower, and (vi) each Credit Party shall ratify and confirm that its guarantee of the Credit Party Obligations shall apply to the Credit Party Obligations as assumed by such surviving entity; or (b) sell, assign, transfer, abandon lease or otherwise dispose of any Capital Stock, Indebtedness its property or assets or agree to any other Persondo so at a future time, except forthe following, without duplication, shall be expressly permitted: (iA) sales the sale, transfer, lease or other disposition of Inventory inventory and rendition of services materials in the ordinary course of businessbusiness and (B) the conversion of cash into Cash Equivalents and Cash Equivalents into cash; (ii) Extraordinary Receipts for which such Credit Party or such Subsidiary has received any cash insurance proceeds or condemnation or expropriation award with respect to such property or assets to the sale extent Net Cash Proceeds from such Extraordinary Receipt are used to make mandatory prepayments or other disposition of equipment so long as, as of the date of such sale and after giving effect thereto, no Event of Default or Default shall exist or have occurredotherwise used pursuant to Section 2.7(b)(vii); (iii) the issuance sale, lease, transfer or other disposition of machinery, parts and sale by equipment no longer used or useful in the Borrower conduct of its Capital Stock after the date hereof; provided, that, business of the Credit Parties or any of their Subsidiaries; (iv) (A) the Borrower shall not be required sale, lease or transfer of property or assets from one Credit Party to pay any cash dividends or repurchase or redeem its Capital Stock or make any other payments in respect thereof, except to the extent such dividends, or repurchases or redemptions are otherwise permitted under Section 6.10 hereofanother Credit Party, (B) the terms sale, lease or transfer of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of the Borrower property or assets from a Subsidiary to request or receive Loans or Letters of a Credit or the right of the Borrower to amend or modify any of the terms and conditions of this Credit Agreement or any of the other Credit Documents or otherwise in any way relate to or affect the arrangements of the Borrower with the Administrative Agent and Lenders or are more restrictive or burdensome to the Borrower than the terms of any Capital Stock of the Borrower in effect on the date hereof Party and (C) as the sale, lease or transfer of the date of such issuance and sale and after giving effect thereto, no Event of Default property or Default shall exist or have occurred and be continuing; (iv) in addition to the issuance of Capital Stock permitted in Section 6.4(b)(ii) above, the issuance of Capital Stock of any assets from a Subsidiary that is not a Credit Party consisting of common stock pursuant to another Subsidiary that is not a stock option plan or 401(k) plan of such Credit Party for the benefit of its employees, directors and consultants; provided, that, in no event shall such Credit Party be required to issue, or shall such Credit Party issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of DefaultParty; (v) the termination of any Hedging Agreement; (vi) the Credit Parties and their Subsidiaries may encumber (to the extent permitted by Section 6.2), sell, enter into sale-leaseback agreements (to the extent permitted by Section 6.12) or otherwise dispose of Properties, in each case for fair market value, which are not Collateral (a) with a fee simple fair market value of $125,000,000 in the aggregate or less and (b) subject to Section 5.12, with a fee simple fair market value of greater than $125,000,000 in the aggregateHawthorne Asset Disposition; and (vii) the Borrower may sell sale, lease or transfer of property or assets not to exceed $10,000,000 in the Collateral for fair market value so long as the Borrower complies with the provisions of Sections 2.4(b)(i) and 5.12. (c) wind up, liquidate or dissolve except that any Subsidiary of the Borrower or a Guarantor may wind up, liquidate and dissolve; provided, that, each of the following conditions is satisfied: (i) the winding up, liquidation and dissolution of such Subsidiary shall not violate any Requirement of Law aggregate in any material fiscal year, excluding transfers made pursuant to Section 6.4(a)(iv); provided that (A) with respect and shall not conflict with or result in the breach of, or constitute a default under, any material indenture, mortgage, deed of trust, or other agreement or instrument to which the Borrower, such Guarantor or such Subsidiary is a party or may be boundclauses (i)(A), (ii) such winding up, liquidation or dissolution shall be done in accordance with all Requirements of Law), (iii), (vi) effective upon such winding upand (vii) above, liquidation or dissolution, all at least 75% of the assets and properties of consideration received therefor by the Credit Parties or any such Subsidiary shall be duly and validly transferred and assigned to the Borrower, a Guarantor or in the case form of cash or Cash Equivalents, (B) after giving effect to any Asset Disposition pursuant to clause (vii) above, the Credit Parties shall be in compliance on a Subsidiary Pro Forma Basis with the financial covenants set forth in Section 5.9 hereof, recalculated for the most recently ended month for which information is not a Borrower or Guarantoravailable, and (C) with respect to the Borrower, a Guarantor or another Subsidiary clauses (which is not a Borrower or Guarantor) free and clear of any Liens, restrictions or encumbrances other than the security interests and Liens of the Administrative Agent or other Permitted Liens or restrictions or encumbrances expressly permitted hereunder (and the Administrative Agent shall have received such evidence thereof as the Administrative Agent may requireiv), (iv) the Administrative Agent shall have received copies of all documents and agreements of such Subsidiary to be filed with any Governmental Authority or otherwise required to effectuate such winding up, liquidation or dissolution, (v) no Credit Party shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the Person which is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder or such obligations or liabilities are not prohibited under this Credit Agreement or any of the other Credit Documents), (vi) the Administrative Agent shall have received not less than ten (10) Business Days’ prior written notice of the intention of such Subsidiary to wind up, liquidate or dissolve, and (vii) the Administrative Agent shall have received copies of such deeds, assignments or other agreements as the Administrative Agent may reasonably request to evidence and confirm the transfer of such assets from the Subsidiary which is liquidating to the transferee, and (viii) as of the date of such winding up, liquidation or dissolution and after giving effect theretoabove, no Default or Event of Default shall exist or have occurred and shall result therefrom; provided, further, that with respect to sales of assets permitted hereunder only, the Administrative Agent shall be continuingentitled, without the consent of any Lender, to release its Liens relating to the particular assets sold; or (db) lease or sublease Mortgaged Properties that (i) represent more than 15% purchase, lease or otherwise acquire (in a single transaction or a series of related transactions) the total number property or assets of Mortgaged Properties (any Person, other than those set forth on Schedule 3.31(b)(A) at any time Permitted Acquisitions and Permitted Investments and (B) except as otherwise limited or prohibited herein, purchases or other acquisitions of inventory, materials, property and equipment in the ordinary course of business, or (ii) together with the Mortgaged Properties that are vacant enter into any transaction of merger or otherwise non-operational or that are being alteredconsolidation, renovated or refurbished at any one time (excluding minor alterations and upkeep) in accordance with the terms of Section 5.12(a), represent more than 25% of the total number of Mortgaged Properties at any time; provided that the Credit Parties shall promptly (but in any event within five (5) Business Days after the execution and delivery of such lease or sublease) notify the Administrative Agent of any lease or sublease of a Mortgaged Property and any such lease or sublease except for (A) shall be on market terms and at market rentsInvestments or acquisitions permitted pursuant to Section 6.5 so long as the Credit Party subject to such merger or consolidation is the surviving entity, (B) shall in no way diminish (y) the fair market value merger or useful life consolidation of a Subsidiary that is not a Credit Party with and into a Credit Party; provided that such Mortgaged PropertyCredit Party will be the surviving entity and (z) the merger or consolidation of a Credit Party with and into another Credit Party; provided that if the Borrower is a party thereto, the Borrower will be the surviving corporation, and (C) shall the merger or consolidation of a Subsidiary that is not release any a Credit Party from its obligations under the Mortgaged Instrument with respect to such Mortgaged Property, (D) shall be expressly subject and subordinate to the Mortgaged Instrument with respect to such Mortgaged Property and (E) shall be subject to into another Subsidiary that is not a subordination, non-disturbance and attornment agreement to the extent requested by the Borrower or the Administrative Agent and consented to by the Administrative Agent (such consent not to be unreasonably withheld), which agreement shall be in form and substance reasonably satisfactory to the Borrower and the Administrative Agent; or (e) agree to do any of the foregoing (unless such agreement has been consented to in writing by the Administrative Agent or includes as a condition to the effectiveness of such agreement that the Administrative Agent’s consent thereto be obtained)Credit Party.

Consolidation, Merger, Sale or Purchase of Assets, etc. The Credit Parties will not, nor will they permit any Subsidiary to, directly or indirectly, (a) merge into dissolve, liquidate or with wind up its affairs, or consolidate with any other sell, transfer, lease, consummate a Division as the Dividing Person or permit any other Person otherwise dispose of its property or assets (each a “Disposition”) or agree to merge into or with or consolidate with itdo so at a future time, except that any Credit Party may merge with and into or consolidate with any other Credit Party; providedthe following, thatwithout duplication, each of the following conditions is satisfied as determined by the Administrative Agent: shall be expressly permitted: (iA) the Administrative Agent shall have received not less than five sale, transfer, lease or other disposition of inventory and materials in the ordinary course of business and (5B) days’ prior written notice the conversion of the consummation of any merger or consolidation of such Credit Party to so merge or consolidate cash into Cash Equivalents and such information with respect thereto as the Administrative Agent may reasonably request, Cash Equivalents into cash; (ii) as the sale, transfer or other disposition of property or assets to an unrelated party not in the effective date ordinary course of business where and to the merger or consolidation and after giving effect thereto, no Event extent that they are the result of Default or Default shall exist or have occurred and be continuing, a Recovery Event; (iii) the Administrative Agent shall have received truesale, correct lease, transfer or other disposition of (A) machinery, parts and complete copies equipment no longer used or useful in the conduct of all agreements, documents and instruments relating to such merger, including, but not limited to, the certificate or certificates of merger as filed with each appropriate Secretary of State, (iv) the surviving entity shall expressly confirm, ratify and assume the Credit Party Obligations and the Credit Documents to which it is a party in writing, in form and substance reasonably satisfactory to the Administrative Agent, and execute and deliver such other agreements, documents and instruments as the Administrative Agent may request in connection therewith, (v) the surviving entity of a merger between the Borrower and a Guarantor shall be the Borrower, and (vi) each Credit Party shall ratify and confirm that its guarantee business of the Credit Party Obligations shall apply to the Credit Party Obligations as assumed by such surviving entity; or Parties or any of their Subsidiaries and (bB) sellobsolete or worn out property, assignwhether now owned or hereafter acquired, transfer, abandon or otherwise dispose of any Capital Stock, Indebtedness or assets to any other Person, except for: (i) sales of Inventory and rendition of services in the ordinary course of business; (iiiv) the sale sale, lease or other disposition transfer of equipment so long as, as of the date of such sale and after giving effect thereto, no Event of Default property or Default shall exist assets from one Credit Party to another Credit Party or have occurred; (iii) the issuance and sale by the Borrower of its Capital Stock after the date hereof; provided, that, (A) the Borrower shall not be required to pay any cash dividends or repurchase or redeem its Capital Stock or make any other payments in respect thereof, except to the extent such dividends, or repurchases or redemptions are otherwise permitted under Section 6.10 hereof, (B) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of the Borrower to request or receive Loans or Letters of Credit or the right of the Borrower to amend or modify any of the terms and conditions of this Credit Agreement or any of the other Credit Documents or otherwise in any way relate to or affect the arrangements of the Borrower with the Administrative Agent and Lenders or are more restrictive or burdensome to the Borrower than the terms of any Capital Stock of the Borrower in effect on the date hereof and (C) as of the date of such issuance and sale and after giving effect thereto, no Event of Default or Default shall exist or have occurred and be continuing; (iv) in addition to the issuance of Capital Stock permitted in Section 6.4(b)(ii) above, the issuance of Capital Stock dissolution of any Credit Party consisting of common stock pursuant to a stock option plan or 401(k) plan of such the extent any and all assets are distributed to another Credit Party for the benefit of its employees, directors and consultants; provided, that, in no event shall such Credit Party be required to issue, or shall such Credit Party issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of DefaultParty; (v) the termination of any Hedging Agreement; (vi) Dispositions of equipment or real property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property within twelve (12) months of such Disposition or (B) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property within 12 months of such Disposition; (vii) the licensing of Intellectual Property in the ordinary course of business consistent with past practice; (viii) Dispositions by the Borrower or any Subsidiary; provided that at any time after the Collateral Event, (i) with respect to asset sales for more than $300,000,000 per disposition or series of related dispositions, at least 75% of the consideration for any such asset sale shall consist of cash or cash equivalents (provided that for purposes of the 75% cash consideration requirement (x) the amount of any Indebtedness or other liabilities of the Borrower or any Subsidiary (as shown on such person’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets, (y) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such asset sale, and (z) any securities received by the Borrower or such Subsidiary from such transferee that are converted by the Borrower or such Subsidiary into cash or cash equivalents (to the extent of the cash or cash equivalents received) within 270 days following the closing of the applicable asset sale, shall each be deemed to be cash or cash equivalents) and (ii) immediately prior to the consummation of such asset sale, no Event of Default shall have occurred and be continuing and no Event of Default shall result therefrom; (ix) the sale, lease or transfer of property or assets as part of a Sale and Leaseback Transaction; (x) the merger of a Credit Parties and their Subsidiaries may encumber (Party or a Subsidiary thereof with another Credit Party or a Subsidiary thereof to the extent permitted by Section 6.2), sell, enter into sale-leaseback agreements 6.4(b)(ii) below; (xi) Dispositions of Equity Interests in Permitted JVs pursuant to the extent terms of the joint venture or equivalent agreements governing such Permitted JVs so long as such joint venture or equivalent agreements are not solely between Persons that are Credit Parties, Subsidiaries or Affiliates of Credit Parties; (xii) terminations of leases by a Credit Party or a Subsidiary in the ordinary course of business that do not interfere in any material respect with the business of the Credit Parties or their Subsidiaries; (xiii) any Subsidiary that is an LLC may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.126.4(a)(viii) or otherwise dispose of Properties, in each case for fair market value, which are not Collateral (ax) with a fee simple fair market value of $125,000,000 in the aggregate or less and (b) subject to Section 5.12, with a fee simple fair market value of greater than $125,000,000 in the aggregateabove; and (viixiv) any sale, transfer, assignment, disposition, abandonment or lapse of Intellectual Property that is no longer commercially practicable, usable or desirable in the conduct of business, in the ordinary course of business; provided that (A) after giving effect to any Disposition pursuant to clauses (viii) and (xi) above, the Credit Parties shall be in compliance on a Pro Forma Basis with the financial covenants set forth in Section 5.9 hereof (provided that for purposes of this Section 6.4(a) the Borrower may sell the Collateral for fair market value so long as the Borrower complies with the provisions of Sections 2.4(b)(i) and 5.12. (c) wind up, liquidate or dissolve except that any Subsidiary of the Borrower or a Guarantor may wind up, liquidate and dissolve; provided, that, each of the following conditions is satisfied: (i) the winding up, liquidation and dissolution of such Subsidiary shall not violate any Requirement of Law in any material respect and shall not conflict with or result in the breach of, or constitute a default under, any material indenture, mortgage, deed of trust, or other agreement or instrument to which the Borrower, such Guarantor or such Subsidiary is a party or may be bound, (ii) such winding up, liquidation or dissolution applicable Consolidated Net Leverage Ratio shall be done in accordance 4.50 to 1.00 for any fiscal quarter), recalculated for the most recently ended month for which information is available, and (B) with all Requirements of Law, respect to clauses (iii) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Subsidiary shall be duly and validly transferred and assigned to the Borrower, a Guarantor or in the case of a Subsidiary which is not a Borrower or Guarantor, to the Borrower, a Guarantor or another Subsidiary (which is not a Borrower or Guarantor) free and clear of any Liens, restrictions or encumbrances other than the security interests and Liens of the Administrative Agent or other Permitted Liens or restrictions or encumbrances expressly permitted hereunder (and the Administrative Agent shall have received such evidence thereof as the Administrative Agent may requirev), (iv) the Administrative Agent shall have received copies of all documents and agreements of such Subsidiary to be filed with any Governmental Authority or otherwise required to effectuate such winding upvi), liquidation or dissolution, (v) no Credit Party shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the Person which is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder or such obligations or liabilities are not prohibited under this Credit Agreement or any of the other Credit Documents, (vi) the Administrative Agent shall have received not less than ten (10) Business Days’ prior written notice of the intention of such Subsidiary to wind up, liquidate or dissolve, (vii) the Administrative Agent shall have received copies of such deeds, assignments or other agreements as the Administrative Agent may reasonably request to evidence and confirm the transfer of such assets from the Subsidiary which is liquidating to the transferee, and (viii) as of the date of such winding up, liquidation or dissolution and after giving effect thereto(xi) above, no Default or Event of Default shall exist or have occurred and be continuingshall result therefrom; or (di) purchase, lease or sublease Mortgaged Properties that otherwise acquire (iin a single transaction or a series of related transactions) represent more than 15% the property or assets of the total number of Mortgaged Properties (any Person, other than those set forth on Schedule 3.31(b)(A) at any time Permitted Investments and (B) except as otherwise limited or prohibited herein, purchases or other acquisitions of inventory, materials, property and equipment in the ordinary course of business, or (ii) together with consummate any transaction of merger, Division as the Mortgaged Properties that are vacant Dividing Person or otherwise non-operational or that are being alteredconsolidation, renovated or refurbished at any one time (excluding minor alterations and upkeep) in accordance with the terms of Section 5.12(a), represent more than 25% of the total number of Mortgaged Properties at any time; provided that the Credit Parties shall promptly (but in any event within five (5) Business Days after the execution and delivery of such lease or sublease) notify the Administrative Agent of any lease or sublease of a Mortgaged Property and any such lease or sublease except for (A) shall be on market terms and at market rentsInvestments or acquisitions (including pursuant to a Division) permitted pursuant to Section 6.5 so long as the Credit Party subject to such merger, Division or consolidation is the surviving entity, (B) shall in no way diminish (y) the fair market value merger or useful life consolidation of a Subsidiary that is not a Credit Party with and into a Credit Party; provided that such Mortgaged PropertyCredit Party will be the surviving entity and (z) the merger or consolidation of a Credit Party with and into another Credit Party; provided that if the Borrower is a party thereto, the Borrower will be the surviving corporation, (C) shall the merger or consolidation of a Subsidiary that is not release a Credit Party with and into another Subsidiary that is not a Credit Party and (D) any Credit Party from its obligations under or any Subsidiary may consummate a Division as the Mortgaged Instrument Dividing Person if, immediately upon the consummation of the Division, (x) the assets of the applicable Dividing Person are held by a Credit Party or one or more Subsidiaries at such time or, (y) with respect to assets not held by a Credit Party or one or more Subsidiaries, such Mortgaged PropertyDivision, in the aggregate, would otherwise be permitted by this Section 6.4 (without reliance on this subclause (D)) shall be expressly subject and subordinate to the Mortgaged Instrument with respect to such Mortgaged Property and (E) shall be subject to a subordination, non-disturbance and attornment agreement to the extent requested by the Borrower or the Administrative Agent and consented to by the Administrative Agent (such consent not to be unreasonably withheld), which agreement shall be in form and substance reasonably satisfactory to the Borrower and the Administrative Agent; or (e) agree to do any of the foregoing (unless such agreement has been consented to in writing by the Administrative Agent or includes as a condition to the effectiveness of such agreement that the Administrative Agent’s consent thereto be obtained)and/or Section 6.5.

Consolidation, Merger, Sale or Purchase of Assets, etc. The Credit Parties will not, nor will they permit any Subsidiary to, directly or indirectly, (a) merge Whether in one transaction or a series of transactions, wind up, liquidate or dissolve its affairs, or enter into any transaction of merger or with consolidation, or consolidate with sell or otherwise dispose of any item of Product, or any capital stock of any Subsidiary or any of its other Person property, stock or permit assets or agree to do or suffer any other Person to merge into or with or consolidate with itof the foregoing, except that any Credit Party may merge with and into or consolidate with any other Credit Party; provided, that, each of the following conditions is satisfied as determined by the Administrative Agentfor: (i) the Administrative Agent shall have received not less merger by any solvent Guarantor (other than five (5the Borrowers) days’ prior written notice into or the transfer of all of its assets to the consummation Borrowers or another Guarantor if after such merger no Default or Event of any merger or consolidation of such Credit Party to so merge or consolidate and such information with respect thereto as the Administrative Agent may reasonably request, Default exists; (ii) as licenses for the distribution, exhibition or other exploitation of the effective date of the merger or consolidation and after giving effect thereto, no Event of Default or Default shall exist or have occurred and be continuing, (iii) the Administrative Agent shall have received true, correct and complete copies of all agreements, documents and instruments relating Product pursuant to such merger, including, but not limited to, the certificate or certificates of merger as filed with each appropriate Secretary of State, (iv) the surviving entity shall expressly confirm, ratify and assume the Credit Party Obligations and the Credit Documents to which it is a party in writing, in form and substance reasonably satisfactory to the Administrative Agent, and execute and deliver such other agreements, documents and instruments as the Administrative Agent may request in connection therewith, (v) the surviving entity of a merger between the Borrower and a Guarantor shall be the Borrower, and (vi) each Credit Party shall ratify and confirm that its guarantee of the Credit Party Obligations shall apply to the Credit Party Obligations as assumed by such surviving entity; or (b) sell, assign, transfer, abandon or otherwise dispose of any Capital Stock, Indebtedness or assets to any other Person, except for: (i) sales of Inventory and rendition of services Distribution Agreements entered into in the ordinary course of business; (ii) the sale or other disposition of equipment so long as, as of the date of such sale and after giving effect thereto, no Event of Default or Default shall exist or have occurred; ; (iii) outright sales of Product within the issuance and sale by the Borrower ordinary course of its Capital Stock after the date hereof; provided, that, business (A) the Borrower shall not be required to pay any cash dividends or repurchase or redeem its Capital Stock or make any other payments in respect thereof, except to the extent such dividends, or repurchases or redemptions are otherwise permitted under Section 6.10 hereof, (B) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of the Borrower to request or receive Loans or Letters of Credit or the right of the Borrower to amend or modify any of the terms and conditions of this Credit Agreement or any of the other Credit Documents or otherwise in any way relate to or affect the arrangements of the Borrower with the Administrative Agent and Lenders or are more restrictive or burdensome to the Borrower than the terms of any Capital Stock of the Borrower in effect on the date hereof and (C) as of the date of such issuance and sale and after giving effect theretoi.e., no Event of Default or Default shall exist or have occurred and be continuing; library sales); (iv) in addition to the issuance outright sales of Capital Stock permitted in Section 6.4(b)(ii) above, the issuance of Capital Stock of any Credit Party consisting of common stock pursuant to a stock option plan or 401(k) plan of such Credit Party for the benefit of its employees, directors and consultants; provided, that, in no event shall such Credit Party be required to issue, or shall such Credit Party issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default; (v) the termination of any Hedging Agreement; (vi) the Credit Parties and their Subsidiaries may encumber (to the extent permitted by Section 6.2), sell, enter into salenon-leaseback agreements (to the extent permitted by Section 6.12) or otherwise dispose of Properties, in each case film assets sold for fair market value, provided that the value of the assets sold represents no more than 5% of the Consolidated Capital Base in any one year and no more than 10% of the Consolidated Capital Base during the term of this Agreement provided that any Net Cash Proceeds received by any Credit Party pursuant to this clause (iv) hereof shall be used to prepay the Loans in accordance with Section 2.12(c); (v) sales or other dispositions of equipment in the ordinary course of business which are not Collateral obsolete or no longer useful in the operation of the businesses of the Borrowers or their Subsidiaries; and (avi) with a fee simple fair market sales of Product to Christal Films Distribution Inc. which have been produced using subsixxxx xxxvided by Telefilm Canada, provided that the value of such Product does not exceed $125,000,000 in the aggregate or less and (b) subject to Section 5.12, with a fee simple fair market value of greater than $125,000,000 2,000,000 in the aggregate; provided, however, that nothing in this Agreement shall prevent LGEC from performing a stock split or a reverse stock split or issuing new common shares; and (viib) Purchase or otherwise acquire any film or television library or all or substantially all of the stock or assets of any Person, other than (i) if any such transaction involves a Credit Party that is a Subsidiary of LGEI but does not involve LGEI, then such Subsidiary must be the surviving entity in any such transaction, and (ii) acquisitions for which the cash consideration does not exceed the lesser of (A) US$15,000,000 and (B) the Borrower may sell the Collateral for fair market value so long as the Borrower complies with the provisions of Sections 2.4(b)(i) and 5.12. (c) wind up, liquidate or dissolve except that any Subsidiary amount of the Borrower or a Guarantor may wind up, liquidate and dissolveBorrowing Base which would be attributable to the acquired assets upon closing of such acquisition; provided, that, each of the following conditions is satisfied: however that (ix) the winding up, liquidation and dissolution of such Subsidiary shall not violate any Requirement of Law in any material respect and shall not conflict with or result in the breach of, or constitute a default under, any material indenture, mortgage, deed of trust, or other agreement or instrument to which the Borrower, such Guarantor or such Subsidiary is a party or may be bound, (ii) such winding up, liquidation or dissolution shall be done in accordance with all Requirements of Law, (iii) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Subsidiary shall be duly and validly transferred and assigned to the Borrower, a Guarantor or in the case of a Subsidiary which is not a Borrower or Guarantor, to the Borrower, a Guarantor or another Subsidiary (which is not a Borrower or Guarantor) free and clear of any Liens, restrictions or encumbrances other than the security interests and Liens of the Administrative Agent or other Permitted Liens or restrictions or encumbrances expressly permitted hereunder (and the Administrative Agent shall have received such evidence thereof as the Administrative Agent may require), (iv) the Administrative Agent shall have received copies of all documents and agreements of such Subsidiary to be filed with any Governmental Authority or otherwise required to effectuate such winding up, liquidation or dissolution, (v) no Credit Party shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the Person which is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder or such obligations or liabilities are not prohibited under this Credit Agreement or any of the other Credit Documents, (vi) the Administrative Agent shall have received not less than ten (10) Business Days’ prior written notice of the intention of such Subsidiary to wind up, liquidate or dissolve, (vii) the Administrative Agent shall have received copies of such deeds, assignments or other agreements as the Administrative Agent may reasonably request to evidence and confirm the transfer of such assets from the Subsidiary which is liquidating to the transferee, and (viii) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall exist or have occurred be continuing upon giving effect on a pro forma basis to any such acquisition and (y) the aggregate cash consideration paid for all acquisitions made in reliance on the exception set forth in clause (iii) above shall not exceed US$30,000,000; provided, however, that the Borrowers may increase the amounts permitted to be continuingused for acquisitions hereunder by up to $25,000,000 at any such time as the Leverage Ratio is less than 1.5 to 1; or (d) lease or sublease Mortgaged Properties provided, that (ix) represent more than 15% no Default or Event of the total number of Mortgaged Properties (other than those set forth Default shall be continuing after giving effect on Schedule 3.31(b)) at a pro forma basis to any time such acquisition and (iiy) together with the Mortgaged Properties that are vacant or otherwise non-operational or that are being altered, renovated or refurbished at any one time (excluding minor alterations and upkeep) in accordance with the terms of Section 5.12(a), represent more than 25% of the total number of Mortgaged Properties at any time; provided that the Credit Parties shall promptly (but in any event within five (5) Business Days after the execution and delivery of additional $25,000,000 available for such lease or sublease) notify the Administrative Agent of any lease or sublease of a Mortgaged Property and any such lease or sublease (A) acquisitions shall be on market terms and at market rents, (B) shall in no way diminish reduced by any amounts used by the fair market value or useful life of such Mortgaged Property, (C) shall not release any Credit Party from its obligations under the Mortgaged Instrument with respect Borrowers to such Mortgaged Property, (D) shall be expressly subject and subordinate to the Mortgaged Instrument with respect to such Mortgaged Property and (E) shall be subject to a subordination, nonbuy-disturbance and attornment agreement back stock to the extent requested by permitted under Section 6.5(vii) hereof or to increase the Borrower or the Administrative Agent and consented to by the Administrative Agent (such consent not to be unreasonably withheld), which agreement shall be in form and substance reasonably satisfactory to the Borrower and the Administrative Agent; or (eInvestments permitted under Section 6.4(xv) agree to do any of the foregoing (unless such agreement has been consented to in writing by the Administrative Agent or includes as a condition to the effectiveness of such agreement that the Administrative Agent’s consent thereto be obtained)hereof.

Consolidation, Merger, Sale or Purchase of Assets, etc. The Credit Parties will not, nor will they permit any Subsidiary to, directly or indirectly, (a) merge Whether in one transaction or a series of transactions, wind up, liquidate or dissolve its affairs, or enter into any transaction of merger or consolidation, or sell or otherwise dispose of any item of Product, or any capital stock of any Subsidiary or any of its other property, stock or assets or agree to do or suffer any of the foregoing, except for: (i) the merger by any solvent Guarantor (other than the Borrowers) into or with the transfer of all of its assets to the Borrowers or consolidate with another Guarantor if after such merger no Default or Event of Default exists; (ii) licenses for the distribution, exhibition or other exploitation of Product pursuant to Distribution Agreements entered into in the ordinary course of business; (iii) outright sales of Product within the ordinary course of business (i.e., no library sales); (iv) outright sales of non-film assets sold for fair market value, provided that the value of the assets sold represents no more than 5% of the Consolidated Capital Base in any one year and no more than 10% of the Consolidated Capital Base during the term of this Agreement and (v) sales or other Person dispositions of equipment in the ordinary course of business which are obsolete or permit no longer useful in the operation of the businesses of the Borrowers or their Subsidiaries; provided that any other Person to merge into or with or consolidate with it, except that Net Cash Proceeds received by any Credit Party may merge pursuant to clause (iv) hereof shall be used to prepay the Loans in accordance with and into Section 2.11(c); provided, however, that nothing in this Agreement shall prevent LGEC from performing a stock split or consolidate with a reverse stock split; and (b) Purchase or otherwise acquire any film or television library or all or substantially all of the stock or assets of any Person, other than (i) if any such transaction involves a Credit PartyParty that is a Subsidiary of LGEI but does not involve LGEI, then such Subsidiary must be the surviving entity in any such transaction, (ii) the Trimark Acquisition; provided, that, each there has been no material adverse change in the business, operations, performance, assets, properties, condition (financial or otherwise) or prospects of Trimark from June 30, 2000 and provided, further, that before any Loans are made hereunder the following conditions is satisfied as determined by proceeds of which shall be used to complete the Administrative Agent: (i) Trimark Acquisition, including, without limitation, to fund the Trimark Escrow Account, the Administrative Agent shall have received not less than five (5) days’ prior written notice of a certificate from the consummation of any merger or consolidation of such Credit Party to so merge or consolidate and such information with respect thereto as the Administrative Agent may reasonably requestBorrowers showing that, (ii) as of the effective date of the merger or consolidation on a pro forma basis and after giving effect theretoto such Borrowing, no Event of Default or Default shall exist or have occurred the Trimark Acquisition and any related transactions, the Credit Parties are in compliance with the covenants contained in Section 6.15 through 6.19, inclusive, and that there will be continuingsufficient Borrowing Base to cover all outstanding Loans, L/C Exposure and BA Exposure and (iii) acquisitions for which the Administrative Agent shall have received true, correct and complete copies cash consideration does not exceed the lesser of all agreements, documents and instruments relating to such merger, including, but not limited to, the certificate or certificates of merger as filed with each appropriate Secretary of State, (iv) the surviving entity shall expressly confirm, ratify and assume the Credit Party Obligations and the Credit Documents to which it is a party in writing, in form and substance reasonably satisfactory to the Administrative Agent, and execute and deliver such other agreements, documents and instruments as the Administrative Agent may request in connection therewith, (v) the surviving entity of a merger between the Borrower and a Guarantor shall be the Borrower, and (vi) each Credit Party shall ratify and confirm that its guarantee of the Credit Party Obligations shall apply to the Credit Party Obligations as assumed by such surviving entity; or (b) sell, assign, transfer, abandon or otherwise dispose of any Capital Stock, Indebtedness or assets to any other Person, except for: (i) sales of Inventory and rendition of services in the ordinary course of business; (ii) the sale or other disposition of equipment so long as, as of the date of such sale and after giving effect thereto, no Event of Default or Default shall exist or have occurred; (iii) the issuance and sale by the Borrower of its Capital Stock after the date hereof; provided, that, (A) 50% of the Borrower shall not be required to pay any cash dividends or repurchase or redeem its Capital Stock or make any other payments in respect thereof, except to the extent such dividends, or repurchases or redemptions are otherwise permitted under Section 6.10 hereoftotal consideration, (B) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of the Borrower to request or receive Loans or Letters of Credit or the right of the Borrower to amend or modify any of the terms and conditions of this Credit Agreement or any of the other Credit Documents or otherwise in any way relate to or affect the arrangements of the Borrower with the Administrative Agent and Lenders or are more restrictive or burdensome to the Borrower than the terms of any Capital Stock of the Borrower in effect on the date hereof US$25,000,000 and (C) as the amount of the date Borrowing Base which would be attributable to the acquired assets upon closing of such issuance acquisition, and sale and after giving effect thereto, no Event of Default or Default shall exist or have occurred and be continuing; (iv) in addition to the issuance of Capital Stock permitted in Section 6.4(b)(ii) above, the issuance of Capital Stock of any Credit Party consisting only other consideration consists solely of common stock pursuant to a stock option plan of LGEC, Subordinated Debt or 401(k) plan of such Credit Party for the benefit of its employees, directors and consultantsPermitted Preferred Stock; provided, that, in no event shall such Credit Party be required to issue, or shall such Credit Party issue, Capital Stock pursuant to such stock option plan or 401(khowever that (x) plan which would result in a Change of Control or other Event of Default; (v) the termination of any Hedging Agreement; (vi) the Credit Parties and their Subsidiaries may encumber (to the extent permitted by Section 6.2), sell, enter into sale-leaseback agreements (to the extent permitted by Section 6.12) or otherwise dispose of Properties, in each case for fair market value, which are not Collateral (a) with a fee simple fair market value of $125,000,000 in the aggregate or less and (b) subject to Section 5.12, with a fee simple fair market value of greater than $125,000,000 in the aggregate; and (vii) the Borrower may sell the Collateral for fair market value so long as the Borrower complies with the provisions of Sections 2.4(b)(i) and 5.12. (c) wind up, liquidate or dissolve except that any Subsidiary of the Borrower or a Guarantor may wind up, liquidate and dissolve; provided, that, each of the following conditions is satisfied: (i) the winding up, liquidation and dissolution of such Subsidiary shall not violate any Requirement of Law in any material respect and shall not conflict with or result in the breach of, or constitute a default under, any material indenture, mortgage, deed of trust, or other agreement or instrument to which the Borrower, such Guarantor or such Subsidiary is a party or may be bound, (ii) such winding up, liquidation or dissolution shall be done in accordance with all Requirements of Law, (iii) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Subsidiary shall be duly and validly transferred and assigned to the Borrower, a Guarantor or in the case of a Subsidiary which is not a Borrower or Guarantor, to the Borrower, a Guarantor or another Subsidiary (which is not a Borrower or Guarantor) free and clear of any Liens, restrictions or encumbrances other than the security interests and Liens of the Administrative Agent or other Permitted Liens or restrictions or encumbrances expressly permitted hereunder (and the Administrative Agent shall have received such evidence thereof as the Administrative Agent may require), (iv) the Administrative Agent shall have received copies of all documents and agreements of such Subsidiary to be filed with any Governmental Authority or otherwise required to effectuate such winding up, liquidation or dissolution, (v) no Credit Party shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the Person which is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder or such obligations or liabilities are not prohibited under this Credit Agreement or any of the other Credit Documents, (vi) the Administrative Agent shall have received not less than ten (10) Business Days’ prior written notice of the intention of such Subsidiary to wind up, liquidate or dissolve, (vii) the Administrative Agent shall have received copies of such deeds, assignments or other agreements as the Administrative Agent may reasonably request to evidence and confirm the transfer of such assets from the Subsidiary which is liquidating to the transferee, and (viii) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall exist or have occurred be continuing upon giving effect to any such acquisition and be continuing; or (dy) lease or sublease Mortgaged Properties that (i) represent more than 15% of the total number of Mortgaged Properties (other than those aggregate cash consideration paid for all acquisitions made in reliance on the exception set forth on Schedule 3.31(b)in clause (iii) at any time and (ii) together with the Mortgaged Properties that are vacant or otherwise non-operational or that are being altered, renovated or refurbished at any one time (excluding minor alterations and upkeep) in accordance with the terms of Section 5.12(a), represent more than 25% of the total number of Mortgaged Properties at any time; provided that the Credit Parties shall promptly (but in any event within five (5) Business Days after the execution and delivery of such lease or sublease) notify the Administrative Agent of any lease or sublease of a Mortgaged Property and any such lease or sublease (A) shall be on market terms and at market rents, (B) shall in no way diminish the fair market value or useful life of such Mortgaged Property, (C) above shall not release any Credit Party from its obligations under the Mortgaged Instrument with respect to such Mortgaged Property, (D) shall be expressly subject and subordinate to the Mortgaged Instrument with respect to such Mortgaged Property and (E) shall be subject to a subordination, non-disturbance and attornment agreement to the extent requested by the Borrower or the Administrative Agent and consented to by the Administrative Agent (such consent not to be unreasonably withheld), which agreement shall be in form and substance reasonably satisfactory to the Borrower and the Administrative Agent; or (e) agree to do any of the foregoing (unless such agreement has been consented to in writing by the Administrative Agent or includes as a condition to the effectiveness of such agreement that the Administrative Agent’s consent thereto be obtained)exceed US$40,000,000.

Consolidation, Merger, Sale or Purchase of Assets, etc. The Credit Parties will not, nor will they permit any Subsidiary to, directly or indirectly, (a) merge into Dissolve, liquidate or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with itwind up its affairs, except that any Credit Party may merge with and into or consolidate with any other Credit Party; provided, that, each of the following conditions is satisfied as determined by the Administrative Agent: (i) the Administrative Agent shall have received not less than five (5) days’ prior written notice of the consummation of any merger or consolidation of such Credit Party to so merge or consolidate and such information with respect thereto as the Administrative Agent may reasonably request, (ii) as of the effective date of the merger or consolidation and after giving effect thereto, no Event of Default or Default shall exist or have occurred and be continuing, (iii) the Administrative Agent shall have received true, correct and complete copies of all agreements, documents and instruments relating to such merger, including, but not limited to, the certificate or certificates of merger as filed with each appropriate Secretary of State, (iv) the surviving entity shall expressly confirm, ratify and assume the Credit Party Obligations and the Credit Documents to which it is a party in writing, in form and substance reasonably satisfactory to the Administrative Agent, and execute and deliver such other agreements, documents and instruments as the Administrative Agent may request in connection therewith, (v) the surviving entity of a merger between the Borrower and a Guarantor shall be the Borrower, and (vi) each Credit Party shall ratify and confirm that its guarantee of the Credit Party Obligations shall apply to the Credit Party Obligations as assumed by such surviving entity; or (b) sell, assign, transfer, abandon lease or otherwise dispose of any Capital Stock, Indebtedness its property or assets or agree to any other Persondo so at a future time except the following, except forwithout duplication, shall be expressly permitted: (i) sales of Inventory and rendition of services in the ordinary course of businessSpecified Sales; (ii) the sale or other disposition of equipment so long as, property or assets as a result of a Recovery Event to the date extent the net proceeds therefrom are reinvested or used to repay Loans in accordance with the terms of such sale and after giving effect thereto, no Event of Default or Default shall exist or have occurred;Section 2.5(b); and (iii) the issuance and sale by sale, lease or transfer of property or assets from a Credit Party to another Credit Party (including the Borrower liquidation or consolidation of its Capital Stock after any Credit Party (other than the date hereofBorrower) into another Credit Party); provided, thathowever, the amount of assets transferred to any Inactive Subsidiary by the Credit Parties shall be limited to such amounts as shall be necessary to satisfy obligations (Awhether now or hereafter payable) the Borrower shall not be required to pay any cash dividends or repurchase or redeem its Capital Stock or make any other payments in respect thereof, except to the extent such dividends, or repurchases or redemptions are otherwise permitted under Section 6.10 hereof, (B) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms Inactive Subsidiary that include any limitation on the right of the Borrower to request or receive Loans or Letters of Credit or the right of the Borrower to amend or modify any of the terms and conditions of this Credit Agreement or any of the other Credit Documents or otherwise in any way relate to or affect the arrangements of the Borrower with the Administrative Agent and Lenders or are more restrictive or burdensome to the Borrower than the terms of any Capital Stock of the Borrower in effect on the date hereof and (C) exist as of the date of such issuance and sale and after giving effect thereto, no Event of Default or Default shall exist or have occurred and be continuingClosing Date; (iv) in addition to the issuance other sales, leases or transfers of Capital Stock permitted in Section 6.4(b)(ii) above, the issuance of Capital Stock of any Credit Party consisting of common stock pursuant to a stock option plan property or 401(k) plan of such Credit Party for the benefit of its employees, directors and consultantsassets; provided, thatthat all such property or assets so sold or disposed of shall not, in no event shall such Credit Party be required to issue, or shall such Credit Party issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default; (v) the termination of any Hedging Agreement; (vi) the Credit Parties and their Subsidiaries may encumber (to the extent permitted by Section 6.2), sell, enter into sale-leaseback agreements (to the extent permitted by Section 6.12) or otherwise dispose of Properties, in each case for fair market value, which are not Collateral (a) with a fee simple fair market value of $125,000,000 in the aggregate during the term of this Credit Agreement, have contributed to 25% or less and (b) subject to Section 5.12, with a fee simple fair market value of greater than $125,000,000 in the aggregate; and (vii) the Borrower may sell the Collateral for fair market value so long as the Borrower complies with the provisions of Sections 2.4(b)(i) and 5.12. (c) wind up, liquidate or dissolve except that any Subsidiary more of the Operating Cash Flow of Borrower and its consolidated Subsidiaries, as calculated for the four consecutive fiscal quarters ending immediately prior to any such sale, lease or a Guarantor may wind up, liquidate and dissolvetransfer; provided, thatfurther, each of the following conditions is satisfied: that (iA) the winding up, liquidation and dissolution of such Subsidiary shall not violate any Requirement of Law in any material respect and shall not conflict with or result in the breach of, or constitute a default under, any material indenture, mortgage, deed of trust, or other agreement or instrument to which the Borrower, such Guarantor or such Subsidiary is a party or may be bound, (ii) such winding up, liquidation or dissolution shall be done in accordance with all Requirements of Law, (iii) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Subsidiary shall be duly and validly transferred and assigned to the Borrower, a Guarantor or in the case of a Subsidiary which is not a Borrower or Guarantor, to the Borrower, a Guarantor or another Subsidiary (which is not a Borrower or Guarantor) free and clear of any Liens, restrictions or encumbrances other than the security interests and Liens of the Administrative Agent or other Permitted Liens or restrictions or encumbrances expressly permitted hereunder (and the Administrative Agent shall have received such evidence thereof as the Administrative Agent may require), (iv) the Administrative Agent shall have received copies of all documents and agreements of such Subsidiary to be filed with any Governmental Authority or otherwise required to effectuate such winding up, liquidation or dissolution, (v) no Credit Party shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the Person which is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder or such obligations or liabilities are not prohibited under this Credit Agreement or any of the other Credit Documents, (vi) the Administrative Agent shall have received not less than ten (10) Business Days’ prior written notice of the intention of such Subsidiary to wind up, liquidate or dissolve, (vii) the Administrative Agent shall have received copies of such deeds, assignments or other agreements as the Administrative Agent may reasonably request to evidence and confirm the transfer of such assets from the Subsidiary which is liquidating to the transferee, and (viii) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall exist or have occurred and or be continuing; or (d) continuing both before or after such sale, lease or sublease Mortgaged Properties that (i) represent more than 15% transfer of the total number of Mortgaged Properties (other than those set forth on Schedule 3.31(b)) at any time and (ii) together with the Mortgaged Properties that are vacant property or otherwise non-operational or that are being altered, renovated or refurbished at any one time (excluding minor alterations and upkeep) in accordance with the terms of Section 5.12(a), represent more than 25% of the total number of Mortgaged Properties at any time; provided that the Credit Parties shall promptly (but in any event within five (5) Business Days after the execution and delivery of such lease or sublease) notify the Administrative Agent of any lease or sublease of a Mortgaged Property and any such lease or sublease (A) shall be on market terms and at market rentsassets, (B) after giving effect to such sale, lease or transfer of property or assets, Borrower and its Subsidiaries shall be in no way diminish compliance on a pro forma basis with the fair market value or useful life of such Mortgaged Propertyfinancial covenant set forth in Section 5.9, (C) shall not release any Credit Party from its obligations under the Mortgaged Instrument with respect to such Mortgaged Propertysale, lease or transfer of property or assets is effected on an arm’s length basis and (D) shall be expressly subject and subordinate any such sale, lease or transfer of property or assets made pursuant to the Mortgaged Instrument with respect to such Mortgaged Property and this clause (Eiv) shall be subject to Section 2.5(b)(ii); and (v) the dissolution, liquidation or winding up of any Inactive Subsidiary; provided that no asset of such Inactive Subsidiary shall be transferred to a subordinationPerson other than a Credit Party in connection with such dissolution, nonliquidation or winding up. With respect to clauses (i), (ii) and (iv) above (other than Specified Sales consisting of trade-disturbance ins of vehicles or equipment), at least 75% of the consideration received therefor by the applicable Credit Party shall be in the form of cash, Cash Equivalents or fixed or capital assets useful in a Permitted Business. (b) Purchase, lease or otherwise acquire (in a single transaction or a series of related transactions) the property or assets of any Person (other than purchases or other acquisitions of inventory, leases, materials, property and attornment agreement equipment in the ordinary course of business, except as otherwise limited or prohibited herein), or enter into any transaction of merger or consolidation, except for (i) Investments or acquisitions permitted pursuant to Section 6.6, (ii) Permitted Acquisitions and (iii) the extent requested by merger or consolidation of the Borrower or the Administrative Agent one of its Subsidiaries with and consented to by the Administrative Agent (such consent not to be unreasonably withheld), which agreement shall be in form and substance reasonably satisfactory to into a Credit Party; provided that if the Borrower and is a party thereto, the Administrative Agent; or (e) agree to do any of Borrower will be the foregoing (unless such agreement has been consented to in writing by the Administrative Agent or includes as a condition to the effectiveness of such agreement that the Administrative Agent’s consent thereto be obtained)surviving corporation.

Consolidation, Merger, Sale or Purchase of Assets, etc. The Credit Parties will not, nor will they permit any Subsidiary to, directly or indirectly, (a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it, except that (1) for any merger consummated as part of an Acquisition permitted pursuant to Section 6.5(g) and (2) for any merger or consolidation of a Credit Party may merge with and or into or consolidate with any other Credit Party; provided, that, each of the following conditions is satisfied as determined by the Administrative Agent: (i) the Administrative Agent shall have received not less than five (5) days’ prior written notice of the consummation of any merger or consolidation of such involving a Credit Party to so merge or consolidate and such information with respect thereto as the Administrative Agent may reasonably request, (ii) as of the effective date of the merger or consolidation and after giving effect thereto, no Event of Default or Default shall exist or have occurred and be continuing, (iii) the Administrative Agent shall have received true, correct and complete copies of all agreements, documents and instruments relating to such merger, including, but not limited to, the certificate or certificates of merger as filed with each appropriate Secretary of State, (iv) the surviving entity shall expressly confirm, ratify and assume the Credit Party Obligations and the Credit Documents to which it is a party in writing, in form and substance reasonably satisfactory to the Administrative Agent, and execute and deliver such other agreements, documents and instruments as the Administrative Agent may request in connection therewith, (v) the surviving entity of a merger between the any Borrower and a Guarantor or any other Person shall be such Borrower and the Borrowersurviving entity of a merger between a Guarantor and any other Person (other than the Borrowers) shall be or become a Guarantor, and (vi) each Credit Party shall ratify and confirm that its guarantee of the Credit Party Obligations shall apply to the Credit Party Obligations as assumed by such surviving entity; or (b) sell, assign, transfer, abandon or otherwise dispose of any Capital Stock, Indebtedness or assets to any other Person, except for: (i) sales of Inventory and rendition of services in the ordinary course of business; (ii) the sale or other disposition of equipment so long as, as of the date of such sale and after giving effect thereto, no Event of Default or Default shall exist or have occurred; (iii) the issuance and sale by the any Borrower of its Capital Stock after the date hereof; provided, that, (A) the Borrower Borrowers shall not be required to pay any cash dividends or repurchase or redeem its Capital Stock or make any other payments in respect thereof, except to the extent such dividends, or repurchases or redemptions are otherwise permitted under Section 6.10 hereof, (B) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of the Borrower Borrowers to request or receive Term Loans or Letters of Credit or the right of the Borrower Borrowers to amend or modify any of the terms and conditions of this Credit Agreement or any of the other Credit Documents or otherwise in any way relate to or affect the arrangements of the Borrower Borrowers with the Administrative Agent and Lenders or are more restrictive or burdensome to the Borrower Borrowers than the terms of any Capital Stock of the Borrower Borrowers in effect on the date hereof and (C) as of the date of such issuance and sale and after giving effect thereto, no Event of Default or Default shall exist or have occurred and be continuing; (iv) in addition to the issuance of Capital Stock permitted in Section 6.4(b)(ii6.4(b)(iii) above, the issuance of Capital Stock of any Credit Party consisting of common stock pursuant to a stock option plan or 401(k) plan of such Credit Party for the benefit of its employees, directors and consultants; provided, that, in no event shall such Credit Party be required to issue, or shall such Credit Party issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default; (v) the termination of any Hedging Agreement; (vi) the Credit Parties and their Subsidiaries may encumber (to the extent permitted by Section 6.2), sell, enter into sale-leaseback agreements (to the extent permitted by Section 6.12) or otherwise dispose of Properties, in each case for fair market value, which are not Collateral (a) with a fee simple fair market value of $125,000,000 in the aggregate or less and (b) subject to Section 5.12, with a fee simple fair market value of greater than $125,000,000 in the aggregate; andthe (vii) the Borrower Borrowers may sell the Collateral for fair market value so long as the Borrower complies Borrowers comply with the provisions of Sections 2.4(b)(i) and 5.12. (c) wind up, liquidate or dissolve except that any Subsidiary of the Borrower Borrowers or a Guarantor may wind up, liquidate and dissolve; provided, that, each of the following conditions is satisfied: (i) the winding up, liquidation and dissolution of such Subsidiary shall not violate any Requirement of Law in any material respect and shall not conflict with or result in the breach of, or constitute a default under, any material indenture, mortgage, deed of trust, or other agreement or instrument to which the BorrowerBorrowers, such Guarantor or such Subsidiary is a party or may be bound, (ii) such winding up, liquidation or dissolution shall be done in accordance with all Requirements of Law, (iii) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Subsidiary shall be duly and validly transferred and assigned to the BorrowerBorrowers, a Guarantor or in the case of a Subsidiary which is not a Borrower or Guarantor, to the BorrowerBorrowers, a Guarantor or another Subsidiary (which is not a Borrower or Guarantor) free and clear of any Liens, restrictions or encumbrances other than the security interests and Liens of the Administrative Agent or other Permitted Liens or restrictions or encumbrances expressly permitted hereunder (and the Administrative Agent shall have received such evidence thereof as the Administrative Agent may require), (iv) the Administrative Agent shall have received copies of all documents and agreements of such Subsidiary to be filed with any Governmental Authority or otherwise required to effectuate such winding up, liquidation or dissolution, (v) no Credit Party shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the Person which is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder or such obligations or liabilities are not prohibited under this Credit Agreement or any of the other Credit Documents, (vi) the Administrative Agent shall have received not less than ten (10) Business Days’ prior written notice of the intention of such Subsidiary to wind up, liquidate or dissolve, (vii) the Administrative Agent shall have received copies of such deeds, assignments or other agreements as the Administrative Agent may reasonably request to evidence and confirm the transfer of such assets from the Subsidiary which is liquidating to the transferee, and (viii) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; or82 (d) lease or sublease Mortgaged Properties that (i) represent more than 15% of the total number of Mortgaged Properties (other than those set forth on Schedule 3.31(b)) to the Disclosure Letter at any time and (ii) together with the Mortgaged Properties that are vacant or otherwise non-operational or that are being altered, renovated or refurbished at any one time (excluding minor alterations and upkeep) in accordance with the terms of Section 5.12(a), represent more than 25% of the total number of Mortgaged Properties at any time; provided that the Credit Parties shall promptly (but in any event within five (5) Business Days after the execution and delivery of such lease or sublease) notify the Administrative Agent of any lease or sublease of a Mortgaged Property and any such lease or sublease (A) shall be on market terms and at market rents, (B) shall in no way diminish the fair market value or useful life of such Mortgaged Property, (C) shall not release any Credit Party from its obligations under the Mortgaged Instrument with respect to such Mortgaged Property, (D) shall be expressly subject and subordinate to the Mortgaged Instrument with respect to such Mortgaged Property and (E) shall be subject to a subordination, non-disturbance and attornment agreement to the extent requested by the Borrower Borrowers or the Administrative Agent and consented to by the Administrative Agent (such consent not to be unreasonably withheld), which agreement shall be in form and substance reasonably satisfactory to the Borrower Borrowers and the Administrative Agent; or (e) agree to do any of the foregoing (unless such agreement has been consented to in writing by the Administrative Agent or includes as a condition to the effectiveness of such agreement that the Administrative Agent’s consent thereto be obtained).

Consolidation, Merger, Sale or Purchase of Assets, etc. The Credit Parties will not, nor will they permit any Subsidiary to, directly or indirectly, (a) merge Enter into a transaction of merger or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with itconsolidation, except that any Credit Party may merge with and into or consolidate with any other Credit Party; provided, that, each a ------ member of the following conditions is satisfied as determined by the Administrative Agent: (i) the Administrative Agent shall have received not less than five (5) days’ prior written notice Consolidated Group may be a party to a transaction of the consummation of any merger or consolidation of such Credit Party to so merge or consolidate and such information with respect thereto as the Administrative Agent may reasonably request, (ii) as of the effective date of the merger or consolidation and after giving effect thereto, no Event of Default or Default shall exist or have occurred and be continuing, (iii) the Administrative Agent shall have received true, correct and complete copies of all agreements, documents and instruments relating to such merger, including, but not limited to, the certificate or certificates of merger as filed with each appropriate Secretary of State, (iv) the surviving entity shall expressly confirm, ratify and assume the Credit Party Obligations and the Credit Documents to which it is a party in writing, in form and substance reasonably satisfactory to the Administrative Agent, and execute and deliver such other agreements, documents and instruments as the Administrative Agent may request in connection therewith, (v) the surviving entity of a merger between the Borrower and a Guarantor shall be the Borrower, and (vi) each Credit Party shall ratify and confirm that its guarantee of the Credit Party Obligations shall apply to the Credit Party Obligations as assumed by such surviving entity; or (b) sell, assign, transfer, abandon or otherwise dispose of any Capital Stock, Indebtedness or assets to any other Person, except for: (i) sales of Inventory and rendition of services in the ordinary course of business; (ii) the sale or other disposition of equipment so long as, as of the date of such sale and after giving effect thereto, no Event of Default or Default shall exist or have occurred; (iii) the issuance and sale by the Borrower of its Capital Stock after the date hereof; provided, that, provided that (A) the Borrower may be a party to -------- a transaction of merger or consolidation only with another member of the Consolidated Group and in any such case the Borrower shall not be required to pay any cash dividends or repurchase or redeem its Capital Stock or make any other payments in respect thereof, except to the extent such dividends, or repurchases or redemptions are otherwise permitted under Section 6.10 hereofsurviving corporation thereto, (B) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of the Borrower to request or receive Loans or Letters of Credit or the right of the Borrower to amend or modify any of the terms and conditions of this Credit Agreement or any of the other Credit Documents or otherwise in any way relate other case, the surviving corporation shall be a Domestic Subsidiary and such Domestic Subsidiary shall become a Guarantor hereunder as an Additional Credit Party pursuant to or affect the arrangements of the Borrower with the Administrative Agent and Lenders or are more restrictive or burdensome to the Borrower than the terms of any Capital Stock of the Borrower in effect on the date hereof and Section 7.11 concurrently therewith, (C) as of the date of such issuance and sale and after giving effect thereto, no Event of Default or Default shall exist or have occurred and be continuing; (iv) in addition to the issuance of Capital Stock permitted in Section 6.4(b)(ii) above, the issuance of Capital Stock of any Credit Party consisting of common stock pursuant to a stock option plan or 401(k) plan of such Credit Party for the benefit of its employees, directors and consultants; provided, that, in no event shall such Credit Party be required to issue, or shall such Credit Party issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default; (v) the termination of any Hedging Agreement; (vi) the Credit Parties and their Subsidiaries may encumber (to the extent permitted by Section 6.2), sell, enter into sale-leaseback agreements (to the extent permitted by Section 6.12) or otherwise dispose of Properties, in each case for fair market value, which are not Collateral (a) with a fee simple fair market value of $125,000,000 in the aggregate or less and (b) subject to Section 5.12, with a fee simple fair market value of greater than $125,000,000 in the aggregate; and (vii) the Borrower may sell the Collateral for fair market value so long as the Borrower complies with the provisions of Sections 2.4(b)(i) and 5.12. (c) wind up, liquidate or dissolve except that any Subsidiary of the Borrower or a Guarantor may wind up, liquidate and dissolve; provided, that, each of the following conditions is satisfied: (i) the winding up, liquidation and dissolution of such Subsidiary shall not violate any Requirement of Law in any material respect and shall not conflict with or result in the breach of, or constitute a default under, any material indenture, mortgage, deed of trust, or other agreement or instrument to which the Borrower, such Guarantor or such Subsidiary is a party or may be bound, (ii) such winding up, liquidation or dissolution shall be done in accordance with all Requirements of Law, (iii) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Subsidiary shall be duly and validly transferred and assigned to the Borrower, a Guarantor or in the case of a Subsidiary which is not a Borrower or Guarantor, to the Borrower, a Guarantor or another Subsidiary (which is not a Borrower or Guarantor) free and clear of any Liens, restrictions or encumbrances other than the security interests and Liens of the Administrative Agent or other Permitted Liens or restrictions or encumbrances expressly permitted hereunder (and the Administrative Agent shall have received such evidence thereof as the Administrative Agent may require), (iv) the Administrative Agent shall have received copies of all documents and agreements of such Subsidiary to be filed with any Governmental Authority or otherwise required to effectuate such winding up, liquidation or dissolution, (v) no Credit Party shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the Person which is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder or such obligations or liabilities are not prohibited under this Credit Agreement or any of the other Credit Documents, (vi) the Administrative Agent shall have received not less than ten (10) Business Days’ prior written notice of the intention of such Subsidiary to wind up, liquidate or dissolve, (vii) the Administrative Agent shall have received copies of such deeds, assignments or other agreements as the Administrative Agent may reasonably request to evidence and confirm the transfer of such assets from the Subsidiary which is liquidating to the transferee, and (viii) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall exist either immediately prior to or have occurred immediately after giving effect thereto and (D) in the case of a transaction of merger or consolidation with any Person which is not a member of the Consolidated Group, the provisions of subsection (c) of this Section 8.3 shall be continuingcomplied with. (b) Sell, lease, transfer or otherwise dispose of assets, property and/or operations (including any sale-leaseback transaction, but excluding the sale of inventory in the ordinary course of business), other than to another Credit Party, which (i) in any instance (including any series of related transactions) shall constitute more than five percent (5%) of consolidated assets at the end of the immediately preceding fiscal year or five percent (5%) of Consolidated Net Income for the immediately preceding fiscal year, or (ii) in the aggregate in any fiscal year shall constitute more than ten percent (10%) of consolidated assets at the end of the immediately preceding fiscal year or ten percent (10%) Consolidated Net Income for the immediately preceding fiscal year, and (iii) no Default or Event of Default would exist after giving effect thereto on a Pro Forma Basis. (i) in the case of an acquisition of capital stock or other ownership interest after giving effect thereto, such Person will not be a Subsidiary, then such acquisition will not cause a violation of Section 8.4; or (dii) lease (A) in the case of an acquisition of capital stock or sublease Mortgaged Properties that other ownership interest where, after giving effect thereto, such Person will be a Subsidiary, or (iB) represent more in the case of an acquisition of assets, property and/or operations then (I) (x) the total cash consideration paid in connection with any such acquisition (or series of related transactions) shall not exceed $15,000,000 in any instance (or in the case of an acquisition of the type described in clause (c)(ii)(A) above constituting less than 15100% of the outstanding capital stock or other ownership interests of any Person, the total number of Mortgaged Properties (other than those set forth on Schedule 3.31(bcash consideration paid in connection therewith shall not exceed $10,000,000 in any instance)) at any time ; and (iiy) together with the Mortgaged Properties that are vacant aggregate cost (including, without limitation, cash consideration paid and assumption of Indebtedness) of all such acquisitions (or otherwise non-operational or that are being altered, renovated or refurbished at any one time (excluding minor alterations and upkeep) in accordance with the terms series of Section 5.12(a), represent more than 25% of the total number of Mortgaged Properties at any time; provided that the Credit Parties shall promptly (but in any event within five (5) Business Days after the execution and delivery of such lease or sublease) notify the Administrative Agent of any lease or sublease of a Mortgaged Property and any such lease or sublease (A) shall be on market terms and at market rents, (B) shall in no way diminish the fair market value or useful life of such Mortgaged Property, (Crelated transactions) shall not release exceed $30,000,000 during any Credit Party from its obligations under fiscal year; provided, however, acquisitions -------- ------- specifically reviewed and approved by the Mortgaged Instrument with respect Required Lenders (and not automatically approved pursuant to such Mortgaged Property, clause (Dx) above) shall not be expressly counted toward the aggregate annual limit in this clause (y); (II) the Board of Directors of the Person which is the subject and subordinate to of such acquisition shall have approved such acquisition; and (III) no Default or Event of Default would exist after giving effect thereto on a Pro Forma Basis. (d) In the Mortgaged Instrument with respect to such Mortgaged Property and (E) shall be subject to a subordination, non-disturbance and attornment agreement to the extent requested by the Borrower or the Administrative Agent and consented to by the Administrative Agent (such consent not to be unreasonably withheld), which agreement shall be in form and substance reasonably satisfactory to case of the Borrower and the Administrative Agent; orany Subsidiary which is not wholly-owned, liquidate, wind-up or dissolve, whether voluntarily or involuntarily (or suffer to permit any such liquidation or dissolution). (e) agree to do Alter the character of their business in any material respect from that conducted as of the foregoing (unless such agreement has been consented to in writing by the Administrative Agent Closing Date and similar or includes as a condition to the effectiveness of such agreement that the Administrative Agent’s consent thereto be obtained)related businesses.

Consolidation, Merger, Sale or Purchase of Assets, etc. The Credit Parties Borrower will not, nor will they it permit any Subsidiary of its Subsidiaries to, directly or indirectly,: (a) dissolve, liquidate or wind up their affairs, or enter into any transaction of merger or consolidation; provided, however, that, so long as no Default or Event of Default would be directly or indirectly caused as a result thereof, (i) the Borrower may merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it, except of its Subsidiaries provided that the Borrower is the surviving corporation; (ii) any Credit Party (other than the Borrower) may merge with and into or consolidate with any other Credit PartyParty (other than the Borrower); provided(iii) any Credit Party may merge or consolidate with any Person that is not a Credit Party provided that (A) such Credit Party is the surviving corporation and (B) no later than 14 days prior to such merger or consolidation, that, each of the following conditions is satisfied as determined by Agent and the Administrative Agent: (i) the Administrative Agent Lenders shall have received not less than five (5) days’ prior written notice a certificate of the consummation of any merger chief financial officer or consolidation of such Credit Party to so merge or consolidate and such information with respect thereto as the Administrative Agent may reasonably request, (ii) as treasurer of the effective date of the merger Borrower providing facts or consolidation and computations in reasonable detail demonstrating that, after giving effect thereto, no Event of Default or Default shall exist or have occurred and be continuing, (iii) the Administrative Agent shall have received true, correct and complete copies of all agreements, documents and instruments relating on a Pro Forma Basis to such merger, including, but not limited to, the certificate merger or certificates of merger as filed with each appropriate Secretary of State, (iv) the surviving entity shall expressly confirm, ratify and assume the Credit Party Obligations and the Credit Documents to which it is a party in writing, in form and substance reasonably satisfactory to the Administrative Agent, and execute and deliver such other agreements, documents and instruments as the Administrative Agent may request in connection therewith, (v) the surviving entity of a merger between the Borrower and a Guarantor shall be the Borrower, and (vi) each Credit Party shall ratify and confirm that its guarantee of the Credit Party Obligations shall apply to the Credit Party Obligations as assumed by such surviving entity; or (b) sell, assign, transfer, abandon or otherwise dispose of any Capital Stock, Indebtedness or assets to any other Person, except for: (i) sales of Inventory and rendition of services in the ordinary course of business; (ii) the sale or other disposition of equipment so long as, as of the date of such sale and after giving effect thereto, no Event of Default or Default shall exist or have occurred; (iii) the issuance and sale by the Borrower of its Capital Stock after the date hereof; provided, that, (A) the Borrower shall not be required to pay any cash dividends or repurchase or redeem its Capital Stock or make any other payments in respect thereof, except to the extent such dividends, or repurchases or redemptions are otherwise permitted under Section 6.10 hereof, (B) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of the Borrower to request or receive Loans or Letters of Credit or the right of the Borrower to amend or modify any of the terms and conditions of this Credit Agreement or any of the other Credit Documents or otherwise in any way relate to or affect the arrangements of the Borrower with the Administrative Agent and Lenders or are more restrictive or burdensome to the Borrower than the terms of any Capital Stock of the Borrower in effect on the date hereof and (C) as of the date of such issuance and sale and after giving effect thereto, no Event of Default or Default shall exist or have occurred and be continuing; (iv) in addition to the issuance of Capital Stock permitted in Section 6.4(b)(ii) above, the issuance of Capital Stock of any Credit Party consisting of common stock pursuant to a stock option plan or 401(k) plan of such Credit Party for the benefit of its employees, directors and consultants; provided, that, in no event shall such Credit Party be required to issue, or shall such Credit Party issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default; (v) the termination of any Hedging Agreement; (vi) the Credit Parties and their Subsidiaries may encumber (to the extent permitted by Section 6.2), sell, enter into sale-leaseback agreements (to the extent permitted by Section 6.12) or otherwise dispose of Properties, in each case for fair market value, which are not Collateral (a) with a fee simple fair market value of $125,000,000 in the aggregate or less and (b) subject to Section 5.12, with a fee simple fair market value of greater than $125,000,000 in the aggregate; and (vii) the Borrower may sell the Collateral for fair market value so long as the Borrower complies with the provisions of Sections 2.4(b)(i) and 5.12. (c) wind up, liquidate or dissolve except that any Subsidiary of the Borrower or a Guarantor may wind up, liquidate and dissolve; provided, that, each of the following conditions is satisfied: (i) the winding up, liquidation and dissolution of such Subsidiary shall not violate any Requirement of Law in any material respect and shall not conflict with or result in the breach of, or constitute a default under, any material indenture, mortgage, deed of trust, or other agreement or instrument to which the Borrower, such Guarantor or such Subsidiary is a party or may be bound, (ii) such winding up, liquidation or dissolution shall be done in accordance with all Requirements of Law, (iii) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Subsidiary shall be duly and validly transferred and assigned to the Borrower, a Guarantor or in the case of a Subsidiary which is not a Borrower or Guarantor, to the Borrower, a Guarantor or another Subsidiary (which is not a Borrower or Guarantor) free and clear of any Liens, restrictions or encumbrances other than the security interests and Liens of the Administrative Agent or other Permitted Liens or restrictions or encumbrances expressly permitted hereunder (and the Administrative Agent shall have received such evidence thereof as the Administrative Agent may require), (iv) the Administrative Agent shall have received copies of all documents and agreements of such Subsidiary to be filed with any Governmental Authority or otherwise required to effectuate such winding up, liquidation or dissolution, (v) no Credit Party shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the Person which is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder or such obligations or liabilities are not prohibited under this Credit Agreement or any of the other Credit Documents, (vi) the Administrative Agent shall have received not less than ten (10) Business Days’ prior written notice of the intention of such Subsidiary to wind up, liquidate or dissolve, (vii) the Administrative Agent shall have received copies of such deeds, assignments or other agreements as the Administrative Agent may reasonably request to evidence and confirm the transfer of such assets from the Subsidiary which is liquidating to the transferee, and (viii) as of the date of such winding up, liquidation or dissolution and after giving effect theretoconsolidation, no Default or Event of Default shall would exist or have occurred and be continuinghereunder; or (div) lease or sublease Mortgaged Properties that (i) represent more than 15% any Subsidiary of the total number Borrower that is not a Credit Party may merge or consolidate with any other Person that is not a Credit Party provided that after giving effect on a Pro Forma Basis to such merger or consolidation, no Default or Event of Mortgaged Properties (other than those set forth on Schedule 3.31(b)) at any time Default would exist hereunder; and (iiv) together with the Mortgaged Properties that are vacant or otherwise nonany Wholly-operational or that are being altered, renovated or refurbished at any one time (excluding minor alterations and upkeep) in accordance with the terms of Section 5.12(a), represent more than 25% Owned Subsidiary of the total number of Mortgaged Properties Borrower may dissolve, liquidate or wind up its affairs at any time; provided that the Credit Parties shall promptly (but in any event within five (5) Business Days after the execution and delivery of such lease or sublease) notify the Administrative Agent of any lease or sublease of a Mortgaged Property and any such lease or sublease (A) shall be on market terms and at market rents, (B) shall in no way diminish the fair market value or useful life of such Mortgaged Property, (C) shall not release any Credit Party from its obligations under the Mortgaged Instrument with respect to such Mortgaged Property, (D) shall be expressly subject and subordinate to the Mortgaged Instrument with respect to such Mortgaged Property and (E) shall be subject to a subordination, non-disturbance and attornment agreement to the extent requested by the Borrower or the Administrative Agent and consented to by the Administrative Agent (such consent not to be unreasonably withheld), which agreement shall be in form and substance reasonably satisfactory to the Borrower and the Administrative Agent; or (e) agree to do any of the foregoing (unless such agreement has been consented to in writing by the Administrative Agent or includes as a condition to the effectiveness of such agreement that the Administrative Agent’s consent thereto be obtained).;

Consolidation, Merger, Sale or Purchase of Assets, etc. The Credit Parties will not, nor will they permit any Subsidiary to, directly or indirectly, (a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it, except that (1) for any merger consummated as part of an Acquisition permitted pursuant to Section 6.5(g) and (2) for any merger or consolidation of a Credit Party may merge with and or into or consolidate with any other Credit Party; provided, that, each of the following conditions is satisfied as determined by the Administrative Agent: (i) the Administrative Agent shall have received not less than five (5) days’ prior written notice of the consummation of any merger or consolidation of such involving a Credit Party to so merge or consolidate and such information with respect thereto as the Administrative Agent may reasonably request, (ii) as of the effective date of the merger or consolidation and after giving effect thereto, no Event of Default or Default shall exist or have occurred and be continuing, (iii) the Administrative Agent shall have received true, correct and complete copies of all agreements, documents and instruments relating to such merger, including, but not limited to, the certificate or certificates of merger as filed with each appropriate Secretary of State, (iv) the surviving entity shall expressly confirm, ratify and assume the Credit Party Obligations and the Credit Documents to which it is a party in writing, in form and substance reasonably satisfactory to the Administrative Agent, and execute and deliver such other agreements, documents and instruments as the Administrative Agent may request in connection therewith, (v) the surviving entity of a merger between the Borrower and a Guarantor or any other Person shall be the Borrower and the surviving entity of a merger between a Guarantor and any other Person (other than the Borrower) shall be or become a Guarantor, and (vi) each Credit Party shall ratify and confirm that its guarantee of the Credit Party Obligations shall apply to the Credit Party Obligations as assumed by such surviving entity; or (b) sell, assign, transfer, abandon or otherwise dispose of any Capital Stock, Indebtedness or assets to any other Person, except for: (i) sales of Inventory and rendition of services in the ordinary course of business; (ii) the sale or other disposition of equipment so long as, as of the date of such sale and after giving effect thereto, no Event of Default or Default shall exist or have occurred; (iii) the issuance and sale by the Borrower of its Capital Stock after the date hereof; provided, that, (A) the Borrower shall not be required to pay any cash dividends or repurchase or redeem its Capital Stock or make any other payments in respect thereof, except to the extent such dividends, or repurchases or redemptions are otherwise permitted under Section 6.10 hereof, (B) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of the Borrower to request or receive Loans or Letters of Credit or the right of the Borrower to amend or modify any of the terms and conditions of this Credit Agreement or any of the other Credit Documents or otherwise in any way relate to or affect the arrangements of the Borrower with the Administrative Agent and Lenders or are more restrictive or burdensome to the Borrower than the terms of any Capital Stock of the Borrower in effect on the date hereof and (C) as of the date of such issuance and sale and after giving effect thereto, no Event of Default or Default shall exist or have occurred and be continuing; (iv) in addition to the issuance of Capital Stock permitted in Section 6.4(b)(ii) above, the issuance of Capital Stock of any Credit Party consisting of common stock pursuant to a stock option plan or 401(k) plan of such Credit Party for the benefit of its employees, directors and consultants; provided, that, in no event shall such Credit Party be required to issue, or shall such Credit Party issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default; (v) the termination of any Hedging Agreement; (vi) the Credit Parties and their Subsidiaries may encumber (to the extent permitted by Section 6.2), sell, enter into sale-leaseback agreements (to the extent permitted by Section 6.12) or otherwise dispose of Properties, in each case for fair market value, which are not Collateral (a) with a fee simple fair market value of $125,000,000 in the aggregate or less and (b) subject to Section 5.12, with a fee simple fair market value of greater than $125,000,000 in the aggregate; and (vii) the Borrower may sell the Collateral for fair market value so long as the Borrower complies with the provisions of Sections 2.4(b)(i) and 5.12. (c) wind up, liquidate or dissolve except that any Subsidiary of the Borrower or a Guarantor may wind up, liquidate and dissolve; provided, that, each of the following conditions is satisfied: (i) the winding up, liquidation and dissolution of such Subsidiary shall not violate any Requirement of Law in any material respect and shall not conflict with or result in the breach of, or constitute a default under, any material indenture, mortgage, deed of trust, or other agreement or instrument to which the Borrower, such Guarantor or such Subsidiary is a party or may be bound, (ii) such winding up, liquidation or dissolution shall be done in accordance with all Requirements of Law, (iii) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Subsidiary shall be duly and validly transferred and assigned to the Borrower, a Guarantor or in the case of a Subsidiary which is not a Borrower or Guarantor, to the Borrower, a Guarantor or another Subsidiary (which is not a Borrower or Guarantor) free and clear of any Liens, restrictions or encumbrances other than the security interests and Liens of the Administrative Agent or other Permitted Liens or restrictions or encumbrances expressly permitted hereunder (and the Administrative Agent shall have received such evidence thereof as the Administrative Agent may require), (iv) the Administrative Agent shall have received copies of all documents and agreements of such Subsidiary to be filed with any Governmental Authority or otherwise required to effectuate such winding up, liquidation or dissolution, (v) no Credit Party shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the Person which is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder or such obligations or liabilities are not prohibited under this Credit Agreement or any of the other Credit Documents, (vi) the Administrative Agent shall have received not less than ten (10) Business Days’ prior written notice of the intention of such Subsidiary to wind up, liquidate or dissolve, (vii) the Administrative Agent shall have received copies of such deeds, assignments or other agreements as the Administrative Agent may reasonably request to evidence and confirm the transfer of such assets from the Subsidiary which is liquidating to the transferee, and (viii) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; or (d) lease or sublease Mortgaged Properties that (i) represent more than 15% of the total number of Mortgaged Properties (other than those set forth on Schedule 3.31(b)) at any time and (ii) together with the Mortgaged Properties that are vacant or otherwise non-operational or that are being altered, renovated or refurbished at any one time (excluding minor alterations and upkeep) in accordance with the terms of Section 5.12(a), represent more than 25% of the total number of Mortgaged Properties at any time; provided that the Credit Parties shall promptly (but in any event within five (5) Business Days after the execution and delivery of such lease or sublease) notify the Administrative Agent of any lease or sublease of a Mortgaged Property and any such lease or sublease (A) shall be on market terms and at market rents, (B) shall in no way diminish the fair market value or useful life of such Mortgaged Property, (C) shall not release any Credit Party from its obligations under the Mortgaged Instrument with respect to such Mortgaged Property, (D) shall be expressly subject and subordinate to the Mortgaged Instrument with respect to such Mortgaged Property and (E) shall be subject to a subordination, non-disturbance and attornment agreement to the extent requested by the Borrower or the Administrative Agent and consented to by the Administrative Agent (such consent not to be unreasonably withheld), which agreement shall be in form and substance reasonably satisfactory to the Borrower and the Administrative Agent; or (e) agree to do any of the foregoing (unless such agreement has been consented to in writing by the Administrative Agent or includes as a condition to the effectiveness of such agreement that the Administrative Agent’s consent thereto be obtained).Credit