Common use of Consolidations, Mergers and Sales of Assets Clause in Contracts

Consolidations, Mergers and Sales of Assets. The Borrower will not (i) consolidate or merge with or into any Person, (ii) sell, lease or otherwise transfer all or substantially all of its assets to any other Person, or (iii) sell, transfer or otherwise dispose of its interest in any Guarantor; provided that (x) the Borrower may merge with any Wholly-Owned Consolidated Subsidiary (other than a Guarantor or a Subsidiary of a Guarantor) if immediately after such merger no Default shall have occurred and be continuing and such Wholly-Owned Consolidated Subsidiary shall expressly assume in writing all of the obligations of the Borrower hereunder, and under the Notes (if any), and (y) the Borrower may merge with any other Person (other than a Guarantor or a Subsidiary of a Guarantor) if (A) the Borrower is the corporation surviving such merger and (B) immediately after giving effect to such merger, no Default shall have occurred and be continuing. The Borrower will not permit (1) any Guarantor to consolidate or merge with or into any other Person unless the Guarantor is the surviving entity, (2) any Subsidiary of any Guarantor to consolidate or merge with or into any other Person unless, immediately after giving effect to such consolidation or merger, none of the Guaranty Coverage Percentages is less than the Required Percentage, (3) any Guarantor to sell, lease or otherwise transfer all or substantially all of its assets to any other Person, or (4) any Subsidiary of any Guarantor to sell, lease or otherwise transfer all or substantially all of its assets to another Person unless, immediately after giving effect to such sale, lease or other transfer, none of the Guaranty Coverage Percentages is less than the Required Percentage." (17) Section 5.7 is amended and restated in its entirety to read as follows:

Consolidations, Mergers and Sales of Assets. The Such Borrower will not (i) consolidate or merge with or into any Person, (ii) sell, lease or otherwise transfer all or substantially all of its assets to any other Person, or (iii) sell, transfer or otherwise dispose of its interest in any Guarantor; provided that (x) the Borrower may merge with any Wholly-Owned Consolidated Subsidiary (other than a Guarantor or a Subsidiary of a Guarantor) if immediately after such merger no Default shall have occurred and be continuing and such Wholly-Owned Consolidated Subsidiary shall expressly assume in writing all of the obligations of the Borrower hereunder, and under the Notes (if any), and (y) the Borrower may merge with any other Person (other than a Guarantor or a Subsidiary of a Guarantor) if (A) the Borrower is the corporation surviving such merger and (B) immediately after giving effect to such merger, no Default shall have occurred and be continuing. The Borrower will not permit (1) any Guarantor to consolidate or merge with or into any other Person unless the Guarantor is the surviving or reorganize its assets into a non-series entity, (2) any Subsidiary of any Guarantor to consolidate or merge with or into any other Person unless, immediately after giving effect to nor will such consolidation or merger, none of the Guaranty Coverage Percentages is less than the Required Percentage, (3) any Guarantor to Borrower sell, lease lease, or otherwise transfer transfer, directly or indirectly, all or substantially all any substantial part of its assets to any other PersonPerson except that: (a) such Borrower may sell its assets in the ordinary course of business as described in its Prospectus; (b) such Borrower may merge, consolidate, or reorganize its assets with another Fund, another fund of the applicable Investment Company, or a fund of an Affiliate of the applicable Investment Company, provided that (4i) such Borrower shall be the surviving entity, and (ii) such Borrower shall notify Lenders in writing of its intention to so consolidate, merge, or reorganize no later than 15 days prior to the date of the proposed consolidation, merger, or reorganization; and (c) such Borrower may consolidate, merge, or reorganize its assets with or into any Subsidiary of other entity, liquidate its assets, or transfer any Guarantor to sell, lease or otherwise transfer all or substantially all of its assets to another Person unlessany other entity, immediately after giving PROVIDED THAT, in each case, (i) such Borrower shall notify Lenders in writing of its intention to so consolidate, merge, reorganize, liquidate, or transfer its assets no later than 15 days prior to the date of such proposed consolidation, merger, reorganization, liquidation, or transfer, ALONG with a revised SCHEDULE 2 which gives effect to such saleconsolidation, lease merger, reorganization, liquidation, or other transfer, none (ii) all Obligations of such Borrower shall have been paid in full on or prior to the Guaranty Coverage Percentages is less than date of such consolidation, merger, reorganization, liquidation, or transfer, and(iii) from and after the Required Percentagedate of such consolidation, merger, reorganization, liquidation, or transfer such Borrower shall no longer be a Borrower under this Agreement and such Borrower shall no longer be permitted to request any Borrowing. Such Borrower will not invest all of its investable assets in any other open-end management investment company or otherwise employ a master-feeder or fund of funds investment structure or any other multiple investment company structure, except to the extent permissible under the Investment Company Act and consistent with such Borrower's investment objectives and fundamental and operating investment restrictions." (17) Section 5.7 is amended and restated in its entirety to read as follows:

Consolidations, Mergers and Sales of Assets. The Borrower will not (i) consolidate or merge with or into any Personother Person or reorganize its assets into a non-series entity, (ii) nor will the Borrower sell, lease or otherwise transfer, directly or indirectly, all or any substantial part of its assets to any other Person except that: (a) the Borrower may sell its assets in the ordinary course of business as described in its Prospectus; (b) the Borrower may merge, consolidate or reorganize with or into any other Borrower, or sell or otherwise transfer all or any substantial part of its assets to any other Borrower provided that, in each such case, the Borrower shall notify the Banks in writing of its intention to so consolidate, merge or reorganize with or into, or sell or transfer its assets to, such other Borrower no later than fifteen (15) days prior to the date of the proposed consolidation, merger, reorganization, sale or transfer; and (c) the Borrower may merge, consolidate, or reorganize its assets with or into any other entity, liquidate its assets, or sell or otherwise transfer all or any substantial part of its assets to any other entity, provided that, in each case: (i) the Borrower shall notify the Banks in writing of its intention to so consolidate, merge, reorganize, liquidate, sell or otherwise transfer its assets no later than fifteen (15) days prior to the date of such proposed consolidation, merger, reorganization, liquidation, sale or transfer; (ii) if the Borrower shall liquidate its assets then (1) the Borrower shall deliver to the Banks a revised Schedule 2 hereto which gives effect to such liquidation, (2) all Obligations of such Borrower shall have been paid in full on or prior to the date of such liquidation and (3) from and after the date of liquidation, such Borrower shall no longer be a Borrower under this Agreement and such Borrower shall no longer be permitted to request any Borrowing; and (iii) if the Borrower shall merge, consolidate or reorganize its assets with or into any other entity and the Borrower shall not be the surviving entity of such merger, consolidation or reorganization, or if the Borrower shall sell or transfer all or substantially all of its assets to any other Personentity, then, unless the surviving entity of such merger, consolidation or (iii) sell, transfer reorganization or the entity to which the Borrower shall have sold or otherwise dispose transferred all or any substantial part of its interest assets shall have become a party to this Credit Agreement and the other Loan Documents in any Guarantor; provided that accordance with Section 3.01(b) hereof, (x1) the Borrower may merge with any Wholly-Owned Consolidated Subsidiary (other than shall deliver to the Banks a Guarantor or a Subsidiary of a Guarantor) if immediately after such merger no Default shall have occurred and be continuing and such Wholly-Owned Consolidated Subsidiary shall expressly assume in writing all of the obligations of the Borrower hereunder, and under the Notes (if any), and (y) the Borrower may merge with any other Person (other than a Guarantor or a Subsidiary of a Guarantor) if (A) the Borrower is the corporation surviving such merger and (B) immediately after giving revised Schedule 2 hereto which gives effect to such consolidation, merger, no Default reorganization, liquidation, sale or transfer, (2) all Obligations of such Borrower shall have occurred been paid in full on or prior to the date of such consolidation, merger, reorganization, liquidation, sale or transfer and (3) from and after the date of such consolidation, merger, reorganization, liquidation, sale or transfer such Borrower shall no longer be continuinga Borrower under this Agreement and such Borrower shall no longer be permitted to request any Borrowing. The Borrower will not permit (1) any Guarantor to consolidate or merge with or into any other Person unless the Guarantor is the surviving entity, (2) any Subsidiary of any Guarantor to consolidate or merge with or into any other Person unless, immediately after giving effect to such consolidation or merger, none of the Guaranty Coverage Percentages is less than the Required Percentage, (3) any Guarantor to sell, lease or otherwise transfer all or substantially invest all of its investable assets to in any other Person, or (4) any Subsidiary of any Guarantor to sell, lease open-end management investment company or otherwise transfer all act as a feeder fund in a master-feeder or substantially all fund of its assets to another Person unless, immediately after giving effect to such sale, lease funds investment structure or any other transfer, none of the Guaranty Coverage Percentages is less than the Required Percentagemultiple investment company structure." (17) Section 5.7 is amended and restated in its entirety to read as follows:

Consolidations, Mergers and Sales of Assets. The No Borrower will not (i) consolidate or merge with or into any Person, (ii) sell, lease or otherwise transfer all or substantially all of its assets to any other Personwill, or will permit any Subsidiary to, directly or indirectly (iiia) sell, transfer or otherwise dispose of its interest in any Guarantor; provided that (x) the Borrower may merge with any Wholly-Owned Consolidated Subsidiary (other than a Guarantor or a Subsidiary of a Guarantor) if immediately after such merger no Default shall have occurred and be continuing and such Wholly-Owned Consolidated Subsidiary shall expressly assume in writing all of the obligations of the Borrower hereunder, and under the Notes (if any), and (y) the Borrower may merge with any other Person (other than a Guarantor or a Subsidiary of a Guarantor) if (A) the Borrower is the corporation surviving such merger and (B) immediately after giving effect to such merger, no Default shall have occurred and be continuing. The Borrower will not permit (1) any Guarantor to consolidate or merge with or into any other Person unless the Guarantor Borrower or a wholly-owned Subsidiary of Borrower is the surviving entity, or (2b) sell, lease, license or otherwise transfer, directly or indirectly, any Subsidiary portion of any Guarantor to consolidate the Collateral except that discounts in connection with settlements or merge with compromises thereof in the ordinary course of business shall be permitted, (c) sell, lease, license or into otherwise transfer, directly or indirectly, any other Person unlessassets of Borrower or its Subsidiaries, immediately if, after giving effect to such consolidation Asset Disposition any Default or mergerEvent of Default would result from such Asset Disposition, none provided, that: (i) Capital expenditures by Borrower and the Subsidiaries shall be permitted; (ii) (a) asset sales of used, negligible, worn out, uneconomical, obsolete or surplus property by Borrower and its Subsidiaries in the ordinary course of business and the abandonment or other asset sale of Intellectual Property that is, in the reasonable judgment of Borrower or its applicable Subsidiary, no longer economically practicable to maintain or useful in the conduct of the Guaranty Coverage Percentages is less than business of Borrower or its applicable Subsidiary shall be permitted and (b) the Required Percentage, (3) any Guarantor to sellsale, lease or otherwise transfer all or substantially all of its assets to any other Person, or (4) any Subsidiary disposal of any Guarantor to sellassets shall be permitted, lease or otherwise transfer all or substantially all of its assets to another Person unlessso long as, immediately after giving effect to such saleAsset Disposition, lease or other transfer, none no Event of the Guaranty Coverage Percentages is less than the Required Percentage."Default would result from such Asset Disposition; (17iii) Section 5.7 is amended Permitted Investments may be made to the extent permitted by this Agreement; (iv) Borrower and restated its Subsidiaries may sell cash equivalents and use cash for purposes that are not prohibited by the terms of this Agreement in the ordinary course of business; (v) Borrower and its entirety Subsidiaries may lease (as lessee or lessor) real or personal property and may guaranty such lease, in each case, in the ordinary course of business; (vi) any Credit Party may transfer property or lease to read or acquire or lease property from any Credit Party; (vii) asset sales by any Credit Party to any other Credit Party shall be permitted; (viii) sales of non-core assets owned by the targets of permitted acquisitions and acquired as follows:a result of such permitted acquisitions shall be permitted; and (ix) issuance of capital stock of or to Borrower (including warrants or options or similar interests) shall be permitted.

Consolidations, Mergers and Sales of Assets. The Borrower will not (i) not, nor will the Borrower permit any Subsidiary to, consolidate or merge with or into any Personinto, (ii) or sell, lease or otherwise transfer all or substantially all any substantial part of its assets to to, any other Person, or (iii) sell, transfer or otherwise dispose of its interest in any Guarantor; provided that (xa) the Borrower may merge with any Wholly-Owned Consolidated Subsidiary another Person if (other than a Guarantor or a Subsidiary of a Guarantori) if immediately after such merger no Default shall have occurred and be continuing and such Wholly-Owned Consolidated Subsidiary shall expressly assume in writing all Person was organized under the laws of the obligations United States of the Borrower hereunderAmerica or one of its states, and under the Notes (if any), and (y) the Borrower may merge with any other Person (other than a Guarantor or a Subsidiary of a Guarantor) if (Aii) the Borrower is the corporation surviving such merger and (Biii) immediately after giving effect to such merger, no Default shall have occurred and be continuing. The , (b) Subsidiaries of the Borrower will not permit (1) any Guarantor to consolidate or may merge with and into the Borrower, any other Subsidiary, or into any other Person unless the Guarantor is the surviving entity, (2) any Subsidiary of any Guarantor to consolidate or merge with or into any other Person unless, immediately if after giving effect thereto such other Person would be a Subsidiary, (c) assets may be transferred from a Subsidiary to the Borrower or another Subsidiary, (d) any Wholly-Owned Subsidiary may dissolve or liquidate so long as the assets of such Subsidiary at the time of such dissolution or liquidation are transferred to such consolidation or merger, none Subsidiary's shareholder and such shareholder assumes all of the Guaranty Coverage Percentages is less than liabilities of such Subsidiary at the Required Percentagetime of such dissolution or liquidation, (3e) any Guarantor to sellthe Borrower and its Subsidiaries may factor receivables, lease or otherwise transfer all or substantially all of (f) the Borrower and its assets to any other PersonSubsidiaries may effect Asset Securitizations, or and (4g) any Subsidiary of any Guarantor to sell, lease or otherwise transfer all or substantially all of its assets to another Person unless, immediately after giving effect to such the foregoing limitation on the sale, lease or other transfertransfer of assets shall not prohibit, none during any Fiscal Quarter, a transfer of assets by the Borrower or any Subsidiary (in a single transaction or in a series of related transactions) unless (x) the proceeds thereof are not reinvested within 180 days thereafter in a Permitted Line of Business owned by the Borrower or such Subsidiary or (y) the aggregate assets to be so transferred or utilized in a business line or segment to be so discontinued, when combined with all other assets transferred, and all other assets utilized in all other business lines or segments discontinued, during such Fiscal Quarter and the immediately preceding three Fiscal Quarters, constituted more than 20% of Consolidated Total Assets at the end of the Guaranty Coverage Percentages is less than the Required Percentagefourth Fiscal Quarter immediately preceding such Fiscal Quarter." (17) Section 5.7 is amended and restated in its entirety to read as follows:

Consolidations, Mergers and Sales of Assets. The Borrower will not (i) not, nor will the Borrower permit any Subsidiary to, consolidate or merge with or into any Personinto, (ii) or sell, lease or otherwise transfer all or substantially all any substantial part of its assets to to, any other Person, or (iii) sell, transfer or otherwise dispose of its interest in any Guarantor; provided that (xa) the Borrower may merge with any Wholly-Owned Consolidated Subsidiary another Person if (other than a Guarantor or a Subsidiary of a Guarantori) if immediately after such merger no Default shall have occurred and be continuing and such Wholly-Owned Consolidated Subsidiary shall expressly assume in writing all Person was organized under the laws of the obligations United States of the Borrower hereunderAmerica or one of its states, and under the Notes (if any), and (y) the Borrower may merge with any other Person (other than a Guarantor or a Subsidiary of a Guarantor) if (Aii) the Borrower is the corporation surviving such merger and (Biii) immediately after giving effect to such merger, no Default shall have occurred and be continuing. The ; (b) Subsidiaries of the Borrower will not permit (1) any Guarantor to consolidate or may merge with and into the Borrower, any other Subsidiary, or into any other Person unless the Guarantor is the surviving entity, (2) any Subsidiary of any Guarantor to consolidate or merge with or into any other Person unless, immediately if after giving effect thereto such other Person would be a Subsidiary; (c) assets may be transferred from a Subsidiary to the Borrower or another Subsidiary; (d) any Wholly-Owned Subsidiary may dissolve or liquidate so long as the assets of such Subsidiary at the time of such dissolution or liquidation are transferred to such consolidation or merger, none Subsidiary’s shareholder and such shareholder assumes all of the Guaranty Coverage Percentages is less than liabilities of such Subsidiary at the Required Percentage, time of such dissolution or liquidation; (3e) any Guarantor to the Borrower and its Subsidiaries may factor receivables; (f) the Borrower and its Subsidiaries may effect Asset Securitizations; (g) the Borrower and its Subsidiaries may sell, lease transfer or otherwise dispose of assets (regardless of whether such disposition takes the form of a merger or liquidation of a Subsidiary) if the proceeds thereof are reinvested within 180 days thereafter in a Permitted Line of Business owned by the Borrower or such Subsidiary; and (h) the Borrower and its Subsidiaries may sell, transfer all or substantially all otherwise dispose of its additional assets (regardless of whether such disposition takes the form of a merger or liquidation of a Subsidiary) not otherwise permitted pursuant to this Section; provided that the aggregate book value of such assets to any other Personbe sold, or (4) any Subsidiary of any Guarantor to sell, lease transferred or otherwise transfer disposed of, when combined with all other assets sold, transferred or substantially all otherwise disposed of its assets during the applicable Fiscal Quarter and the immediately preceding three Fiscal Quarters (excluding those asset sales otherwise permitted pursuant to another Person unlessthis Section), immediately after giving effect to such sale, lease or other transfer, none do not constitute more than 20% of Consolidated Tangible Assets at the end of the Guaranty Coverage Percentages is less than the Required Percentagefourth Fiscal Quarter immediately preceding such Fiscal Quarter." (17) Section 5.7 is amended and restated in its entirety to read as follows:

Consolidations, Mergers and Sales of Assets. The Borrower will shall not (i) merge or consolidate with, or merge with sell or into any Person, (ii) sell, lease or otherwise transfer all or substantially all of its property and assets to, any Person, except that nothing herein shall prevent any consolidation or merger of the Borrower with or into any other corporation organized under the laws of the United States or any state thereof which is (w) Sears, (x) a Wholly-Owned Subsidiary of Sears, (y) a corporation of which Sears is a Wholly-Owned Subsidiary or (z) a Wholly-Owned Subsidiary of a corporation described in clause (y) above, or any consolidation or merger of any other such corporation with or into the Borrower, or any sale or transfer of all or substantially all of the property and assets of the Borrower to any other Personsuch corporation lawfully entitled to acquire the same; provided, or (iii) sell, transfer or otherwise dispose of its interest in any Guarantor; provided that (x) the Borrower may merge with any Wholly-Owned Consolidated Subsidiary (other than a Guarantor or a Subsidiary of a Guarantor) if immediately after such merger no Default shall have occurred and be continuing and such Wholly-Owned Consolidated Subsidiary shall expressly assume in writing all of the obligations of the Borrower hereunder, and under the Notes (if any), and (y) the Borrower may merge with any other Person (other than a Guarantor or a Subsidiary of a Guarantor) if (A) the Borrower is the corporation surviving such merger and (Bi) immediately after giving effect to such consolidation, merger, sale or transfer, no Designated Default shall have occurred and be continuing. The ; and (ii) the Borrower will not permit covenants that any such consolidation, merger, sale or transfer shall be upon the conditions that the due and punctual payment of the principal and accrued interest on the Notes, and the due and punctual performance and observance of all the terms, covenants and conditions of this Agreement to be kept or performed by the Borrower shall, by an agreement supplemental hereto, be assumed by the corporation (1other than the Borrower) formed by or resulting from any Guarantor to consolidate or merge with or into any other Person unless the Guarantor is the surviving entity, (2) any Subsidiary of any Guarantor to consolidate or merge with or into any other Person unless, immediately after giving effect to such consolidation or merger, none or which shall have received the transfer of the Guaranty Coverage Percentages is less than the Required Percentage, (3) any Guarantor to sell, lease or otherwise transfer all or substantially all of its the property and assets to any other Personof the Borrower, or (4) any Subsidiary just as fully and effectually as if such successor had been the original Borrower; and in the event of any Guarantor to sellsuch sale or transfer the predecessor Borrower may be dissolved, lease or otherwise transfer all or substantially all of its assets to another Person unless, immediately after giving effect to such sale, lease or other transfer, none of the Guaranty Coverage Percentages is less than the Required Percentagewound up and liquidated at any time thereafter." (17) Section 5.7 is amended and restated in its entirety to read as follows:

Consolidations, Mergers and Sales of Assets. (a) The Borrower will shall not (i) consolidate with or merge with into any other corporation or into convey, transfer or lease its properties and assets substantially as an entirety to any Person, (ii) sell, lease or otherwise transfer all or substantially all of its assets to any other Person, or (iii) sell, transfer or otherwise dispose of its interest in any Guarantor; provided that (x) the Borrower may merge with any Wholly-Owned Consolidated Subsidiary (other than a Guarantor or a Subsidiary of a Guarantor) if immediately after such merger no Default shall have occurred and be continuing and such Wholly-Owned Consolidated Subsidiary shall expressly assume in writing all of the obligations of the Borrower hereunder, and under the Notes (if any), and (y) the Borrower may merge with any other Person (other than a Guarantor or a Subsidiary of a Guarantor) if unless: (A) the corporation formed by such consolidation or into which the Borrower is merged or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of the Borrower substantially as an entirety shall be a corporation surviving such merger organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and shall expressly assume, by an agreement supplemental hereto, executed and delivered to the Administrative Agent, in form satisfactory to the Required Banks, the due and punctual payment of the principal of (and premium, if any) and interest on all the Notes and the performance of every covenant of this Agreement on the part of the Borrower to be performed or observed; (B) immediately after giving effect to such mergertransaction, no Default shall have occurred happened and be continuing. The ; and (C) the Borrower will not permit has delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such consolidation, merger, conveyance, transferor lease and supplemental agreement comply with this Section 5.7 and that all conditions precedent herein provided for relating to such transaction have been complied with. (1b) Upon any Guarantor to consolidate or merge consolidation by the Borrower with or merger by the Borrower into any other Person unless corporation or any conveyance, transfer or lease of the Guarantor is properties and assets of the surviving entityBorrower substantially as an entirety in accordance with this Section 5.7, (2) any Subsidiary of any Guarantor to consolidate or merge with or into any other Person unless, immediately after giving effect to the successor corporation formed by such consolidation or mergerinto which the Borrower is merged or to which such conveyance, none transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Borrower under this Agreement with the same effect as if such successor corporation had been named as the Borrower herein, and thereafter, except in the case of a lease, the Guaranty Coverage Percentages is less than predecessor corporation shall be relieved of all obligations and covenants under this Agreement and the Required Percentage, Notes. (3c) The Borrower shall not transfer any Guarantor Principal Property to sell, lease any one or otherwise transfer all or substantially all more of its assets to any other PersonSubsidiaries, whether now existing or (4) any Subsidiary of any Guarantor to sell, lease or otherwise transfer all or substantially all of its assets to another Person unless, immediately after giving effect to such sale, lease or other transfer, none of the Guaranty Coverage Percentages is less than the Required Percentagehereafter acquired." (17) Section 5.7 is amended and restated in its entirety to read as follows:

Consolidations, Mergers and Sales of Assets. The (a) Neither the Borrower nor any Subsidiary will not (i) consolidate or merge with or into any Person, (ii) sell, lease or otherwise transfer all or substantially all of its assets to any other Person, or (iii) sell, transfer or otherwise dispose of its interest in any Guarantor; provided that (x) the Borrower may merge with any Wholly-Owned Consolidated Subsidiary (other than a Guarantor or a Subsidiary of a Guarantor) if immediately after such merger no Default shall have occurred and be continuing and such Wholly-Owned Consolidated Subsidiary shall expressly assume in writing all of the obligations of the Borrower hereunder, and under the Notes (if any), and (y) the Borrower may merge with any other Person (other than a Guarantor or a Subsidiary of a Guarantor) if unless (A) the Borrower is the corporation surviving such merger or, in the case of any Subsidiary consolidating or merging with a Person other than the Borrower, the surviving entity is a Subsidiary, and (B) immediately after giving effect to such merger, no Default or Event of Default shall have occurred and be continuing. . (b) Other than sales of inventory and worn or obsolete equipment in the ordinary course of business, the Borrower will not, and will not permit any Subsidiary to, sell, lease (as lessor) or otherwise transfer, directly or indirectly, any property, unless the aggregate book value of such property as shown by the accounting books and records of the Borrower, together with the aggregate book value of all other property as shown by the accounting books and records of the Borrower (including the aggregate book value of all property which is sold by the Borrower or any Subsidiary in Sale and Leaseback Transactions less the Capitalized Lease Obligations arising therefrom) sold, leased or otherwise transferred pursuant to this subsection (b) after the Effective Date, does not exceed 20% of total consolidated assets of the Borrower and its Subsidiaries determined as of the most recently ended Fiscal Quarter from a consolidated balance sheet of the Borrower prepared in accordance with GAAP. (c) The Borrower will not, and will not permit any Subsidiary to, sell, transfer or otherwise dispose of the capital stock or other equity interests of its respective Subsidiaries (1other than intra-company transfers among Subsidiaries, in the ordinary course of business for tax purposes, provided such transactions would not have a Material Adverse Effect) any Guarantor to consolidate or merge with or into any other Person (a “Permitted Disposition”) unless the Guarantor is Borrower shall have delivered to the surviving entityAdministrative Agent on the date of the consummation of such Permitted Disposition an officer’s certificate executed by an authorized officer of the Borrower, which certificate shall (2x) any Subsidiary certify that no Default or Event of any Guarantor to consolidate or merge with or into any other Person unless, immediately Default shall have occurred and be continuing before and after giving effect to such consolidation or mergerPermitted Disposition and (y) demonstrate that at the time of such Permitted Disposition the Capitalization Ratio, none calculated on a pro forma basis as of the Guaranty Coverage Percentages is less than the Required Percentage, (3) any Guarantor to sell, lease or otherwise transfer all or substantially all of its assets to any other Person, or (4) any Subsidiary of any Guarantor to sell, lease or otherwise transfer all or substantially all of its assets to another Person unless, immediately after giving effect to such sale, lease or other transfer, none last day of the Guaranty Coverage Percentages is less Fiscal Quarter ending on or prior to the date such Permitted Disposition as if such Permitted Disposition had occurred on such day, would not have been more than the Required Percentage0.65 to 1.0." (17) Section 5.7 is amended and restated in its entirety to read as follows:

Consolidations, Mergers and Sales of Assets. (a) The Borrower will not not, nor will it permit any Subsidiary Guarantor to, merge or consolidate, or permit any of its Subsidiary Guarantors to merge or consolidate, with any Person, except for (i) consolidate a merger or merge with consolidation between Subsidiary Guarantors of the Borrower or into any Personinvolving only the Borrower and one or more of its Subsidiary Guarantors in which the Borrower is the surviving entity, or (ii) sell, lease a merger or otherwise transfer all or substantially all of its assets to any other Person, or (iii) sell, transfer or otherwise dispose of its interest consolidation in any Guarantor; provided that (x) which Borrower is the surviving entity and such Person merging into the Borrower may merge with any Wholly-Owned Consolidated Subsidiary (other than a Guarantor or a Subsidiary is organized and existing under the laws of a GuarantorState of the United States of America, if (A) if immediately after giving effect to such merger or consolidation, no Default or Event of Default shall have occurred and be continuing and such Wholly-Owned Consolidated Subsidiary shall expressly assume in writing all of the obligations of the Borrower hereundercontinuing, and under the Notes (if any), and (y) the Borrower may merge with any other Person (other than a Guarantor or a Subsidiary of a Guarantor) if (A) the Borrower is the corporation surviving such merger and (B) immediately after giving effect to such mergermerger or consolidation on a pro forma basis (including, no Default shall have occurred without limitation, any Debt incurred or anticipated to be incurred in connection with such merger or consolidation), the Borrower would be able to incur at least $1.00 of additional Debt under SECTION 5.20, and be continuing. The Borrower will not permit (1C) any Guarantor to consolidate or merge with or into any other Person unless the Guarantor is the surviving entity, (2) any Subsidiary of any Guarantor to consolidate or merge with or into any other Person unless, immediately after giving effect to such merger or consolidation on a pro forma basis, the Borrower shall have a Consolidated Tangible Net Worth equal to or mergergreater than its Consolidated Tangible Net Worth immediately prior to such merger or consolidation. (b) The Borrower will not, none of the Guaranty Coverage Percentages is less than the Required Percentagenor will it permit any Subsidiary Guarantor to, (3) any Guarantor to sell, lease or otherwise transfer all or substantially all any part of its assets to (including, without limitation, any sale and leaseback arrangement, but excluding sales of inventory in the ordinary course of business) to, any other Person, other than the Borrower or (4) a Subsidiary Guarantor, or discontinue or eliminate any Subsidiary of any Guarantor to sellbusiness line or segment, lease or otherwise transfer all or substantially all of its assets to another Person unless, immediately after giving effect to such provided that the foregoing limitation on the sale, lease or other transfertransfer of assets and on the discontinuation or elimination of a business line or segment shall not prohibit the transfer of obsolete inventory to ICON International Inc. under a barter arrangement, none and shall not prohibit any of the Guaranty Coverage Percentages is less than following transactions so long as the Required Percentage."Net Cash Proceeds thereof are deposited in the Collateral Reserve Account: (17i) so long as no Default or Event of Default shall have occurred and be continuing, or would be caused thereby and subject to the provisions of SECTION 2.10(c), the dispositions of assets related to the product lines for Meters, circuit protection, Zinco breakers, and enclosures; (ii) so long as no Default or Event of Default shall have occurred and be continuing, dispositions of Equipment Collateral subject to the provisions of SECTION 5.29; (iii) so long as no Default or Event of Default shall have occurred and be continuing, or would be caused thereby, the sale of Leviton; (iv) so long as the Securitization Intercreditor Agreement remains in effect and no Event of Default under Section 5.7 is amended 6.01(a) or (q) shall have occurred and restated be continuing, the continued sale or assignment of Accounts Receivable in connection with the Securitization Facility; and (v) so long as no Default or Event of Default shall have occurred and be continuing, or would be caused thereby, the transfer by Thomas & Betts International, Inc. of its entirety to read as follows:interests in Sxxxxxxarixx xxich are not Domestic Subsidiaries.

Consolidations, Mergers and Sales of Assets. The ------------------------------------------- Borrower will not (i) not, nor will the Borrower permit any Subsidiary to, consolidate or merge with or into any Personinto, (ii) or sell, lease or otherwise transfer all or substantially all any substantial part of its assets to to, any other Person, or (iii) sell, transfer or otherwise dispose of its interest in any Guarantor; provided that (xa) the -------- Borrower may merge with any Wholly-Owned Consolidated Subsidiary another Person if (other than a Guarantor or a Subsidiary of a Guarantori) if immediately after such merger no Default shall have occurred and be continuing and such Wholly-Owned Consolidated Subsidiary shall expressly assume in writing all Person was organized under the laws of the obligations United States of the Borrower hereunderAmerica or one of its states, and under the Notes (if any), and (y) the Borrower may merge with any other Person (other than a Guarantor or a Subsidiary of a Guarantor) if (Aii) the Borrower is the corporation surviving such merger and (Biii) immediately after giving effect to such merger, no Default shall have occurred and be continuing. The , (b) Subsidiaries of the Borrower will not permit (1) any Guarantor to consolidate or may merge with and into the Borrower, any other Subsidiary, or into any other Person unless the Guarantor is the surviving entity, (2) any Subsidiary of any Guarantor to consolidate or merge with or into any other Person unless, immediately if after giving effect thereto such other Person would be a Subsidiary, (c) assets may be transferred from a Subsidiary to the Borrower or another Subsidiary, (d) any Wholly-Owned Subsidiary may dissolve or liquidate so long as the assets of such Subsidiary at the time of such dissolution or liquidation are transferred to such consolidation or merger, none Subsidiary's shareholder and such shareholder assumes all of the Guaranty Coverage Percentages is less than liabilities of such Subsidiary at the Required Percentagetime of such dissolution or liquidation, (3e) any Guarantor to sellthe Borrower and its Subsidiaries may factor receivables, lease or otherwise transfer all or substantially all of and (f) the Borrower and its assets to any other Person, or Subsidiaries may effect Asset Securitizations; (4g) any Subsidiary of any Guarantor to sell, lease or otherwise transfer all or substantially all of its assets to another Person unless, immediately after giving effect to such the foregoing limitation on the sale, lease or other transfertransfer of assets shall not prohibit, none during any Fiscal Quarter, a transfer of assets by the Borrower or any Subsidiary (in a single transaction or in a series of related transactions) unless (x) the proceeds thereof are not reinvested within 180 days thereafter in a Permitted Line of Business owned by the Borrower or such Subsidiary or (y) the aggregate assets to be so transferred or utilized in a business line or segment to be so discontinued, when combined with all other assets transferred, and all other assets utilized in all other business lines or segments discontinued, during such Fiscal Quarter and the immediately preceding three Fiscal Quarters, constituted more than 20% of Consolidated Total Assets at the end of the Guaranty Coverage Percentages is less than the Required Percentagefourth Fiscal Quarter immediately preceding such Fiscal Quarter." (17) Section 5.7 is amended and restated in its entirety to read as follows:

Consolidations, Mergers and Sales of Assets. The Borrower will not (i) not, nor will it permit any Subsidiary to, consolidate or merge with or into any Personinto, (ii) or sell, lease or otherwise transfer all or substantially all any substantial part of its assets to to, any other Person, or (iii) selldiscontinue or eliminate any business line or segment, transfer or otherwise dispose of its interest in any Guarantor; provided that (xa) the Borrower or a Subsidiary may merge with any Wholly-Owned Consolidated Subsidiary another Person if (other than a Guarantor or a Subsidiary of a Guarantor) if immediately after such merger no Default shall have occurred and be continuing and such Wholly-Owned Consolidated Subsidiary shall expressly assume in writing all of the obligations of the Borrower hereunder, and under the Notes (if any), and (yi) the Borrower may merge with any other Person (other than a Guarantor or a such Subsidiary of a Guarantor) if (A) the Borrower is the corporation surviving such merger, or if such Subsidiary would not be the surviving Person, the surviving Person would be a Subsidiary of the Borrower (provided that if the Subsidiary party to such merger is a Domestic Subsidiary, then the entity surviving such merger must be a Domestic Subsidiary), and (Bii) immediately after giving effect to such merger, no Default shall have occurred and be continuing. The , (b) Subsidiaries of the Borrower will not permit (1) any Guarantor to consolidate or may merge with or into any other Person unless one another (provided that if the Guarantor is the surviving entity, (2) any Subsidiary of any Guarantor to consolidate or merge with or into any other Person unless, immediately after giving effect party to such consolidation or mergermerger is a Domestic Subsidiary, none of then the Guaranty Coverage Percentages is less than the Required Percentage, (3) any Guarantor to sell, lease or otherwise transfer all or substantially all of its assets to any other Personentity surviving such merger must be a Domestic Subsidiary), or (4as long as the Borrower is the corporation surviving such merger) any Subsidiary of any Guarantor to sellwith the Borrower, lease or otherwise transfer all or substantially all of its assets to another Person unless, immediately after giving effect to such and (c) the foregoing limitation on the sale, lease or other transfertransfer of assets and on the discontinuation or elimination of a business line or segment shall not prohibit (1) the sale of Receivables pursuant to the Receivables Securitization Program, none (2) the sale of finished goods in the ordinary course of business, (3) sales, leases or other transfers of assets by the Borrower to a Guarantor or by any Subsidiary to the Borrower or a Guarantor, (4) any transfer of assets that would be an Investment permitted by Section 6.06, or (5) during any Fiscal Quarter, sales, leases or other transfers of assets or the discontinuance or elimination of a business line or segment (in a single transaction or in a series of related transactions) unless the aggregate assets to be so sold, leased or transferred or utilized in a business line or segment to be so discontinued, when combined with all other assets sold, leased or transferred, and all other assets utilized in all other business lines or segments discontinued, during such Fiscal Quarter and the immediately preceding 3 Fiscal Quarters, either (x) constituted more than 10% of Consolidated Total Assets at the end of the Guaranty Coverage Percentages is less most recent Fiscal Year immediately preceding such Fiscal Quarter, or (y) contributed more than 10% of Consolidated Operating Profits during the Required Percentage4 Fiscal Quarters immediately preceding such Fiscal Quarter." (17) Section 5.7 is amended and restated in its entirety to read as follows:

Consolidations, Mergers and Sales of Assets. The Borrower will not, and will not permit any of its Subsidiaries to, enter into any merger, consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution) or convey, sell, lease, assign, transfer or otherwise dispose of, all or substantially all of its property, business or assets, or make any material change in the present method of conducting business, except that (i) consolidate any Subsidiary may be merged into the Borrower (providing that the Borrower shall be the surviving corporation) or merge merged or consolidated with or into any Personone or more other Subsidiaries, (ii) any Subsidiary may sell, lease, transfer or otherwise dispose of any of its assets to the Borrower or a wholly-owned Subsidiary of the Borrower, and (iii) the Borrower may be merged or consolidated with any other Person; provided that the Borrower is the surviving corporation and no Default would occur hereunder after giving effect thereto; and provided further, that none of the Borrower, the Guarantor, or any of the Subsidiaries of Borrower, or any Subsidiaries of such Subsidiaries, shall enter into any merger or consolidation with any Person engaged in the business of real estate development as its primary business. Neither the Borrower nor any of its Subsidiaries shall sell or otherwise dispose of any of its assets except for sales or other dispositions in the ordinary course of business of (x) obsolete or worn out property, or (y) other property; provided that the aggregate book value of such other property so sold or disposed of in any twelve month period (exclusive of sales and dispositions pursuant to the following proviso) shall not exceed 10% of the Consolidated Adjusted Total Assets of the Borrower and its Subsidiaries at the beginning of such period; and provided, further, that Turnxx Xxxelopment Corporation and its subsidiaries and Rickenbacker Holdings, Inc., a Delaware corporation, and its subsidiaries may sell, lease or otherwise transfer all real estate assets or substantially all of its assets to any other Person, or (iii) sell, transfer or otherwise dispose of its interest interests therein in any Guarantor; provided that (x) the Borrower may merge with any Whollyarm's-Owned Consolidated Subsidiary (other than a Guarantor or a Subsidiary of a Guarantor) if immediately after such merger no Default shall have occurred and be continuing and such Wholly-Owned Consolidated Subsidiary shall expressly assume in writing all of the obligations of the Borrower hereunder, and under the Notes (if any), and (y) the Borrower may merge with any other Person (other than a Guarantor or a Subsidiary of a Guarantor) if (A) the Borrower is the corporation surviving such merger and (B) immediately after giving effect to such merger, no Default shall have occurred and be continuing. The Borrower will not permit (1) any Guarantor to consolidate or merge with or into any other Person unless the Guarantor is the surviving entity, (2) any Subsidiary of any Guarantor to consolidate or merge with or into any other Person unless, immediately after giving effect to such consolidation or merger, none of the Guaranty Coverage Percentages is less than the Required Percentage, (3) any Guarantor to sell, lease or otherwise transfer all or substantially all of its assets to any other Person, or (4) any Subsidiary of any Guarantor to sell, lease or otherwise transfer all or substantially all of its assets to another Person unless, immediately after giving effect to such sale, lease or other transfer, none of the Guaranty Coverage Percentages is less than the Required Percentagelength transactions." (17) Section 5.7 is amended and restated in its entirety to read as follows:

Consolidations, Mergers and Sales of Assets. The Borrower will not (i) consolidate or merge In the ------------------------------------------- event the Company consolidates with, merges with or into any Personinto, (ii) sell, lease or otherwise transfer sells all or substantially all of its property and assets to any other another Person, and in connection therewith, consideration to the holders of shares of Common Stock in exchange for their shares is (a) not payable solely in cash, each Warrant thereafter shall entitle the holder thereof to receive upon exercise thereof the number of shares of capital stock or other securities or property which the holder of any shares of Common Stock is entitled to receive upon completion of such consolidation, merger or sale of assets ("Merger Consideration") or (iiib) sellpayable solely in cash ("Cash Payment"), transfer or otherwise dispose of its interest in any Guarantor; provided that (x) the Borrower may merge with any Wholly-Owned Consolidated Subsidiary (other than a Guarantor or a Subsidiary of a Guarantor) if immediately after such merger no Default shall have occurred and be continuing and such Wholly-Owned Consolidated Subsidiary shall expressly assume in writing all event of the obligations dissolution, liquidation or winding-up of the Borrower hereunderCompany, then the holders of the Warrants will receive distributions on an equal basis with the holders of shares of Common Stock or other securities issuable upon exercise of the warrants, as if the Warrants had been exercised immediately prior to such event, less the Exercise Price; provided, however, that in the event of that such consolidation, merger -------- ------- or sale of assets constitutes a "Qualified Sale of the Company" (as defined in each of the Indentures), only the holders of Warrants issued and outstanding on the date of such consolidation, merger or sale shall be entitled to the Merger Consideration or Cash Payment, as the case may be; provided, further that if -------- such consolidation, merger or sale does not constitute a Qualified Sale of the Company, the holders of Senior Notes and Convertible Notes who are entitled, under certain circumstances, to receive Senior Note Contingent Warrants or Convertible Note Contingent Warrants, respectively, shall not receive the Merger Consideration or Cash Payment, as the case may be, on the date other Initial Warrant holders are entitled to receive the Merger Consideration or Cash Payment, as the case may be, until (i) March 30, 1998 with respect to the Senior Note Contingent Warrants, but only if the holders of Senior Notes would have been entitled to receive the Senior Note Contingent Warrants on such date or (ii) September 30, 1999 with respect to the Convertible Note Contingent Warrants, but only if the holders of Convertible Notes would have been entitled to receive the Convertible Note Contingent Warrants on such date. Upon receipt of such Cash Payment, if any), the Warrants will expire and (y) the Borrower may merge with rights of the holders thereof will cease. In the event the Company is required pursuant to the provisions of this Section 14 to make a Cash Payment as a result of any other Person (other than a Guarantor or a Subsidiary of a Guarantor) if (A) the Borrower is the corporation surviving such merger and (B) immediately after giving effect to such merger, no Default shall have occurred and be continuing. The Borrower will not permit (1) any Guarantor to consolidate consolidation or merge with or into any other Person unless the Guarantor is sale of assets, the surviving entityor acquiring Person, (2) any Subsidiary and in the event of any Guarantor dissolution, liquidation or winding-up of the Company, the Company, shall deposit promptly with the Warrant Agent the funds, if any, necessary to consolidate or merge with or into any other Person unlesspay the holders of the Warrants. After such funds and the surrendered Warrant Certificate are received, immediately after giving effect the Warrant Agent shall make payment by delivering a check in such amount as is appropriate to such consolidation Person or merger, none of Persons as it may be directed in writing by the Guaranty Coverage Percentages is less than the Required Percentage, (3) any Guarantor to sell, lease or otherwise transfer all or substantially all of its assets to any other Person, or (4) any Subsidiary of any Guarantor to sell, lease or otherwise transfer all or substantially all of its assets to another Person unless, immediately after giving effect to holders surrendering such sale, lease or other transfer, none of the Guaranty Coverage Percentages is less than the Required PercentageWarrants." (17) Section 5.7 is amended and restated in its entirety to read as follows:

Consolidations, Mergers and Sales of Assets. The Neither the ------------------------------------------- Borrower nor any of the Guarantors will not (i) consolidate or merge with or into any Person, (ii) sell, lease or otherwise transfer all or substantially all of its assets to any other Personinto, or acquire all or (iii) sell, transfer or otherwise dispose of its interest in any Guarantor; provided that (xi) the Borrower may merge with any Wholly-Owned Consolidated Subsidiary another Person if (other than a Guarantor or a Subsidiary of a Guarantorx) if immediately after such merger no Default shall have occurred and be continuing and such Wholly-Owned Consolidated Subsidiary shall expressly assume in writing all Person was organized under the laws of the obligations United States of the Borrower hereunderAmerica or one of its states, and under the Notes (if any), and (y) the Borrower may merge with any other Person (other than a Guarantor or a Subsidiary of a Guarantor) if (A) the Borrower is the corporation surviving such merger and (Bz) immediately after giving effect to such merger, no Default shall have occurred and be continuing. The Borrower will not permit ; (1ii) any Guarantor to consolidate or Guarantors may merge with or into any other Person unless one another, and the Guarantor is the surviving entity, (2) any Subsidiary of any Guarantor to consolidate or merge with or into any other Person unless, immediately after giving effect to such consolidation or merger, none of the Guaranty Coverage Percentages is less than the Required Percentage, (3) any Guarantor to Guarantors may sell, lease or otherwise transfer assets to the Borrower; (iii) the foregoing limitation on the acquisition of all or substantially all the assets or stock of another Person shall not prohibit, during any Fiscal Quarter, the acquisition of all or substantially all of its the assets to any other Person, or (4) any Subsidiary stock of any Guarantor to sell, lease another Person unless the aggregate assets or otherwise transfer stock acquired in a single acquisition or series of related acquisitions of all or substantially all of its the assets to or stock of another Person unless, by the Borrower and the Guarantors during such Fiscal Quarter constituted more than 20% of Gross Asset Value at the end of the most recent Fiscal Quarter immediately after giving effect to preceding such Fiscal Quarter; and (iv) the foregoing limitation on the sale, lease or other transfer of assets shall not prohibit, during any Fiscal Quarter, a transfer of assets (in a single transaction or in a series of related transactions) unless the aggregate assets to be so transferred, when combined with all other assets transferred, by the Borrower and the Guarantors during such Fiscal Quarter and the immediately preceding 3 Fiscal Quarters, constituted more than 20% of Gross Asset Value at the end of the most recent Fiscal Quarter immediately preceding such Fiscal Quarter. In the case of any Guarantor which transfers substantially all of its assets pursuant to clause (iv) of the preceding sentence, and in the case of any Guarantor the stock of which is being sold and with respect to which clause (iv) would have been satisfied if the transaction had been a sale of assets of such Guarantor, such Guarantor may dissolve and shall be entitled to obtain from the Agent a written release from the Guaranty, provided that it can demonstrate to -------- the reasonable satisfaction of the Agent that (A) it has repaid in full all Debt owed to the Borrower or any other Guarantor and (B) such sale was for cash and in the case of an asset transfer, none the net cash proceeds received in connection therewith are being distributed to the Borrower as part of the Guaranty Coverage Percentages is less than the Required Percentagesuch dissolution, and upon obtaining such written release, it shall no longer be a Guarantor for any purpose hereunder." (17) Section 5.7 is amended and restated in its entirety to read as follows:

Consolidations, Mergers and Sales of Assets. The Borrower Neither Concord nor any Ten Percent Subsidiary will not (i) consolidate or merge with or into any Person, other Person or (ii) sell, lease or otherwise transfer transfer, directly or indirectly, all or substantially all any substantial part of the assets of Concord or such Ten Percent Subsidiary, as the case may be, and its assets Subsidiaries, taken as a whole, to any other Person, nor will Concord or (iii) sell, transfer or otherwise dispose any Ten Percent Subsidiary permit any of its interest Subsidiaries to do any of the foregoing if the effect thereof is to reduce the total assets or net income of Concord or such Ten Percent Subsidiary (in any Guarantoreach case, on a consolidated basis for Concord or such Ten Percent Subsidiary, as the case may be, and its Subsidiaries) by more than 25% of such assets existing on, or net income generated during the four consecutive fiscal quarters ending immediately prior to, the date of such consolidation, merger, sale, lease or other transfer; provided that Concord or such Ten Percent Subsidiary, as the case may be, may merge with another Person if (x) Concord or such Ten Percent Subsidiary, as the Borrower case may merge with any Wholly-Owned Consolidated Subsidiary (other than a Guarantor or a Subsidiary of a Guarantor) if immediately after such merger no Default shall have occurred and be continuing and such Wholly-Owned Consolidated Subsidiary shall expressly assume in writing all of the obligations of the Borrower hereunderbe, and under the Notes (if any), and (y) the Borrower may merge with any other Person (other than a Guarantor or a Subsidiary of a Guarantor) if (A) the Borrower is the corporation surviving such merger and (By) immediately after giving effect to such merger, no Default shall have occurred and be continuing; provided, further that any Ten Percent Subsidiary may merge with any other Subsidiary or with Concord, as long as a Ten Percent Subsidiary or Concord is the entity surviving such merger. The Borrower Concord will not transfer ownership, or permit (1) any Guarantor to consolidate the transfer of ownership, of the equity interests in EPS or merge with Star if the effect thereof is that EPS or into any other Person unless Star, as the Guarantor is the surviving entitycase may be, (2) any becomes a Subsidiary of any Guarantor to consolidate national bank or merge with federal savings bank that is a Subsidiary of Concord; in addition, Concord will not transfer ownership, or into permit the transfer of ownership, of the equity interests of any other Person unlessSignificant Subsidiary (other than EPS or Star), immediately after giving effect whether such Significant Subsidiary exists on the date hereof or hereafter arises, to such consolidation a national bank or merger, none of the Guaranty Coverage Percentages federal savings bank that is less than the Required Percentage, (3) any Guarantor to sell, lease or otherwise transfer all or substantially all of its assets to any other Person, or (4) any a Subsidiary of any Guarantor Concord, if the intent of such transfer is to sell, lease or otherwise transfer all or substantially all of its assets circumvent the representations and covenants applicable to another Person unless, immediately after giving effect Significant Subsidiaries in the Operative Documents (as opposed to such sale, lease or other transfer, none of the Guaranty Coverage Percentages is less than the Required Percentagean independent business purpose)." (17) Section 5.7 is amended and restated in its entirety to read as follows:

Consolidations, Mergers and Sales of Assets. The No Borrower will, nor will not (i) it permit any of its Material Subsidiaries to, consolidate or merge with or into into, or effect any PersonAsset Sale to, (ii) sell, lease or otherwise transfer all or substantially all of its assets to any other Person, or discontinue or eliminate any Material Subsidiary or business segment, provided that: (iii) sell, transfer or otherwise dispose of its interest in any Guarantor; provided that (xa) the Borrower may merge with any Wholly-Owned Consolidated Subsidiary (other than a Guarantor or a Subsidiary of a Guarantor) if immediately after such merger no Default shall have occurred and be continuing and such Wholly-Owned Consolidated Subsidiary shall expressly assume in writing all of the obligations of the Borrower hereunder, and under the Notes (if any), and (y) the Borrower may merge with any other another Person (other than a Guarantor or a Subsidiary of a Guarantor) if (Ai) the Borrower is the corporation surviving such merger and (Bii) immediately after giving effect to such merger, no Default or Event of Default shall have occurred and be continuing. The ; (b) Subsidiaries (i) may merge with, and sell assets to, one another and the Borrower, provided that if one of the Persons involved in such merger or sale is a Credit Party, the surviving Person or transferee in any such transaction is a Credit Party, and (ii) may merge with another Person if (x) such Subsidiary is the Person surviving such merger, and (y) no Default or Event of Default shall have occurred and be continuing; (c) the Borrower will and its Subsidiaries may eliminate or discontinue business lines and segments from time to time if such elimination or discontinuance could not permit reasonably be expected to have a Material Adverse Effect; (d) so long as no Event of Default shall then have occurred and be continuing or would result therefrom, the Borrower and its Subsidiaries may effect any Asset Sale so long as the assets to be sold pursuant to all such Asset Sales during any Fiscal Year have not contributed, in the aggregate, more than fifteen percent (15%) of the EBITDA of the Borrower for the then-most recently completed period of four consecutive Fiscal Quarters for which financial statements are available (with the determination of such contribution to EBITDA to be made by the Borrower in a manner reasonably acceptable to the Administrative Agent); provided, however, that in determining the Borrower’s compliance with the foregoing limitation on Asset Sales in any Fiscal Year, the Borrower may deduct from the EBITDA attributable to the assets sold in such Asset Sales, an amount equal to the EBITDA attributable to Permitted Acquisitions made or proposed to be made by the Borrower and its Subsidiaries within 180 days after consummation of the respective Asset Sale and with the proceeds of such Asset Sale (with the determination of the EBITDA attributable to such Permitted Acquisition to be made by the Borrower in a manner reasonably acceptable to the Administrative Agent); and provided, further; that if and to the extent, absent such deduction with respect to such proposed Permitted Acquisitions, a breach of this Section 6.03(e) would occur, the Borrower shall provide the Administrative Agent, not later than the expiration of such 180-day period, a report in reasonable detail as to such proposed Permitted Acquisitions, if any, and to the extent all or any portion of the proposed Permitted Acquisitions (or any other Permitted Acquisitions) are not so made within such 180 day period, then only the EBITDA attributable to Permitted Acquisitions made shall be deducted for purposes of determining whether the Borrower is in compliance with the 15% limitation set forth above for the Fiscal Year during which such Asset Sales occurred; (e) Subsidiaries which are formed for the sole purpose of (1) any Guarantor to consolidate merging into Persons that will become Subsidiaries or merge with or into any other Person unless the Guarantor is the surviving entity, (2) any Subsidiary acquiring the assets or Equity Interests of any Guarantor to consolidate or Persons and thereafter becoming Subsidiaries, may merge with such Persons or into consolidate those Persons’ assets with the assets of those Subsidiaries so long as such acquisitions and related transactions are otherwise permitted by this Agreement; and (f) any other Person unlessAsset Sale made as a result of the exercise of the Joint Venture Call Right with respect to the assets or Equity Interests of the Subsidiary that are subject to such Joint Venture Call Right; provided, immediately however, that if after giving effect to such consolidation or mergerAsset Sale, none the Borrower’s Leverage Ratio (computed on a pro forma basis as of the Guaranty Coverage Percentages last day of the most recently ended period of four consecutive Fiscal Quarters for which financial statements are available) would exceed 2.00 to 1.00, then the Borrower shall, not later than ten (10) Business Days after such Asset Sale is less than consummated, provide written notice thereof to the Administrative Agent and, unless such prepayment is waived in writing by the Administrative Agent (acting at the direction of the Required PercentageLenders) within ten (10) Business Days after its receipt of such notice, the Borrower shall prepay or cause to be prepaid an amount of its outstanding Indebtedness in the form of term loans used to finance the purchase of the assets subject to such Asset Sale (with payment to be applied pro rata across maturities) or, if no such term loans are then outstanding, Indebtedness under this Agreement or any other Indebtedness (but without any required reduction in the commitments from the lenders that are parties to any revolving credit facilities) equal to the lesser of (x) the amount necessary to be prepaid to reduce such Leverage Ratio to 2.00 to 1.00, (3y) any Guarantor to sell, lease or otherwise transfer all or substantially all of the net cash proceeds received by the Borrower and its assets to any other Person, or Subsidiaries from such Asset Sale (4) any Subsidiary of any Guarantor to sell, lease or otherwise transfer all or substantially all of its assets to another Person unless, immediately after giving effect to such saleany costs, lease or other transferfees and expenses associated therewith and any Indebtedness repaid in connection therewith), none and (z) the total amount of Indebtedness then outstanding as term loans used to finance the purchase of the Guaranty Coverage Percentages is less than the Required Percentage." (17) Section 5.7 is amended assets subject to such Asset Sale and restated in its entirety to read as follows:advances under this Agreement

Consolidations, Mergers and Sales of Assets. The Borrower Borrowers will not (i) not, nor will they permit any Subsidiary to, consolidate or merge with or into any Personinto, (ii) or sell, lease or otherwise transfer all or substantially all of its their assets to to, any other Person, or provided that: (iiia) sell, transfer or otherwise dispose of its interest in any Guarantor; provided that (x) the Borrower may merge with any Wholly-Owned Consolidated Subsidiary another Person if (other than a Guarantor or a Subsidiary of a Guarantori) if immediately after such merger no Default shall have occurred and be continuing and such Wholly-Owned Consolidated Subsidiary shall expressly assume in writing all Person was organized under the laws of the obligations United States of the Borrower hereunderAmerica or one of its states, and under the Notes (if any), and (yii) the Borrower may merge with any other Person (other than a Guarantor or a Subsidiary of a Guarantor) if (A) the such Borrower is the corporation surviving such merger and (Biii) immediately after giving effect to such merger, no Default shall have occurred and be continuing. The , (b) Subsidiaries of any Borrower will not permit (1) any Guarantor to consolidate or may merge with such Borrower or into any other Person unless may merge with one another if, in the Guarantor event such merger is between a Significant Subsidiary and another Subsidiary, such Significant Subsidiary is the corporation surviving entity, (2) any Subsidiary of any Guarantor to consolidate or merge with or into any other Person unless, immediately after giving effect to such consolidation or merger, none of and (c) the Guaranty Coverage Percentages is less than foregoing limitation on the Required Percentage, (3) any Guarantor to sell, lease or otherwise transfer all or substantially all of its assets to any other Person, or (4) any Subsidiary of any Guarantor to sell, lease or otherwise transfer all or substantially all of its assets to another Person unless, immediately after giving effect to such sale, lease or other transfertransfer of assets shall not prohibit (i) any sale and leaseback of any Property owned by any Borrower or any of its Subsidiaries, none provided that the aggregate amount of assets sold and leased back under this clause (c)(i) in the most recent twelve (12) month period do not constitute more than five percent (5%) of Consolidated Total Assets determined as of the Guaranty Coverage Percentages end of the most recently ended fiscal year, (ii) any sale, lease or other transfer of assets made by such Borrower or any Subsidiary in the ordinary course of its business, (iii) any sale, lease or other transfer of assets by a Subsidiary (other than a Significant Subsidiary) to such Borrower or to a Wholly Owned Subsidiary, (iv) any sale, lease or other transfer of assets by any Borrower to a Wholly Owned Subsidiary, (v) any sale, lease or other transfer of assets by a Significant Subsidiary to the US Borrower or to any other Significant Subsidiary, (vi) any transfer of assets consisting solely of cash as consideration for any Investment permitted under Section 6.02, (vii) any sale of receivables permitted under Section 6.08 or (viii) any sale, lease or other transfer of assets outside of the ordinary course of business so long as the aggregate amount of assets sold, leased or otherwise transferred outside of the ordinary course of business in the then most recent twelve (12) month period which were not otherwise permitted by this Section 6.04 to be sold, leased or otherwise transferred together with the amount of any assets then proposed to be sold, leased or otherwise transferred outside of the ordinary course of business which are not otherwise permitted by this Section 6.04 to be sold, leased or otherwise transferred (A) does not constitute more than fifteen percent (15%) of Consolidated Total Assets determined as of the end of the most recently ended fiscal year and (B) has not contributed more than fifteen percent (15%) of Consolidated Net Earnings for the most recently ended fiscal year; provided that, in the case of any event described in the foregoing clause (viii) of this Section 6.04, if the Company shall deliver to the Administrative Agent a certificate of a Financial Officer to the effect that the Company or its relevant Subsidiaries intend to apply the proceeds from such event (or a portion thereof specified in such certificate), within 180 days after receipt of such proceeds, to acquire (or replace or rebuild) real property, equipment or other assets to be used in the business of the Company and/or its Subsidiaries (including one or more Permitted Acquisitions), and certifying that no Default or Event of Default has occurred and is less than continuing, then the Required Percentage." assets sold, leased or otherwise transferred pursuant to such event shall not be included in any determination made pursuant to the foregoing clauses (17viii)(A) or (viii)(B) of this Section 5.7 is amended and restated 6.04 to the extent such proceeds specified in such certificate are so reinvested during such 180-day period (or such extended period as agreed by the Administrative Agent in its entirety sole discretion); provided further that, if such proceeds therefrom have not been so applied by the end of such 180-day period (or such extended period as agreed by the Administrative Agent in its sole discretion), such assets sold, leased or otherwise transferred pursuant to read as follows:such event shall be included in each determination made pursuant to the foregoing clauses (viii)(A) and (viii)(B) of this Section 6.04 to the extent of such proceeds that have not been so applied.

Consolidations, Mergers and Sales of Assets. The No Borrower will, nor will not (i) any Borrower permit any of its Material Subsidiaries to, consolidate or merge with or into into, or effect any PersonAsset Sale to, (ii) sell, lease or otherwise transfer all or substantially all of its assets to any other Person, or discontinue or eliminate any Material Subsidiary or business segment, provided that: (iii) sell, transfer or otherwise dispose of its interest in any Guarantor; provided that (xa) the Borrower Company may merge with any Wholly-Owned Consolidated Subsidiary another Person if (other than a Guarantor or a Subsidiary of a Guarantor) if immediately after such merger no Default shall have occurred and be continuing and such Wholly-Owned Consolidated Subsidiary shall expressly assume in writing all of the obligations of the Borrower hereunder, and under the Notes (if any), and (yi) the Borrower may merge with any other Person (other than a Guarantor or a Subsidiary of a Guarantor) if (A) the Borrower Company is the corporation surviving such merger and (Bii) immediately after giving effect to such merger, no Default or Event of Default shall have occurred and be continuing. The Borrower will not permit ; (1b) any Guarantor to consolidate or Borrower (other than the Company) may merge with or into any other another Person unless the Guarantor if (i) such Borrower is the Person surviving entitysuch merger, and (2ii) any Subsidiary of any Guarantor to consolidate or merge with or into any other Person unless, immediately after giving effect to such consolidation or merger, none no Default or Event of Default shall have occurred and be continuing; (c) Subsidiaries other than Borrowers (i) may merge with, and sell assets to, another Subsidiary, provided that if one of the Guaranty Coverage Percentages Persons involved in such merger or sale is less a Credit Party, the surviving Person or transferee in any such transaction is or becomes by virtue thereof a Credit Party, (ii) may merge with, and sell assets to, the Company, so long as the surviving Person or transferee in any such transaction is the Company, and (iii) may merge with another Person (other than the Required PercentageCompany or another Subsidiary) if (x) such Subsidiary is the Person surviving such merger or such Person becomes a Subsidiary by virtue thereof, and (3y) no Default or Event of Default shall have occurred and be continuing; (d) the Company and its Subsidiaries may eliminate or discontinue business lines and segments from time to time if such elimination or discontinuance could not reasonably be expected to have a Material Adverse Effect; (e) so long as no Event of Default shall then have occurred and be continuing or would result therefrom, the Company and its Subsidiaries may effect any Guarantor to sell, lease or otherwise transfer all or substantially all of its Asset Sale so long as the assets to be sold pursuant to all such Asset Sales during any other PersonFiscal Year have not contributed, in the aggregate, more than twenty-five percent (25%) of the EBITDA of the Company for the then-most recently completed period of four consecutive Fiscal Quarters for which financial statements are available (with the determination of such contribution to EBITDA to be made by the Company in a manner reasonably acceptable to the Administrative Agent); and (f) Subsidiaries which are formed for the sole purpose of (1) merging into Persons that will become Subsidiaries or (42) any Subsidiary acquiring the assets or Equity Interests of any Guarantor to sellPersons and thereafter becoming Subsidiaries, lease may merge with such Persons or consolidate those Persons’ assets with the assets of those Subsidiaries so long as such acquisitions and related transactions are otherwise transfer all or substantially all of its assets to another Person unless, immediately after giving effect to such sale, lease or other transfer, none of the Guaranty Coverage Percentages is less than the Required Percentagepermitted by this Agreement." (17) Section 5.7 is amended and restated in its entirety to read as follows:

Consolidations, Mergers and Sales of Assets. The Borrower Lessee will not wind-up, liquidate or dissolve itself (ior permit or suffer any thereof) or merge, consolidate or merge amalgamate with or into any Person, (ii) convey, sell, lease or sublease, transfer or otherwise transfer dispose of, whether in one transaction or a series of related transactions, all or any part of its business, property or assets, whether now owned or hereafter acquired, or (agree to do any of the foregoing) or purchase or otherwise acquire, whether in one transaction or a series of related transactions, all or substantially all of the assets of any Person (or any division thereof) (or agree to do any of the foregoing), or permit any of its Subsidiaries to do any of the foregoing; provided, however, that: (i) any Dormant Subsidiary or any Non-Wholly Owned Subsidiary may be wound-up, liquidated or dissolved, so long as the proceeds of any such liquidation or dissolution and any remaining assets of such Dormant Subsidiary or Non-Wholly Owned Subsidiary are promptly transferred to the Lessee or any of its Wholly Owned Subsidiaries in connection therewith; (ii) any Subsidiary of the Lessee may be merged into the Lessee or another such Wholly Owned Subsidiary of the Lessee, other than a Liquor License Subsidiary or a Dormant Subsidiary, consolidate with another such Wholly Owned Subsidiary of the Lessee, other than a Liquor License Subsidiary or a Dormant Subsidiary, or sell assets to the Lessee or another Wholly Owned Subsidiary of the Lessee, other than a Liquor License Subsidiary or a Dormant Subsidiary, so long as (A) the Lessee gives the Administrative Agent (I) at least 15 days' prior written notice of any other Personsuch merger or consolidation, or (iiiII) sellat least 10 days' prior written notice of any such sale of assets, transfer (B) no Lease Default or otherwise dispose Lease Event of its interest in any Guarantor; provided that (x) the Borrower may merge with any Wholly-Owned Consolidated Subsidiary (other than a Guarantor or a Subsidiary of a Guarantor) if immediately after such merger no Default shall have occurred and be continuing and such Wholly-Owned Consolidated Subsidiary shall expressly assume in writing all of the obligations of the Borrower hereunder, and under the Notes (if any), and (y) the Borrower may merge with any other Person (other than a Guarantor either before or a Subsidiary of a Guarantor) if (A) the Borrower is the corporation surviving such merger and (B) immediately after giving effect to such transaction, (C) the Owner Trustee's rights in any Collateral, including, without limitation, the existence, perfection and priority of any Lien thereon, are not adversely affected by such merger, no Default shall have occurred consolidation or sale of assets (D) and be continuing. The Borrower will not permit the Lessee complies with Section 14(r) of the Lease; and (1iii) any Guarantor to consolidate or merge with or into any the Lessee and its Subsidiaries (other Person unless than the Guarantor is Liquor License Subsidiaries and the surviving entityDormant Subsidiaries) may (A) sell Inventory in the ordinary course of business, (2B) any Subsidiary dispose of any Guarantor to consolidate obsolete or merge worn-out equipment in the ordinary course of business, (C) conduct Voluntary Store Closings provided that the Lessee complies with or into any other Person unless, immediately after giving effect to such consolidation or merger, none Section 14(q) of the Guaranty Coverage Percentages is less than the Required PercentageLease, (3D) any Guarantor to sellconsummate the Permitted Affiliate Transaction, lease (E) sell or otherwise transfer all dispose of other property or substantially all of its assets to any other Person, or (4) any Subsidiary of any Guarantor to sell, lease or otherwise transfer all or substantially all of its assets to another Person unless, immediately after giving effect to such sale, lease or other transfer, none as provided for in Section 6.02(c)(iii)E of the Guaranty Coverage Percentages is less than Credit Agreement or Section 6.02(c)(iii)F of the Required PercentageCredit Agreement provided that the Lessee complies with Section 14(r) of the Lease." (17) Section 5.7 is amended and restated in its entirety to read as follows:

Consolidations, Mergers and Sales of Assets. (a) The Borrower will shall not consolidate with or merge into any other corporation or convey, transfer or lease its properties and assets substantially as an entirety to any Person, unless: (i) consolidate or merge with the corporation formed by such consolidation or into any Person, (ii) sell, lease which the Borrower is merged or otherwise transfer all the Person which acquires by conveyance or substantially all of its assets to any other Persontransfer, or (iii) sellwhich leases, transfer or otherwise dispose of its interest in any Guarantor; provided that (x) the Borrower may merge with any Wholly-Owned Consolidated Subsidiary (other than a Guarantor or a Subsidiary of a Guarantor) if immediately after such merger no Default shall have occurred properties and be continuing and such Wholly-Owned Consolidated Subsidiary shall expressly assume in writing all of the obligations assets of the Borrower hereunder, substantially as an entirety shall be a corporation organized and existing under the Notes laws of the United States of America, any State thereof or the District of Columbia and shall expressly assume, by an agreement supplemental hereto, executed and delivered to the Administrative Agent, in form satisfactory to the Required Banks, the due and punctual payment of the principal of (and premium, if any), ) and (y) interest on all the Notes and the performance of every covenant of this Agreement on the part of the Borrower may merge with any other Person to be performed or observed; (other than a Guarantor or a Subsidiary of a Guarantor) if (A) the Borrower is the corporation surviving such merger and (Bii) immediately after giving effect to such mergertransaction, no Default shall have occurred happened and be continuing. The ; and (iii) the Borrower will not permit has delivered to the Administrative Agent an officer's certificate and an opinion of counsel, each stating that such consolidation, merger, conveyance, transferor lease and supplemental agreement comply with this Section 5.7 and that all conditions precedent herein provided for relating to such transaction have been complied with. (1b) Upon any Guarantor to consolidate or merge consolidation by the Borrower with or merger by the Borrower into any other Person unless corporation or any conveyance, transfer or lease of the Guarantor is properties and assets of the surviving entityBorrower substantially as an entirety in accordance with Section 5.7, (2) any Subsidiary of any Guarantor to consolidate or merge with or into any other Person unless, immediately after giving effect to the successor corporation formed by such consolidation or mergerinto which the Borrower is merged or to which such conveyance, none transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Borrower under this Agreement with the same effect as if such successor corporation had been named as the Borrower herein, and thereafter, except in the case of a lease, the Guaranty Coverage Percentages is less than predecessor corporation shall be relieved of all obligations and covenants under this Agreement and the Required Percentage, Notes. (3c) The Borrower shall not transfer any Guarantor Principal Property to sell, lease any one or otherwise transfer all or substantially all more of its assets to any other PersonSubsidiaries, whether now existing or (4) any Subsidiary of any Guarantor to sell, lease or otherwise transfer all or substantially all of its assets to another Person unless, immediately after giving effect to such sale, lease or other transfer, none of the Guaranty Coverage Percentages is less than the Required Percentagehereafter acquired." (17) Section 5.7 is amended and restated in its entirety to read as follows:

Consolidations, Mergers and Sales of Assets. The Borrower Holdings will not, and will not (i) permit any of its Subsidiaries to, consolidate or merge with or into any Person, (ii) sell, lease or otherwise transfer all or substantially all of its assets to any other Person, or (iii) sell, transfer permit any other Person to merge into or otherwise dispose of its interest in any Guarantorconsolidate with it; provided that (xi) Holdings and the Borrower may merge merge, consolidate or amalgamate with any Wholly-Owned Consolidated Subsidiary (other than a Guarantor or a Subsidiary of a Guarantor) if immediately after such merger no Default shall have occurred and be continuing and such Wholly-Owned Consolidated Subsidiary shall expressly assume in writing all of the obligations of the Borrower hereunderanother Person, and under the Notes (if any), and (y) the Borrower may merge with any other Person (other than a Guarantor or a Subsidiary of a Guarantor) if (Ax) Holdings or the Borrower Borrower, as the case may be, is the corporation entity surviving such merger and (By) immediately after giving effect to such 49 merger, no Default shall have occurred and be continuing. The Borrower will not permit , (1ii) any Guarantor to Subsidiary may merge, consolidate or merge amalgamate with or into any other Person unless another Person, if (x) such Subsidiary survives (or, in the Guarantor is the surviving entitycase of an amalgamation, continues immediately following) such merger, consolidation or amalgamation and (2y) any Subsidiary of any Guarantor to consolidate or merge with or into any other Person unless, immediately after giving effect to such merger, consolidation or mergeramalgamation, none no Default shall have occurred and be continuing, (iii) Wholly-Owned Subsidiaries of the Guaranty Coverage Percentages is less Holdings (other than the Required PercentageBorrower) may merge, consolidate or amalgamate with one another and (3iv) any Guarantor to sella Subsidiary of Holdings (other than the Borrower) may merge, lease consolidate or otherwise transfer all or substantially all of its assets to amalgamate with any other Person, or (4) any Subsidiary of any Guarantor to sell, lease or otherwise transfer all or substantially all of its assets to another Person unless, if immediately after giving effect to such salemerger no Default shall have occurred and be continuing. In addition, lease Holdings will not, nor will it permit any of its Subsidiaries to, sell, convey, assign, lease, abandon or otherwise transfer or dispose of, voluntarily or involuntarily, any of its properties or assets, tangible or intangible (each, a “Disposition”) (other than Unrestricted Margin Stock), except (a) (1) such dispositions by Holdings or any of its Subsidiaries of any of their respective properties or assets to Holdings or any Subsidiary of Holdings and (2) such dispositions by IPC or any of its Subsidiaries of any of their respective properties or assets to IPC or any of its other Subsidiaries; (b) subject to Section 5.05, the dissolution, liquidation or winding up of any Subsidiary (other than the Borrower); (c) Dispositions of used, worn out, obsolete or surplus property of Holdings or any Subsidiary in the ordinary course of business and the assignment, cancellation, abandonment or other transferdisposition of intellectual property that is, none in the reasonable judgment of Holdings, no longer economically practicable to maintain or useful in the conduct of the Guaranty Coverage Percentages business of Holdings and the Subsidiaries, taken as a whole; (d) licenses (as licensor) of intellectual property so long as such licenses do not materially interfere with the business of Holdings or any of its Subsidiaries, taken as a whole; (e) Dispositions of cash, cash equivalents and investment securities (including pursuant to any securities lending arrangements permitted by clause (u) of Section 6.03 and including in connection with the posting of collateral (or the realization thereof) under the Five-Year Secured Letter of Credit Facility, the IPC Facility or any other secured Indebtedness permitted hereunder); (f) releases, surrenders or waivers of contracts, torts or other claims of any kind as a result of the settlement of any litigation or threatened litigation; (g) the granting or existence of Liens permitted under this Agreement; (h) licenses, sublicenses, leases or subleases of property so long as such licenses, sublicenses, leases or subleases do not materially interfere with the business of Holdings and its Subsidiaries, taken as a whole; (i) Dividends permitted under Section 6.08; (j) ceding of insurance or reinsurance in the ordinary course of business; (k) other Dispositions of assets with a fair market value (as reasonably determined by the board of directors or senior management of Holdings) which in the aggregate do not exceed 10% of the lesser of the book or fair market value of the property and assets of Holdings determined on a consolidated basis as of the last day of the previous fiscal year of Holdings; provided that immediately after giving effect (including pro forma effect) to any Disposition made pursuant to this clause (k), no Event of Default under Section 7.01(c) relating solely to a breach of Section 6.10 shall have occurred and be continuing; (l) dispositions of property as a result of a casualty event involving such property or any disposition of real property to a Governmental Authority as a result of a condemnation of such real property; (m) sales or other Dispositions of non-core assets acquired in an acquisition permitted under this agreement; provided that such sales shall be consummated within 360 days of such acquisition; and (n) any Disposition of property or series of related Dispositions of or in respect of which the fair market value of such property and the consideration payable to Holdings or any of its Subsidiaries is equal to or less than the Required Percentage$100,000." (17) Section 5.7 is amended and restated in its entirety to read as follows:

Consolidations, Mergers and Sales of Assets. The No Borrower will, nor will not (i) any Borrower permit any of its Material Subsidiaries to, consolidate or merge with or into into, or effect any PersonAsset Sale to, (ii) sell, lease or otherwise transfer all or substantially all of its assets to any other Person, or discontinue or eliminate any Material Subsidiary or business segment, provided that: (iii) sell, transfer or otherwise dispose of its interest in any Guarantor; provided that (xa) the Borrower Company may merge with any Wholly-Owned Consolidated Subsidiary another Person if (other than a Guarantor or a Subsidiary of a Guarantor) if immediately after such merger no Default shall have occurred and be continuing and such Wholly-Owned Consolidated Subsidiary shall expressly assume in writing all of the obligations of the Borrower hereunder, and under the Notes (if any), and (yi) the Borrower may merge with any other Person (other than a Guarantor or a Subsidiary of a Guarantor) if (A) the Borrower Company is the corporation surviving such merger and (Bii) immediately after giving effect to such merger, no Default or Event of Default shall have occurred and be continuing. The Borrower will not permit ; (1b) any Guarantor to consolidate or Borrower (other than the Company) may merge with or into any other another Person unless the Guarantor if (i) such Borrower is the Person surviving entitysuch merger, and (2ii) any Subsidiary of any Guarantor to consolidate or merge with or into any other Person unless, immediately after giving effect to such consolidation or merger, none no Default or Event of Default shall have occurred and be continuing; (c) Subsidiaries other than Borrowers (i) may merge with, and sell assets to, another Subsidiary, provided that if one of the Guaranty Coverage Percentages Persons involved in such merger or sale is less a Credit Party, the surviving Person or transferee in any such transaction is or becomes by virtue thereof a Credit Party, (ii) may merge with, and sell assets to, the Company, so long as the surviving Person or transferee in any such transaction is the Company, and (iii) may merge with another Person (other than the Required PercentageCompany or another Subsidiary) if (x) such Subsidiary is the Person surviving such merger or such Person becomes a Subsidiary by virtue thereof, and (3y) no Default or Event of Default shall have occurred and be continuing; (d) the Company and its Subsidiaries may eliminate or discontinue business lines and segments from time to time if such elimination or discontinuance could not reasonably be expected to have a Material Adverse Effect; (e) so long as no Event of Default shall then have occurred and be continuing or would result therefrom, the Company and its Subsidiaries may effect any Guarantor to sell, lease or otherwise transfer all or substantially all of its Asset Sale so long as the assets to be sold pursuant to all such Asset Sales during any other PersonFiscal Year have not contributed, in the aggregate, more than twenty-five percent (25%) of the EBITDA of the Company for the then-most recently completed period of four consecutive Fiscal Quarters for which financial statements are available (with the determination of such contribution to EBITDA to be made by the Company in a manner reasonably acceptable to the Administrative Agent); and (f) Subsidiaries which are formed for the sole purpose of (1) merging into Persons that will become Subsidiaries or (42) any Subsidiary acquiring the assets or Equity Interests of any Guarantor to sellPersons and thereafter becoming Subsidiaries, lease may merge with such Persons or consolidate those Persons' assets with the assets of those Subsidiaries so long as such acquisitions and related transactions are otherwise transfer all or substantially all of its assets to another Person unless, immediately after giving effect to such sale, lease or other transfer, none of the Guaranty Coverage Percentages is less than the Required Percentagepermitted by this Agreement." (17) Section 5.7 is amended and restated in its entirety to read as follows:

Consolidations, Mergers and Sales of Assets. The Borrower will not (i) consolidate or merge with or into any Person, (ii) sell, lease or otherwise transfer all or substantially all of its assets to any other Person, or (iii) sell, transfer or otherwise dispose of its interest in any Guarantor; provided that (x) the Borrower may merge with any Wholly-Owned Consolidated Subsidiary (other than a Guarantor or a Subsidiary of a Guarantor) if immediately after such merger no Default shall have occurred and be continuing and such Wholly-Owned Consolidated Subsidiary shall expressly assume in writing all of the obligations of the Borrower hereunder, and under the Notes (if any), and (y) the Borrower may merge with any other Person (other than a Guarantor or a Subsidiary of a Guarantor) if (A) the Borrower is the corporation surviving such merger and (B) immediately after giving effect to such merger, no Default shall have occurred and be continuing. The Borrower will not permit (1) any Guarantor to consolidate or merge with or into any other Person unless or reorganize its assets into series of a series corporation or entity (if it currently has no series) or into a non-series corporation or entity (if it currently is a series of such an entity), nor will the Guarantor is Borrower sell, lease or otherwise transfer, directly or indirectly, all or any substantial part of its assets to any other Person or invest all of its investable assets in any other open-end management investment company or otherwise invest all of its assets in a master-feeder or fund-of-funds investment structure or any other multiple investment company structure except that: (a) the surviving entity, Borrower may sell its assets in the ordinary course of business as described in its Prospectus and Statement of Additional Information; (2b) any Subsidiary of any Guarantor to the Borrower may consolidate or merge with or into any other Person unlessTrust (or a series thereof), immediately after giving effect to such consolidation or merger, none of the Guaranty Coverage Percentages is less than the Required Percentage, (3) liquidate or transfer any Guarantor to sell, lease or otherwise transfer all or substantially all of its assets to a Trust (or a series thereof) or an Affiliate of a Trust (or a series thereof) PROVIDED THAT, in each case, (i) the Borrower shall notify the Banks in writing of its intention to so consolidate, merge, liquidate or transfer no later than fifteen (15) Business Days prior to the date of such proposed consolidation, merger, liquidation or transfer, along with a revised SCHEDULE 2 hereto which gives effect to such consolidation, merger, liquidation or transfer, (ii) all Obligations of such Borrower shall have been paid in full on or prior to the date of such consolidation, merger, liquidation or transfer and (iii) from and after the date of such consolidation, merger, liquidation or transfer such Borrower shall no longer be a Borrower under this Agreement and such Borrower shall no longer be permitted to request any other Person, or Borrowing; and (4c) any Subsidiary of any Guarantor to sell, lease or otherwise transfer all or substantially the Borrower may invest all of its investable assets in a Trust (or a series thereof) or an Affiliate of a Trust (or a series thereof), PROVIDED THAT (i) such Borrower shall notify the Bank in writing of its intention to another Person unlessso invest its assets no later than fifteen (15) Business Days prior to the date of such proposed investment, immediately (ii) all Obligations of such Borrower shall have been paid in full on or prior to the date of such investment, and (iii) from and after giving effect the date of such investment such Borrower shall no longer be a Borrower under this Agreement and such Borrower shall no longer be permitted to such sale, lease or other transfer, none of the Guaranty Coverage Percentages is less than the Required Percentagerequest any Borrowing." (17) Section 5.7 is amended and restated in its entirety to read as follows:

Consolidations, Mergers and Sales of Assets. (a) The Borrower will not (i) not, nor will it permit any of its Subsidiaries to, consolidate or merge with or into into, or effect any PersonAsset Sale to, (ii) sell, lease or otherwise transfer all or substantially all of its assets to any other Person, or (iii) selldiscontinue or eliminate any Operating Subsidiary or business segment, transfer or otherwise dispose of its interest in any Guarantor; provided that (xA) the Borrower may merge with any Wholly-Owned Consolidated Subsidiary another Person if (other than a Guarantor or a Subsidiary of a Guarantori) if immediately after such merger no Default shall have occurred and be continuing and such Wholly-Owned Consolidated Subsidiary shall expressly assume in writing all Person was organized under the laws of the obligations United States of the Borrower hereunderAmerica or one of its states, and under the Notes (if any), and (y) the Borrower may merge with any other Person (other than a Guarantor or a Subsidiary of a Guarantor) if (Aii) the Borrower is the corporation surviving such merger and (Biii) immediately after giving effect to such merger, no Default or Event of Default shall have occurred and be continuing. The , (B) Subsidiaries may merge with, and sell assets to, one another and the Borrower, except that no Subsidiary of the Borrower, other than a member of the GPS Group, shall merge with or sell assets to a member of the GPS Group, (C) the Borrower and its Subsidiaries may eliminate or discontinue business lines and segments from time to time if (i) such action has been approved by the Board of Directors of the Borrower, and (ii) such elimination or discontinuance will not permit jeopardize the Borrower's or any Subsidiary Guarantor's ability to perform under any of the Loan Documents, (D) so long as no Default or Event of Default shall be in existence either immediately prior to or following any asset disposition, the Borrower and its respective Subsidiaries may effect any Asset Sale so long as the value of the assets sold (measured at the higher of book value or the total sale price for such assets) pursuant to all such Asset Sales (i) during the Fiscal Year ending May 31, 2001, does not exceed $40,000,000, and (ii) during any subsequent Fiscal Year does not exceed ten percent (10%) of the book value of the consolidated total assets of the Borrower as of the end of the immediately preceding Fiscal Year, (E) Subsidiaries which are formed for the sole purpose of (1) any Guarantor to consolidate merging into Persons that will become Subsidiaries, or merge with or into any other Person unless the Guarantor is the surviving entity, (2) any Subsidiary acquiring the assets or stock (or in the case of any Guarantor to consolidate or a limited liability company, the members' equivalent equity interests) of Persons and thereafter becoming Subsidiaries, may merge with such Persons or into any other Person unless, immediately after giving consolidate those Persons' assets with the assets of those Subsidiaries and (F) GPS may effect to such consolidation or merger, none an LLC Conversion as set forth in Section 6.9(b). (b) GPS will not effect an LLC Conversion except upon compliance with and satisfaction of the Guaranty Coverage Percentages is following requirements and conditions: (1) GPS will give the Administrative Agent not less than 30 days' prior written notice of its intent to effect an LLC Conversion, such notice to include the Required Percentageearliest date of the LLC Conversion and a description in reasonable detail of the transactions that will be consummated in order to effect the LLC Conversion; (2) GPS will submit to the Administrative Agent not less than 15 days prior to the LLC Conversion Date the proposed forms of transaction documents (e.g., merger agreement, asset contribution or transfer agreements, assignments, and assumption agreements) to be used by GPS to effect the LLC Conversion (collectively, the "LLC Conversion Documents"); (3) any Guarantor There will be executed and delivered to sellthe Administrative Agent, lease at or otherwise transfer before the LLC Conversion the following documents, all or substantially all of its assets in form and substance satisfactory to any other Person, or the Required Lenders: (4A) any Subsidiary of any Guarantor to sell, lease or otherwise transfer all or substantially all of its assets to another Person unless, immediately after giving effect to such sale, lease a tax sharing agreement between Newco and the Borrower (or other transferentity with whom Newco's tax returns may be consolidated for federal and state income tax purposes); (B) a certificate, none dated as of the Guaranty Coverage Percentages LLC Conversion Date, signed on behalf of each of GPS and Newco by a principal financial officer of each of GPS and Newco, to the effect that (i) no Default or Event of Default has occurred and is less than continuing on such date, and (ii) the Required Percentage."representations and warranties contained in Article 4 are true on and as of such date; (17C) a certified copy of the LLC Conversion Documents as the same are being executed and delivered in connection with the LLC Conversion; and (D) all documents which the Administrative Agent or any Lender may reasonably request relating to the existence of Newco, the authority for and the validity of the LLC Conversion Documents and the documents to be delivered pursuant to this Section 5.7 is amended and restated in its entirety to read as follows:6.9(b)

Consolidations, Mergers and Sales of Assets. The Borrower will not (i) consolidate or merge with or into any Personother Person or reorganize its assets into a non-series entity, (ii) nor will the Borrower sell, lease or otherwise transfer, directly or indirectly, all or any substantial part of its assets to any other Person except that: (a) the Borrower may sell its assets in the ordinary course of business as described in its Prospectus; (b) the Borrower may merge, consolidate or reorganize with or into any other Borrower, or sell or otherwise transfer all or any substantial part of its assets to any other Borrower provided that, in each such case, the Borrower shall notify the Banks in writing of its intention to so consolidate, merge or reorganize with or into, or sell or transfer its assets to, such other Borrower no later than fifteen (15) days prior to the date of the proposed consolidation, merger, reorganization, sale or transfer; and (c) the Borrower may merge, consolidate, or reorganize its assets with or into any other entity, liquidate its assets, or sell or otherwise transfer all or any substantial part of its assets to any other entity, provided that, in each case: (i) the Borrower shall notify the Banks in writing of its intention to so consolidate, merge, reorganize, liquidate, sell or otherwise transfer its assets no later than fifteen (15) days prior to the date of such proposed consolidation, merger, reorganization, liquidation, sale or transfer; (ii) if the Borrower shall liquidate its assets then (1) the Borrower shall deliver to the Banks a revised Schedule 2 hereto which gives effect to such liquidation, (2) all Obligations of such Borrower shall have been paid in full on or prior to the date of such liquidation and (3) from and after the date of liquidation, such Borrower shall no longer be a Borrower under this Agreement and such Borrower shall no longer be permitted to request any Borrowing; and (iii) if the Borrower shall merge, consolidate or reorganize its assets with or into any other entity and the Borrower shall not be the surviving entity of such merger, consolidation or reorganization, or if the Borrower shall sell or transfer all or substantially all of its assets to any other Personentity, then, unless the surviving entity of such merger, consolidation or (iii) sell, transfer reorganization or the entity to which the Borrower shall have sold or otherwise dispose transferred all or any substantial part of its interest assets shall have become a party to this Credit Agreement and the other Loan Documents in any Guarantor; provided that accordance with Section 3.01(b) hereof, (x1) the Borrower may merge with any Wholly-Owned Consolidated Subsidiary (other than shall deliver to the Banks a Guarantor or a Subsidiary of a Guarantor) if immediately after such merger no Default shall have occurred and be continuing and such Wholly-Owned Consolidated Subsidiary shall expressly assume in writing all of the obligations of the Borrower hereunder, and under the Notes (if any), and (y) the Borrower may merge with any other Person (other than a Guarantor or a Subsidiary of a Guarantor) if (A) the Borrower is the corporation surviving such merger and (B) immediately after giving revised Schedule 2 hereto which gives effect to such consolidation, merger, no Default reorganization, liquidation, sale or transfer, (2) all Obligations of such Borrower shall have occurred been paid in full on or prior to the date of such consolidation, merger, reorganization, liquidation, sale or transfer and (3) from and after the date of such consolidation, merger, reorganization, liquidation, sale or transfer such Borrower shall no longer be continuinga Borrower under this Agreement and such Borrower shall no longer be permitted to request any Borrowing. The Borrower will not permit (1) any Guarantor to consolidate or merge with or into any other Person unless the Guarantor is the surviving entity, (2) any Subsidiary of any Guarantor to consolidate or merge with or into any other Person unless, immediately after giving effect to such consolidation or merger, none of the Guaranty Coverage Percentages is less than the Required Percentage, (3) any Guarantor to sell, lease or otherwise transfer all or substantially invest all of its investable assets to in any other Person, or (4) any Subsidiary of any Guarantor to sell, lease open-end management investment company or otherwise transfer employ a master-feeder or fund of funds investment structure or any other multiple investment company structure. (d) All references in the Credit Agreement to the Floating Rate LLC and all provisions in the Credit Agreement that are applicable to the Floating Rate LLC are hereby deleted. (e) Schedule 1 to the Credit Agreement is hereby amended by deleting such schedule in its entirety, and substituting therefor the Schedule 1 attached hereto. (f) Schedule 2 to the Credit Agreement is hereby amended by deleting such schedule in its entirety, and substituting therefor the Schedule 2 attached hereto. (g) Lloyds TSB Bank plc shall have the title of Senior Managing Agent with respect to the Credit Agreement and each of the other Loan Documents. The Senior Managing Agent shall not have any rights, duties or substantially all responsibilities under the Credit Agreement or any of the other Loan Documents in such capacity. (h) Each Bank (other than PNC Bank National Association), by its assets signature hereto, hereby confirms that it has not, as of the date hereof, requested that any Borrower deliver a Note under Section 2.04 of the Credit Agreement for the Loans made or to another Person unless, immediately after giving effect be made by such Bank to such sale, lease or other transfer, none of Borrower under the Guaranty Coverage Percentages is less than the Required PercentageCredit Agreement as amended hereby." (17) Section 5.7 is amended and restated in its entirety to read as follows:

Consolidations, Mergers and Sales of Assets. The Borrowers and the Parent shall not, and shall not permit any other Guarantor, any Development Affiliate Guarantor or any other Subsidiary of the Parent or any Borrower will not to, (ia) consolidate or merge with or enter into any Persontransaction of merger or consolidation; (b) liquidate, wind-up or dissolve itself (iior suffer any liquidation or dissolution) or (c) convey, sell, lease or otherwise transfer all or substantially all of its assets to any other Personlease, or (iii) sellsublease, transfer or otherwise dispose of, in one or a series of transactions, any Unencumbered Pool Property or any interest therein, or all or any substantial part of its interest business or assets, or the capital stock of or other equity interests in any Guarantor; provided Subsidiary, except that (xi) the Borrower may merge with any Wholly-Owned Consolidated Subsidiary (other than a Guarantor or a Subsidiary of a Guarantor) if immediately after such merger no Default shall have occurred and be continuing and such Wholly-Owned Consolidated Subsidiary shall expressly assume in writing all of the obligations of the Borrower hereunder, and under the Notes (if any), and (y) the Borrower may merge or consolidate with any other Person such Borrower or a Wholly Owned Subsidiary of such Borrower, (other than a Guarantor or ii) a Subsidiary of a GuarantorBorrower may sell, transfer or dispose of its assets to such Borrower or a Wholly Owned Subsidiary of such Borrower, (iii) if a Development Joint Venture that is a Borrower may (x) merge with and into RCLP or (y) liquidate, so long as after giving effect to any such merger or liquidation (A) the Borrower is the corporation surviving all Unencumbered Pool Properties of such Development Joint Venture immediately prior to such merger and (B) or liquidation are owned by RCLP immediately after giving effect to such mergermerger or liquidation and (B) all Loans and other Obligations of such Development Joint Venture are either assumed by RCLP or repaid prior to or simultaneously with such merger or liquidation, no Default shall have occurred and be continuing. The Borrower will not permit (1) any Guarantor to consolidate or merge with or into any other Person unless the Guarantor is the surviving entity, (2iv) any Subsidiary of any Guarantor to consolidate or the Parent identified in Section 8.27. may (x) merge with and into RCLP or into any other Person unless, immediately after giving effect to such consolidation or merger, none Subsidiary of the Guaranty Coverage Percentages is less than the Required PercentageParent identified in such Section, (3y) any Guarantor to liquidate, so long as such Subsidiary is a Wholly Owned Subsidiary of the Parent and (z) sell, lease transfer or otherwise transfer all or substantially all dispose of its assets to RCLP or any other Person, or (4) any Subsidiary of the Parent identified in such Section, so long as any such merger, liquidation, sale, transfer or disposition referred to in this clause (iv) is being effected in connection with the Parent's compliance with its obligations under the first sentence of such Section. Further, the Borrowers and the Parent shall not, and shall not permit any Guarantor, any Development Affiliate Guarantor to sellnor any other Subsidiary of the Parent or any Borrower to, lease enter into any sale-leaseback transactions or otherwise transfer all other transaction by which any such Person shall remain liable as lessee (or substantially all the economic equivalent thereof) of its assets any real or personal property that it has sold or leased to another Person unless, immediately after giving effect to such sale, lease or other transfer, none of the Guaranty Coverage Percentages is less than the Required PercentagePerson." (17) Section 5.7 is amended and restated in its entirety to read as follows:

Consolidations, Mergers and Sales of Assets. The Borrower Lessee will not wind-up, liquidate or dissolve itself (ior permit or suffer any thereof) or merge, consolidate or merge amalgamate with or into any Person, (ii) convey, sell, lease or sublease, transfer or otherwise transfer dispose of, whether in one transaction or a series of related transactions, all or any part of its business, property or assets, whether now owned or hereafter acquired, or (agree to do any of the foregoing) or purchase or otherwise acquire, whether in one transaction or a series of related transactions, all or substantially all of the assets of any Person (or any division thereof) (or agree to do any of the foregoing), or permit any of its Subsidiaries to do any of the foregoing; provided, however, that: (i) any Dormant Subsidiary or any Non-Wholly Owned Subsidiary may be wound-up, liquidated or dissolved, so long as the proceeds of any such liquidation or dissolution and any remaining assets of such Dormant Subsidiary or Non-Wholly Owned Subsidiary are promptly transferred to the Lessee or any of its Wholly Owned Subsidiaries in connection therewith; (ii) any Subsidiary of the Lessee may be merged into the Lessee or another such Wholly Owned Subsidiary of the Lessee, other than a Liquor License Subsidiary or a Dormant Subsidiary, consolidate with another such Wholly Owned Subsidiary of the Lessee, other than a Liquor License Subsidiary or a Dormant Subsidiary, or sell assets to the Lessee or another Wholly Owned Subsidiary of the Lessee, other than a Liquor License Subsidiary or a Dormant Subsidiary, so long as (A) the Lessee gives the Administrative Agent (I) at least 15 days' prior written notice of any other Personsuch merger or consolidation, or (iiiII) sellat least 10 days' prior written notice of any such sale of assets, transfer (B) no Lease Default or otherwise dispose Lease Event of its interest in any Guarantor; provided that (x) the Borrower may merge with any Wholly-Owned Consolidated Subsidiary (other than a Guarantor or a Subsidiary of a Guarantor) if immediately after such merger no Default shall have occurred and be continuing and such Wholly-Owned Consolidated Subsidiary shall expressly assume in writing all of the obligations of the Borrower hereunder, and under the Notes (if any), and (y) the Borrower may merge with any other Person (other than a Guarantor either before or a Subsidiary of a Guarantor) if (A) the Borrower is the corporation surviving such merger and (B) immediately after giving effect to such transaction, (C) the Owner Trustee's rights in any Collateral, including, without limitation, the existence, perfection and priority of any Lien thereon, are not adversely affected by such merger, no Default shall have occurred consolidation or sale of assets (D) and be continuing. The Borrower will not permit the Lessee complies with Section 14(r) of the Lease; and (1iii) any Guarantor to consolidate or merge with or into any the Lessee and its Subsidiaries (other Person unless than the Guarantor is Liquor License Subsidiaries and the surviving entityDormant Subsidiaries) may (A) sell Inventory in the ordinary course of business, (2B) any Subsidiary dispose of any Guarantor to consolidate obsolete or merge worn-out equipment in the ordinary course of business, (C) conduct Voluntary Store Closings provided that the Lessee complies with or into any other Person unless, immediately after giving effect to such consolidation or merger, none Section 14(q) of the Guaranty Coverage Percentages is less than the Required PercentageLease, (3D) any Guarantor to sellconsummate the Permitted Affiliate Transaction, lease (E) sell or otherwise transfer all dispose of other property or substantially all of its assets to any other Person, or (4) any Subsidiary of any Guarantor to sell, lease or otherwise transfer all or substantially all of its assets to another Person unless, immediately after giving effect to such sale, lease or other transfer, none as provided for in Section 6.02(c)(iii)E of the Guaranty Coverage Percentages Credit Agreement or Section 6.02(c)(iii)F of the Credit Agreement provided that the Lessee complies with Section 14(r) of the Lease. 11. Amendment to Existing Section 5.12: Section 5.12 of the Participation Agreement (Compliance with Laws; Payment of Taxes) is less than the Required Percentage." (17) hereby amended by deleting Section 5.7 is amended and restated 5.12 in its entirety to read as followsand substituting in its place the following revised Section 5.12:

Consolidations, Mergers and Sales of Assets. (a) The Borrower Company will not (i) merge into or consolidate or merge with or into any other Person, (ii) or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise transfer dispose of (in one transaction or in a series of transactions) all or substantially all of its assets to assets, except that, if at the time thereof and immediately after giving effect thereto, no Default shall or would have occurred and be continuing, any Person may merge into the Company in a transaction in which the Company is the surviving entity. (b) Neither Subsidiary Borrower will merge into or consolidate with, any other Person, or (iii) permit any other Person to merge into or consolidate with it, or sell, transfer transfer, lease or otherwise dispose of its interest (in any Guarantor; provided that (xone transaction or in a series of transactions) the Borrower may merge with any Wholly-Owned Consolidated Subsidiary (other than a Guarantor or a Subsidiary of a Guarantor) if immediately after such merger no Default shall have occurred and be continuing and such Wholly-Owned Consolidated Subsidiary shall expressly assume in writing all of the obligations of the Borrower hereunder, and under the Notes (if any), and (y) the Borrower may merge with any other Person (other than a Guarantor or a Subsidiary of a Guarantor) if (A) the Borrower is the corporation surviving such merger and (B) immediately after giving effect to such merger, no Default shall have occurred and be continuing. The Borrower will not permit (1) any Guarantor to consolidate or merge with or into any other Person unless the Guarantor is the surviving entity, (2) any Subsidiary of any Guarantor to consolidate or merge with or into any other Person unless, immediately after giving effect to such consolidation or merger, none of the Guaranty Coverage Percentages is less than the Required Percentage, (3) any Guarantor to sell, lease or otherwise transfer all or substantially all of its assets assets, except that, if at the time thereof and immediately after giving effect thereto, no Default shall or would have occurred and be continuing, either Subsidiary Borrower may merge into or consolidate with any other corporation (the “successor corporation”) organized under the laws of the United States of America or any state thereof which is (x) the Company, (y) in the case of a merger or consolidation involving Allstate Insurance (or any successor thereto), a Wholly-Owned Subsidiary of the Company, provided that any direct or indirect parent thereof is not an insurance company or other entity subject to any law or regulation which could limit or restrict the ability of the survivor of such merger or consolidation to pay dividends or make other Persondistributions or payments, directly or indirectly, to the Company, or (4z) in the case of a merger or consolidation involving Allstate Life (or any successor thereto), a Wholly-Owned Subsidiary of the Company, and provided further that each Subsidiary Borrower covenants that any Guarantor such consolidation, merger, sale or transfer shall be upon the conditions that the due and punctual payment of the principal and accrued interest on any Loans made to sellsuch Subsidiary Borrower, lease and the due and punctual performance and observance of all the terms, covenants and conditions of this Credit Agreement to be kept or otherwise performed by such Subsidiary Borrower shall, by an agreement supplemental hereto (which supplemental agreement shall be in form and substance satisfactory to the Administrative Agent and shall become effective upon or waiver of the conditions described in Section 5.1(b), (c), (d), (e) and (h) in a form appropriate to such supplemental agreement), be assumed by the corporation (other than such Subsidiary Borrower) formed by or resulting from any such consolidation or merger, or which shall have received the transfer of all or substantially all of its the property and assets to another Person unlessof the Subsidiary Borrower, immediately after giving effect to just as fully and effectually as if such salesuccessor had been the original Subsidiary Borrower; and in the event of any such sale or transfer the predecessor Subsidiary Borrower may be dissolved, lease wound up and liquidated at any time thereafter. In addition, in connection with marketing alliances or other transfer, none promotional arrangements undertaken by one or both of the Guaranty Coverage Percentages is less than Subsidiary Borrowers, the Required PercentageSubsidiary Borrowers may from time to time issue preferred stock to any Person, whether or not affiliated with the Company, having an aggregate liquidation preference (as to both Subsidiary Borrowers) that, together with the aggregate amount of Debt (determined without regard to the clauses (c) through and including (h) of the proviso of the definition of the term “Debt”) secured by Liens permitted under the second sentence of Section 6.5, does not exceed $450,000,000 (or its equivalent in any other currency) at any one time outstanding. Notwithstanding anything in this Section 6.6 to the contrary, Allstate Insurance may transfer ownership of Allstate Life to the Company or to any other Wholly-Owned Subsidiary of the Company." (17) Section 5.7 is amended and restated in its entirety to read as follows:

Consolidations, Mergers and Sales of Assets. The Borrower Company will not, and will not (i) permit any of its Subsidiaries to, consolidate or merge with or into any Person, (ii) sell, lease or otherwise transfer all or substantially all of its assets to any other Person, or (iii) sell, transfer permit any other Person to merge into or otherwise dispose of its interest in any Guarantorconsolidate with it; provided that (i) the Company may merge, consolidate or amalgamate with another Person, if (x) the Borrower may merge with any Wholly-Owned Consolidated Subsidiary (other than a Guarantor or a Subsidiary of a Guarantor) if immediately after such merger no Default shall have occurred and be continuing and such Wholly-Owned Consolidated Subsidiary shall expressly assume in writing all of the obligations of the Borrower hereunder, and under the Notes (if any), and (y) the Borrower may merge with any other Person (other than a Guarantor or a Subsidiary of a Guarantor) if (A) the Borrower Company is the corporation entity surviving such merger and (By) immediately after giving effect to such merger, no Default or Event of Default shall have occurred and be continuing, (ii) any Subsidiary may merge, consolidate or amalgamate with or into another Person, if (x) such Subsidiary survives (or, in the case of an amalgamation, continues immediately following) such merger, consolidation or amalgamation and (y) immediately after giving effect to such merger, consolidation or amalgamation, no Default or Event of Default shall have occurred and be continuing, (iii) Wholly-Owned Subsidiaries of the Company may merge, consolidate or amalgamate with one another provided that if one of such Subsidiaries is a Designated Subsidiary Account Party and the other is not, then the Designated Subsidiary Account Party must be the surviving entity of such merger and (iv) a Subsidiary (other than a Designated Subsidiary Account Party) of the Company may merge, consolidate or amalgamate with any other Person if immediately after giving effect to such merger no Default or Event of Default shall have occurred and be continuing. The Borrower In addition, the Company will not not, nor will it permit any of its Subsidiaries to, sell, convey, assign, lease, abandon or otherwise transfer or dispose of, voluntarily or involuntarily, any of its properties or assets, tangible or intangible (each, a “Disposition”) (other than Unrestricted Margin Stock), except (a) (1) such dispositions by the Company or any Guarantor of its Subsidiaries of any of their respective properties or assets to consolidate the Company or merge with or into any other Person unless Subsidiary of the Guarantor is the surviving entity, Company and (2) such dispositions by IPC or any of its Subsidiaries of any of their respective properties or assets to IPC or any of its other Subsidiaries; (b) subject to Section 5.05, the dissolution, liquidation or winding up of any Subsidiary other than a Designated Subsidiary Account Party; (c) Dispositions of used, worn out, obsolete or surplus property of the Company or any Subsidiary in the ordinary course of business and the assignment, cancellation, abandonment or other disposition of intellectual property that is, in the reasonable judgment of the Company, no longer economically practicable to maintain or useful in the conduct of the business of the Company and the Subsidiaries, taken as a whole; (d) licenses (as licensor) of intellectual property so long as such licenses do not materially interfere with the business of the Company or any of its Subsidiaries, taken as a whole; (e) Dispositions of cash, cash equivalents and investment securities (including pursuant to any securities lending arrangements permitted by clause (u) of Section 6.03 and including in connection with the posting of collateral (or the realization thereof) under the Five-Year Secured Letter of Credit Facility, the IPC Facility, the Xxxxx’x XX Facility or any other secured Indebtedness permitted hereunder); (f) releases, surrenders or waivers of contracts, torts or other claims of any Guarantor to consolidate or merge with or into any other Person unless, immediately after giving effect to such consolidation or merger, none kind as a result of the Guaranty Coverage Percentages is less than the Required Percentage, (3) any Guarantor to sell, lease or otherwise transfer all or substantially all of its assets to any other Person, or (4) any Subsidiary settlement of any Guarantor to selllitigation or threatened litigation; (g) the granting or existence of Liens permitted under this Agreement; (h) licenses, lease sublicenses, leases or otherwise transfer all or substantially all subleases of its assets to another Person unlessproperty so long as such licenses, immediately after giving effect to such salesublicenses, lease or other transfer, none of the Guaranty Coverage Percentages is less than the Required Percentage." (17) Section 5.7 is amended and restated in its entirety to read as follows:leases or

Consolidations, Mergers and Sales of Assets. (a) The Borrower Company will not (i) merge into or consolidate or merge with or into any other Person, (ii) or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise transfer dispose of (in one transaction or in a series of transactions) all or substantially all of its assets to assets, except that, if at the time thereof and immediately after giving effect thereto, no Default shall or would have occurred and be continuing, any Person may merge into the Company in a transaction in which the Company is the surviving entity. (b) Neither Subsidiary Borrower will merge into or consolidate with, any other Person, or (iii) permit any other Person to merge into or consolidate with it, or sell, transfer transfer, lease or otherwise dispose of its interest (in any Guarantor; provided that (xone transaction or in a series of transactions) the Borrower may merge with any Wholly-Owned Consolidated Subsidiary (other than a Guarantor or a Subsidiary of a Guarantor) if immediately after such merger no Default shall have occurred and be continuing and such Wholly-Owned Consolidated Subsidiary shall expressly assume in writing all of the obligations of the Borrower hereunder, and under the Notes (if any), and (y) the Borrower may merge with any other Person (other than a Guarantor or a Subsidiary of a Guarantor) if (A) the Borrower is the corporation surviving such merger and (B) immediately after giving effect to such merger, no Default shall have occurred and be continuing. The Borrower will not permit (1) any Guarantor to consolidate or merge with or into any other Person unless the Guarantor is the surviving entity, (2) any Subsidiary of any Guarantor to consolidate or merge with or into any other Person unless, immediately after giving effect to such consolidation or merger, none of the Guaranty Coverage Percentages is less than the Required Percentage, (3) any Guarantor to sell, lease or otherwise transfer all or substantially all of its assets assets, except that, if at the time thereof and immediately after giving effect thereto, no Default shall or would have occurred and be continuing, either Subsidiary Borrower may merge into or consolidate with any other corporation (the “successor corporation”) organized under the laws of the United States of America or any state thereof which is (x) the Company, (y) in the case of a merger or consolidation involving Allstate Insurance (or any successor thereto), a Wholly-Owned Subsidiary of the Company, provided that any direct or indirect parent thereof is not an insurance company or other entity subject to any law or regulation which could limit or restrict the ability of the survivor of such merger or consolidation to pay dividends or make other Persondistributions or payments, directly or indirectly, to the Company, or (4z) in the case of a merger or consolidation involving Allstate Life (or any successor thereto), a Wholly-Owned Subsidiary of the Company, and provided further that each Subsidiary Borrower covenants that any Guarantor such consolidation, merger, sale or transfer shall be upon the conditions that the due and punctual payment of the principal and accrued interest on any Loans made to sellsuch Subsidiary Borrower, lease and the due and punctual performance and observance of all the terms, covenants and conditions of this Credit Agreement to be kept or otherwise performed by such Subsidiary Borrower shall, by an agreement supplemental hereto (which supplemental agreement shall be in form and substance satisfactory to the Administrative Agent and shall become effective upon satisfaction or waiver of the conditions described in Section 5.1(b), (c), (d) and (e) in a form appropriate to such supplemental agreement), be assumed by the corporation (other than such Subsidiary Borrower) formed by or resulting from any such consolidation or merger, or which shall have received the transfer of all or substantially all of its the property and assets to another Person unlessof the Subsidiary Borrower, immediately after giving effect to just as fully and effectually as if such salesuccessor had been the original Subsidiary Borrower; and in the event of any such sale or transfer the predecessor Subsidiary Borrower may be dissolved, lease wound up and liquidated at any time thereafter. In addition, in connection with marketing alliances or other transfer, none promotional arrangements undertaken by one or both of the Guaranty Coverage Percentages is less than Subsidiary Borrowers, the Required PercentageSubsidiary Borrowers may from time to time issue preferred stock to any Person, whether or not affiliated with the Company, having an aggregate liquidation preference (as to both Subsidiary Borrowers) that, together with the aggregate amount of Debt (determined without regard to the clauses (c) through and including (h) of the proviso of the definition of the term “Debt”) secured by Liens permitted under the second sentence of Section 6.6, does not exceed $600,000,000 (or its equivalent in any other currency) at any one time outstanding. Notwithstanding anything in this Section 6.7 to the contrary, Allstate Insurance may transfer ownership of Allstate Life to the Company or to any other Wholly-Owned Subsidiary of the Company." (17) Section 5.7 is amended and restated in its entirety to read as follows:

Consolidations, Mergers and Sales of Assets. The Borrower Neither Concord nor any Ten Percent Subsidiary will not (i) consolidate or merge with or into any Person, other Person or (ii) sell, lease or otherwise transfer transfer, directly or indirectly, all or substantially all any substantial part of the assets of Concord or such Ten Percent Subsidiary, as the case may be, and its assets Subsidiaries, taken as a whole, to any other Person, nor will Concord or (iii) sell, transfer or otherwise dispose any Ten Percent Subsidiary permit any of its interest Subsidiaries to do any of the foregoing if the effect thereof is to reduce the total assets or net income of Concord or such Ten Percent Subsidiary (in any Guarantoreach case, on a consolidated basis for Concord or such Ten Percent Subsidiary, as the case may be, and its Subsidiaries) by more than 25% of such assets existing on, or net income generated during the four consecutive fiscal quarters ending immediately prior to, the date of such consolidation, merger, sale, lease or other transfer; provided that Concord or such Ten Percent Subsidiary, as the case may be, may merge with another Person if (x) Concord or such Ten Percent Subsidiary, as the Borrower case may merge with any Wholly-Owned Consolidated Subsidiary (other than a Guarantor or a Subsidiary of a Guarantor) if immediately after such merger no Default shall have occurred and be continuing and such Wholly-Owned Consolidated Subsidiary shall expressly assume in writing all of the obligations of the Borrower hereunderbe, and under the Notes (if any), and (y) the Borrower may merge with any other Person (other than a Guarantor or a Subsidiary of a Guarantor) if (A) the Borrower is the corporation surviving such merger and (By) immediately after giving effect to such merger, no Default shall have occurred and be continuing; provided, further that any Ten Percent Subsidiary may merge with any other Subsidiary or with Concord, as long as a Ten Percent Subsidiary or Concord is the entity surviving such merger. The Borrower Concord will not transfer ownership, or permit (1) any Guarantor to consolidate the transfer of ownership, of the equity interests in CCS or merge with Star if the effect thereof is that CCS or into any other Person unless Star, as the Guarantor is the surviving entitycase may be, (2) any becomes a Subsidiary of any Guarantor to consolidate national bank or merge with federal savings bank that is a Subsidiary of Concord; in addition, Concord will not transfer ownership, or into permit the transfer of ownership, of the equity interests of any other Person unlessSignificant Subsidiary (other than CCS or Star), immediately after giving effect whether such Significant Subsidiary exists on the date hereof or hereafter arises, to such consolidation a national bank or merger, none of the Guaranty Coverage Percentages federal savings bank that is less than the Required Percentage, (3) any Guarantor to sell, lease or otherwise transfer all or substantially all of its assets to any other Person, or (4) any a Subsidiary of any Guarantor Concord, if the intent of such transfer is to sell, lease or otherwise transfer all or substantially all of its assets circumvent the representations and covenants applicable to another Person unless, immediately after giving effect Significant Subsidiaries in the Operative Documents (as opposed to such sale, lease or other transfer, none of the Guaranty Coverage Percentages is less than the Required Percentagean independent business purpose)." (17) Section 5.7 is amended and restated in its entirety to read as follows:

Consolidations, Mergers and Sales of Assets. The Borrower Company will not, and will not (i) permit any of its Subsidiaries to, consolidate or merge with or into any Person, (ii) sell, lease or otherwise transfer all or substantially all of its assets to any other Person, or (iii) sell, transfer permit any other Person to merge into or otherwise dispose of its interest in any Guarantorconsolidate with it; provided that (i) the Company may merge, consolidate or amalgamate with another Person, if (x) the Borrower may merge with any Wholly-Owned Consolidated Subsidiary (other than a Guarantor or a Subsidiary of a Guarantor) if immediately after such merger no Default shall have occurred and be continuing and such Wholly-Owned Consolidated Subsidiary shall expressly assume in writing all of the obligations of the Borrower hereunder, and under the Notes (if any), and (y) the Borrower may merge with any other Person (other than a Guarantor or a Subsidiary of a Guarantor) if (A) the Borrower Company is the corporation entity surviving such merger and (By) immediately after giving effect to such merger, no Default or Event of Default shall have occurred and be continuing, (ii) any Subsidiary may merge, consolidate or amalgamate with or into another Person, if (x) such Subsidiary survives (or, in the case of an amalgamation, continues immediately following) such merger, consolidation or amalgamation and (y) immediately after giving effect to such merger, consolidation or amalgamation, no Default or Event of Default shall have occurred and be continuing, (iii) Wholly-Owned Subsidiaries of the Company may merge, consolidate or amalgamate with one another provided that if one of such Subsidiaries is a Designated Subsidiary Account Party and the other is not, then the Designated Subsidiary Account Party must be the surviving entity of such merger and (iv) a Subsidiary (other than a Designated Subsidiary Account Party) of the Company may merge, consolidate or amalgamate with any other Person if immediately after giving effect to such merger no Default or Event of Default shall have occurred and be continuing. The Borrower In addition, the Company will not not, nor will it permit any of its Subsidiaries to, sell, convey, assign, lease, abandon or otherwise transfer or dispose of, voluntarily or involuntarily, any of its properties or assets, tangible or intangible (each, a “Disposition”) (other than Unrestricted Margin Stock), except (a) (1) such dispositions by the Company or any Guarantor of its Subsidiaries of any of their respective properties or assets to consolidate the Company or merge with or into any other Person unless Subsidiary of the Guarantor is the surviving entity, Company and (2) such dispositions by IPC or any of its Subsidiaries of any of their respective properties or assets to IPC or any of its other Subsidiaries; (b) subject to Section 5.05, the dissolution, liquidation or winding up of any Subsidiary other than a Designated Subsidiary Account Party; (c) Dispositions of used, worn out, obsolete or surplus property of the Company or any Subsidiary in the ordinary course of business and the assignment, cancellation, abandonment or other disposition of intellectual property that is, in the reasonable judgment of the Company, no longer economically practicable to maintain or useful in the conduct of the business of the Company and the Subsidiaries, taken as a whole; (d) licenses (as licensor) of intellectual property so long as such licenses do not materially interfere with the business of the Company or any of its Subsidiaries, taken as a whole; (e) Dispositions of cash, cash equivalents and investment securities (including pursuant to any securities lending arrangements permitted by clause (u) of Section 6.03 and including in connection with the posting of collateral (or the realization thereof) under the Five-Year Unsecured Revolving Credit and Letter of Credit Facility, the IPC Facility, the Xxxxx’x XX Facility or any other secured Indebtedness permitted hereunder); (f) releases, surrenders or waivers of contracts, torts or other claims of any Guarantor to consolidate kind as a result of the settlement of any litigation or merge threatened litigation; (g) the granting or existence of Liens permitted under this Agreement; (h) licenses, sublicenses, leases or subleases of property so long as such licenses, sublicenses, leases or subleases do not materially interfere with the business of the Company and its Subsidiaries, taken as a whole; (i) 4849-0866-3397v970 #4849-0866-3397v1 Dividends permitted under Section 6.08; (j) ceding of insurance or into any reinsurance in the ordinary course of business; (k) other Person unless, Dispositions of assets with a fair market value (as reasonably determined by the board of directors or senior management of the Company) which in the aggregate do not exceed 10% of the lesser of the book or fair market value of the property and assets of the Company determined on a consolidated basis as of the last day of the previous fiscal year of the Company; provided that immediately after giving effect (including pro forma effect) to any Disposition made pursuant to this clause (k), no Event of Default under Section 7.03 relating solely to a breach of Section 6.10 or 6.11 shall have occurred and be continuing; (l) dispositions of property as a result of a casualty event involving such consolidation property or mergerany disposition of real property to a Governmental Authority as a result of a condemnation of such real property; (m) sales or other Dispositions of non-core assets acquired in an acquisition permitted under this agreement; provided that such sales shall be consummated within 360 days of such acquisition; and (n) any Disposition of property or series of related Dispositions of or in respect of which the fair market value of such property and the consideration payable to the Company or any of its Subsidiaries is equal to or less than $100,000; provided that, none for the avoidance of doubt, Dispositions of Collateral shall only be made to the extent permitted under Section 4.04 of the Guaranty Coverage Percentages is less than the Required Percentage, (3) any Guarantor to sell, lease Security Agreement and this Section 6.02 shall not serve as a waiver or otherwise transfer all or substantially all of its assets to any other Person, or (4) any Subsidiary of any Guarantor to sell, lease or otherwise transfer all or substantially all of its assets to another Person unless, immediately after giving effect to such sale, lease or other transfer, none modification of the Guaranty Coverage Percentages is less than the Required Percentagerequirements under Section 2.10(b)." (17) Section 5.7 is amended and restated in its entirety to read as follows:

Consolidations, Mergers and Sales of Assets. The Borrower Company will not, and will not (i) permit any of its Subsidiaries to, consolidate or merge with or into any Person, (ii) sell, lease or otherwise transfer all or substantially all of its assets to any other Person, or (iii) sell, transfer permit any other Person to merge into or otherwise dispose of its interest in any Guarantorconsolidate with it; provided that (i) the Company may merge, consolidate or amalgamate with another Person, if (x) the Borrower may merge with any Wholly-Owned Consolidated Subsidiary (other than a Guarantor or a Subsidiary of a Guarantor) if immediately after such merger no Default shall have occurred and be continuing and such Wholly-Owned Consolidated Subsidiary shall expressly assume in writing all of the obligations of the Borrower hereunder, and under the Notes (if any), and (y) the Borrower may merge with any other Person (other than a Guarantor or a Subsidiary of a Guarantor) if (A) the Borrower Company is the corporation entity surviving such merger and (By) immediately after giving effect to such merger, no Default or Event of Default shall have occurred and be continuing, (ii) any Subsidiary may merge, consolidate or amalgamate with or into another Person, if (x) such Subsidiary survives (or, in the case of an amalgamation, continues immediately following) such merger, consolidation or amalgamation and (y) immediately after giving effect to such merger, consolidation or amalgamation, no Default or Event of Default shall have occurred and be continuing, (iii) Wholly-Owned Subsidiaries of the Company may merge, consolidate or amalgamate with one another provided that if one of such Subsidiaries is a Designated Subsidiary Account Party and the other is not, then the Designated Subsidiary Account Party must be the surviving entity of such merger and (iv) a Subsidiary (other than a Designated Subsidiary Account Party) of the Company may merge, consolidate or amalgamate with any other Person if immediately after giving effect to such merger no Default or Event of Default shall have occurred and be continuing. The Borrower In addition, the Company will not not, nor will it permit any of its Subsidiaries to, sell, convey, assign, lease, abandon or otherwise transfer or dispose of, voluntarily or involuntarily, any of its properties or assets, tangible or intangible (each, a “Disposition”) (other than Unrestricted Margin Stock), except (a) (1) such dispositions by the Company or any Guarantor of its Subsidiaries of any of their respective properties or assets to consolidate the Company or merge with or into any other Person unless Subsidiary of the Guarantor is the surviving entity, Company and (2) such dispositions by IPC or any of its Subsidiaries of any of their respective properties or assets to IPC or any of its other Subsidiaries; (b) subject to Section 5.05, the dissolution, liquidation or winding up of any Subsidiary other than a Designated Subsidiary Account Party; (c) Dispositions of any Guarantor to consolidate used, worn out, obsolete or merge with or into any other Person unless, immediately after giving effect to such consolidation or merger, none surplus property of the Guaranty Coverage Percentages is less than the Required Percentage, (3) any Guarantor to sell, lease Company or otherwise transfer all or substantially all of its assets to any other Person, or (4) any Subsidiary in the ordinary course of any Guarantor to sellbusiness and the assignment, lease or otherwise transfer all or substantially all of its assets to another Person unlesscancellation, immediately after giving effect to such sale, lease abandonment or other transferdisposition of intellectual property that is, none in the reasonable judgment of the Guaranty Coverage Percentages is less than Company, no longer economically practicable to maintain or useful in the Required Percentage." conduct of the business of the Company and the Subsidiaries, taken as a whole; (17d) Section 5.7 is amended and restated in its entirety to read licenses (as follows:licensor) of intellectual property so long as such licenses do not

Consolidations, Mergers and Sales of Assets. The Borrower will not (i) not, nor will it permit any Subsidiary to, consolidate or merge with or into any Personinto, (ii) or sell, lease or otherwise transfer all or substantially all any substantial part of its assets to to, any other Person, or discontinue or eliminate any business line or segment, provided that: (iiia) sell, transfer any Subsidiary may merge or otherwise dispose of its interest in any Guarantor; provided that (x) consolidate with or into the Borrower may merge with or any Wholly-Owned Consolidated Subsidiary so long as in (i) any merger or consolidation involving the Borrower, the Borrower shall be the surviving or continuing corporation and (ii) in any merger or consolidation involving a Wholly-Owned Subsidiary (and not the Borrower), the Wholly-Owned Subsidiary shall be the surviving or continuing corporation or limited liability company. (b) the foregoing limitation on the sale, lease or other than transfer of assets and on the discontinuation or elimination of a business line or segment, and the limitations on the dissolution or liquidation of Subsidiaries in Section 6.8, shall not prohibit the following: (i) sales of inventory in the ordinary course of business; (ii) leases, sales or other dispositions of Property that, together with all other Property of the Borrower and its Subsidiaries previously leased, sold or disposed of as permitted by this clause (ii) during any Fiscal Year do not constitute a Substantial Portion of the Property of the Borrower and its Subsidiaries, provided that, after giving effect to any such lease, sale or other disposition, no Default or Unmatured Default shall have occurred and be continuing; (iii) any transfer of an interest in accounts or notes receivable and related assets permitted under Section 6.17; (iv) any transfer of assets pursuant to an Investment permitted under Section 6.5. (v) the dissolution or liquidation of any Subsidiary if its assets are transferred to the Borrower or to a Guarantor that is a Domestic Subsidiary, and any other transfer of assets from any Subsidiary to the Borrower or to a Guarantor that is a Domestic Subsidiary; or (vi) the dissolution or liquidation of any Subsidiary of Modine Holding GmbH if its assets are transferred to any other Subsidiary of the Borrower, and any other transfer of assets from any Subsidiary of Modine Holding GmbH to the Borrower or any Subsidiary. (c) The foregoing limitation on the discontinuation or elimination of any business line or segment shall not prohibit the liquidation and dissolution of any Subsidiary or the discontinuation or elimination of any business line or segment, provided that (i) the Borrower shall have reasonably determined that such business line or segment being discontinued or eliminated is a Guarantornon-core business of the Borrower and its Subsidiaries, (ii) if immediately any sale of assets relating to any discontinuation or elimination of any business line or segment or any liquidation or dissolution of any Subsidiary shall be subject to the limitation on the sale, lease or other transfer of assets described in Section 6.9(b) and the other terms of this Agreement, and (iii) after giving effect to any such merger liquidation or dissolution or discontinuation or elimination of any business line or segment, no Default or Unmatured Default shall have occurred and be continuing and such Wholly-Owned Consolidated Subsidiary shall expressly assume in writing all of the obligations of the Borrower hereunder, and under the Notes (if any), and (y) the Borrower may merge with any other Person (other than a Guarantor or a Subsidiary of a Guarantor) if (A) the Borrower is the corporation surviving such merger and (B) immediately after giving effect to such merger, no Default shall have occurred and would be continuing. The Borrower will not permit (1) any Guarantor to consolidate or merge with or into any other Person unless the Guarantor is the surviving entity, (2) any Subsidiary of any Guarantor to consolidate or merge with or into any other Person unless, immediately after giving effect to such consolidation or merger, none of the Guaranty Coverage Percentages is less than the Required Percentage, (3) any Guarantor to sell, lease or otherwise transfer all or substantially all of its assets to any other Person, or (4) any Subsidiary of any Guarantor to sell, lease or otherwise transfer all or substantially all of its assets to another Person unless, immediately after giving effect to such sale, lease or other transfer, none of the Guaranty Coverage Percentages is less than the Required Percentagecaused thereby." (17) Section 5.7 is amended and restated in its entirety to read as follows:

Consolidations, Mergers and Sales of Assets. The Neither ------------------------------------------- the Indirect Parent nor the Borrower will, nor will not (i) either of them permit any Subsidiary to, consolidate or merge with or into any Personinto, (ii) or sell, lease or otherwise transfer all or substantially all any substantial part of its assets to to, any other Person, or (iii) selldiscontinue or eliminate any business line or segment, transfer or otherwise dispose of its interest in any Guarantor; provided that (xa) the -------- Borrower may merge with any Wholly-Owned Consolidated Subsidiary another Person if (other than a Guarantor or a Subsidiary of a Guarantori) if immediately after such merger no Default shall have occurred and be continuing and such Wholly-Owned Consolidated Subsidiary shall expressly assume in writing all Person was organized under the laws of the obligations United States of the Borrower hereunderAmerica or one of its states, and under the Notes (if any), and (y) the Borrower may merge with any other Person (other than a Guarantor or a Subsidiary of a Guarantor) if (Aii) the Borrower is the corporation surviving such merger and (Biii) immediately after giving effect to such merger, no Default shall have occurred and be continuing. The , (b) Wholly-Owned Subsidiaries of the Borrower will not permit (1) any Guarantor to consolidate or may merge with and into the Borrower or into any other Person unless the Guarantor is the surviving entityGuarantor, (2c) assets may be transferred from a Subsidiary, the Indirect Parent or the Borrower (provided that any Subsidiary of any Guarantor to consolidate or merge with or into any other Person unless, immediately after giving effect to such consolidation or merger, none transfer of the Guaranty Coverage Percentages is less than assets of the Required PercentageBorrower, (3) any Guarantor to sellwhether by a single transaction or several transactions taken as a whole, lease or otherwise transfer must not consist of all or substantially all of its assets the Borrower's assets) to any other Personthe Borrower or a Guarantor, or (4d) any Wholly-Owned Subsidiary (other than the Borrower) may dissolve or liquidate so long as the assets of any Guarantor such Subsidiary at the time of such dissolution or liquidation are transferred to sell, lease or otherwise transfer all or substantially such Subsidiary's shareholder and such shareholder assumes all of its assets to another Person unlessthe liabilities of such Subsidiary at the time of such dissolution or liquidation, immediately after giving effect to such (e) the Indirect Parent, the Borrower and their Subsidiaries may factor with recourse receivables provided that (x) not more than $25,000,000 in factored receivables with recourse may, in the aggregate, be outstanding at any given time, and (y) there shall be no limitation on the factoring of receivables without recourse, and (f) the foregoing limitation on the sale, lease or other transfertransfer of assets and on the discontinuation or elimination of a business line or segment shall not prohibit, none during any Fiscal Quarter, a transfer of assets by the Borrower or any Subsidiary or the discontinuance or elimination of a business line or segment (in a single transaction or in a series of related transactions) unless the aggregate assets to be so transferred or utilized in a business line or segment to be so discontinued, when combined with all other assets transferred, and all other assets utilized in all other business lines or segments discontinued, during such Fiscal Quarter and the immediately preceding seven Fiscal Quarters, either (x) constituted more than 5% of Consolidated Total Assets at the end of the Guaranty Coverage Percentages is less eighth Fiscal Quarter immediately preceding such Fiscal Quarter, or (y) contributed more than 10% of Consolidated Operating Profits during the Required Percentageeight Fiscal Quarters immediately preceding such Fiscal Quarter." (17) Section 5.7 is amended and restated in its entirety to read as follows:

Consolidations, Mergers and Sales of Assets. (a) The Borrower will not (i) consolidate or merge with or into any Person, (ii) other Person or sell, lease or otherwise transfer all or substantially all any substantial part of its assets to any other Person, Person or (iiiii) sell, transfer or otherwise dispose of its interest in permit any Guarantor; provided that (x) the Borrower may merge with any Wholly-Owned Consolidated Material Subsidiary (other than a Guarantor Subsidiary Guarantor) to consolidate or merge with or into, or transfer all or any substantial part of its assets to, any Person other than the Borrower or a Subsidiary of a Guarantor) if immediately after such merger no Default shall have occurred and be continuing and such Wholly-Owned Consolidated Subsidiary; provided that the Borrower or a Material Subsidiary shall expressly assume in writing all other than Perini Land and Development may sell or otherwise transfer assets if Aggregate Asset Sale Proceeds after such sale less Aggregate Reinvested Proceeds does not at any time exceed $15,000,000. "Aggregate Asset Sale Proceeds" means the sum of the obligations proceeds of each sale in a single transaction or series of related transactions by the Borrower or any Subsidiary, on or after the Bridge Effective Date, of fixed assets yielding proceeds in excess of 5% of the Borrower hereunder, and under Consolidated Tangible Net Worth of the Notes (if any), and (y) Borrower. "Aggregate Reinvested Proceeds" means the amount of Aggregate Asset Sale Proceeds used to purchase fixed assets for use in the same general business presently conducted by the Borrower or the Subsidiary that realized such proceeds, as the case may merge with any other Person (other than a Guarantor or a Subsidiary be, provided such proceeds are so used within 18 months of a Guarantor) if (A) the Borrower is the corporation surviving such merger and (B) immediately after giving effect to such merger, no Default shall have occurred and be continuingreceipt thereof. The Borrower will not permit (1) any Subsidiary Guarantor to consolidate or merge with or into into, or transfer all or any other Person unless substantial part of its assets to, any Person; provided that the Guarantor is the surviving entity, foregoing shall not prohibit (2i) any Subsidiary of any Guarantor to consolidate or merge with or into any other Person unlessfrom selling, immediately after giving effect to such consolidation or merger, none of the Guaranty Coverage Percentages is less than the Required Percentage, (3) any Guarantor to sell, lease leasing or otherwise transfer all transferring assets in the ordinary course of its business or substantially (ii) R. E. Xxxxxx & Co. from transferring all of its assets to any other Person, or (4) any Subsidiary of any Guarantor to sell, lease or otherwise transfer all or substantially all of its assets to another Person unless, immediately after giving effect to such sale, lease or other transfer, none of the Guaranty Coverage Percentages is less than the Required PercentagePerini Building Company." (17) Section 5.7 is amended and restated in its entirety to read as follows: