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

Merger, Consolidation or Sale of Assets. The Company shall not consolidate or merge with or into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another Person unless (a) the Company is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, (b) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, (c) immediately after such transaction no Default or Event of Default exists and (d) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof. In connection with any consolidation, merger or disposition contemplated by this provision, the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied with.

Merger, Consolidation or Sale of Assets. The Company Issuer shall not consolidate or merge with or into (whether or not the Company Issuer is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another Person unless (ai) the Company Issuer is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the CompanyIssuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or and existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the Person formed by or surviving any such consolidation or merger (if other than the Company) such Issuer), or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made made, assumes all the obligations of the Company Issuer under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, ; (ciii) immediately after such transaction transaction, no Default or Event of Default exists exists; and (div) except in the case of a merger of the Company Issuer with or into a one of its Wholly Owned Restricted Subsidiary of the CompanySubsidiaries, the Company Issuer or the Person formed by or surviving any such consolidation or merger (if other than the CompanyIssuer), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) willmade, shall, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted have a Consolidated Net Worth in an amount which is not less than the Consolidated Net Worth of the Issuer immediately prior to incur at least $1.00 such transaction. Notwithstanding the foregoing clauses (iii) and (iv), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of additional Indebtedness pursuant its properties and assets to the Consolidated Interest Coverage Ratio test set forth Issuer and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in the first paragraph of Section 4.09 hereofanother jurisdiction. In connection with any consolidationthe case of a sale, merger assignment, lease, transfer, conveyance or other disposition contemplated by this provisionof all or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Company Issuer shall deliver, or cause to be delivered, discharged from all further liability and obligation under this Indenture. Prior to the Trusteeproposed transaction, in form and substance reasonably satisfactory the Issuer shall deliver to the Trustee, Trustee an Officers' Certificate and an Opinion of Counsel, each stating of which shall state that such consolidation, merger or disposition transfer and the such supplemental indenture in respect thereto comply with this provision Article 5 and that all conditions precedent in the Indenture herein provided for relating to such transaction or transactions have been complied with.

Merger, Consolidation or Sale of Assets. The Company shall may not consolidate or merge with or into (whether or not the Company is the surviving corporationentity), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactionstransactions to, to another Person unless (a) the Company is the surviving corporation Person or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (b) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Notes and this Indenture Company, pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, under the Notes and this Indenture; (c) immediately after such transaction no Default or Event of Default exists exists; and (d) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (Ai) will shall have Consolidated Net Worth immediately after the transaction equal (but prior to any purchase accounting adjustments or greater accrual of deferred tax liabilities resulting from the transaction) not less than the Consolidated Net Worth of the Company immediately preceding the transaction and (Bii) willwould, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Indebtedness to Cash Flow Ratio test set forth in the first paragraph of Section 4.09 hereof4.09. In connection with any consolidation, merger or disposition contemplated by this provisionNotwithstanding the foregoing, the Company shall deliver, may merge with another Person if (a) the Company is the surviving Person; (b) the consideration issued or cause to be delivered, to paid by the Trustee, Company in form such merger consists solely of Equity Interests (other than Disqualified Stock) of the Company or Equity Interests of EchoStar; and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating (c) immediately after giving effect to such transaction or transactions have been complied withmerger, the Company's Indebtedness to Cash Flow Ratio does not exceed the Company's Indebtedness to Cash Flow Ratio immediately prior to such merger.

Merger, Consolidation or Sale of Assets. The Company shall may not consolidate or merge with or into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another Person unless (ai) the Company is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Registration Rights Agreement, the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, ; (ciii) immediately after such transaction no Default or Event of Default exists exists; and (div) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) willmade, at the time of such transaction and after giving pro forma effect thereto to such transaction as if such transaction had occurred at the beginning of the applicable four-quarter period, most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding such transaction either: (A) would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereofor (B) would have a pro forma Fixed Charge Coverage Ratio that is greater than the actual Fixed Charge Coverage Ratio for the same four-quarter period without giving pro forma effect to such transaction. In connection with Notwithstanding clause (iv) in the immediately foregoing paragraph, (i) any consolidationRestricted Subsidiary may consolidate with, merger merge into or disposition contemplated by this provision, transfer all or part of its properties and assets to the Company; and (ii) the Company shall deliver, may merge with an Affiliate that has no significant assets or cause to be delivered, to liabilities and was incorporated solely for the Trustee, purpose of reincorporating the Company in form another State of the United States so long as the amount of Indebtedness of the Company and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied withits Restricted Subsidiaries is not increased thereby.

Merger, Consolidation or Sale of Assets. The Company shall may not consolidate or merge with or into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person or entity unless (ai) the Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the entity or Person formed by or surviving any such consolidation or merger (if other than the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Senior Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, ; (ciii) immediately after such transaction no Default or Event of Default exists and exists; (div) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof. In connection with any consolidation, merger or disposition contemplated by this provision, hereof and (v) the Company shall deliver, or cause to be delivered, has delivered to the Trustee, in form and substance reasonably satisfactory to the Trustee, Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger merger, sale, assignment, transfer, lease, conveyance or other disposition and the such supplemental indenture in respect thereto comply complies with this provision Article and that all conditions precedent in the Indenture herein provided for relating to such transaction or transactions have been complied with.

Merger, Consolidation or Sale of Assets. The Company shall not consolidate or merge with or into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person or entity unless (ai) the Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the entity or Person formed by or surviving any such consolidation or merger (if other than the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Notes Notes, the Indenture and this Indenture the Registration Rights Agreement pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, ; (ciii) immediately after such transaction no Default or Event of Default exists exists; and (div) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of such transaction both immediately prior to and immediately after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Debt to Cash Flow Ratio test set forth in the first paragraph of Section 4.09 hereof. In connection with any consolidation, merger or disposition contemplated by this provision, the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied with.

Merger, Consolidation or Sale of Assets. The Company shall may not consolidate or merge with or into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person or entity unless (ai) the Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the entity or Person formed by or surviving any such consolidation or merger (if other than the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, ; (ciii) immediately after such transaction no Default or Event of Default exists exists; and (div) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) willmade, at the time of such transaction and after giving pro forma effect thereto to such transaction as if such transaction had occurred at the beginning of the applicable four-quarter period, most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding such transaction either (A) would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereofor (B) would have a pro forma Fixed Charge Coverage Ratio that is greater than the actual Fixed Charge Coverage Ratio for the same four-quarter period without giving pro forma effect to such transaction. In connection with Notwithstanding clause (iv) in the immediately foregoing paragraph, (i) any consolidationRestricted Subsidiary may consolidate with, merger merge into or disposition contemplated by this provision, transfer all or part of its properties and assets to the Company shall deliver, and (ii) the Company may merge with an Affiliate that has no significant assets or cause to be delivered, to liabilities and was incorporated solely for the Trustee, purpose of reincorporating the Company in form another State of the United States so long as the amount of Indebtedness of the Company and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied withits Restricted Subsidiaries is not increased thereby.

Merger, Consolidation or Sale of Assets. The Company Issuer shall not consolidate or merge with or into (whether or not the Company Issuer is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another Person unless (ai) the Company Issuer is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the CompanyIssuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or and existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the Person formed by or surviving any such consolidation or merger (if other than the Company) such Issuer), or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made made, assumes all the obligations of the Company Issuer under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, ; (ciii) immediately after such transaction transaction, no Default or Event of Default exists exists; and (div) except in the case of a merger of the Company Issuer with or into a one of its Wholly Owned Restricted Subsidiary of the CompanySubsidiaries, the Company Issuer or the Person formed by or surviving any such consolidation or merger (if other than the CompanyIssuer), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) willmade, shall, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, (A) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in the first paragraph of Section 4.09 hereofhereof and (B) have a Consolidated Net Worth in an amount which is not less than the Consolidated Net Worth of the Issuer immediately prior to such transaction. Notwithstanding the foregoing clauses (iii) and (iv), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Issuer and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another jurisdiction. In connection with any consolidationthe case of a sale, merger assignment, lease, transfer, conveyance or other disposition contemplated by this provisionof all or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Company Issuer shall deliver, or cause to be delivered, discharged from all further liability and obligation under this Indenture. Prior to the Trusteeproposed transaction, in form and substance reasonably satisfactory the Issuer shall deliver to the Trustee, Trustee an Officers' Certificate and an Opinion of Counsel, each stating of which shall state that such consolidation, merger or disposition transfer and the such supplemental indenture in respect thereto comply with this provision Article 5 and that all conditions precedent in the Indenture herein provided for relating to such transaction or transactions have been complied with.

Merger, Consolidation or Sale of Assets. The Company shall not not, directly or indirectly, consolidate or merge with or into another Person (whether or not the Company is the surviving corporation), ) or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets assets, in one or more related transactions, to another Person Person, unless (ai) the Company is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, (bii) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Registration Rights Agreement, the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, (ciii) immediately after such transaction no Default or Event of Default exists and exists, (div) except in the case of a the amalgamation, consolidation or merger of the Company with or into a Wholly Owned Restricted Subsidiary or with or into any Person solely for the purpose of effecting a change in the state of incorporation of the Company, the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company)) shall, or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after on the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time date of such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Expense Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof. In connection with any consolidation, merger or disposition contemplated by this provision, and (v) the Company shall deliver, or cause to be delivered, have delivered to the Trustee, in form and substance reasonably satisfactory to the Trustee, Trustee an Officers' Officer's Certificate and an Opinion of Counsel, each stating that such consolidation, merger merger, sale, assignment, transfer, conveyance or other disposition and the supplemental indenture in respect thereto comply complies with this provision and that Indenture. In addition, the Company shall not, directly or indirectly, lease all conditions precedent or substantially all of its properties or assets, in one or more related transactions, to any other Person. The provisions of this Section 5.01 shall not be applicable to a sale, assignment, transfer, conveyance or other disposition of assets by the Indenture provided for relating Company to such transaction or transactions have been complied withany of its Wholly Owned Restricted Subsidiaries.

Merger, Consolidation or Sale of Assets. The Except as otherwise provided in Section 11.06, the Company and any Guarantor shall not not, directly or indirectly, consolidate or merge with or into (whether or not the Company or such Guarantor is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets assets, in one or more related transactions, to another Person unless unless: (ai) the Company or such Guarantor is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the CompanyCompany or such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation or other legal entity organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the Person formed by or surviving any such consolidation or merger (if other than the CompanyCompany or such Guarantor) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company or such Guarantor under the Registration Rights Agreement, the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, ; (ciii) immediately after such transaction no Default or Event of Default exists exists; and (div) except in the case of a merger of the Company or a Guarantor with or into a Wholly Owned Restricted Subsidiary of the Company or a Guarantor, or the merger or consolidation of a Restricted Subsidiary with or into the Company or a transfer of all or substantially all of the assets of a Restricted Subsidiary to the Company, the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth will, immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof. In connection with any consolidation, merger or disposition contemplated by this provisionaddition, the Company shall delivernot, directly or cause to be deliveredindirectly, lease all or substantially all of its properties or assets, in one or more related transactions, to any other Person. The provisions of this Section 5.01 shall not be applicable to a sale, assignment, transfer, conveyance or other disposition of assets between or among the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition Company and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied withGuarantors.

Merger, Consolidation or Sale of Assets. (a) The Company Borrower shall not not, consolidate or merge with or into (whether or not the Company Borrower is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactionstransactions to, to another Person unless (ai) the Company Borrower is the surviving corporation Person or the Person formed by or surviving any such consolidation or merger (if other than the CompanyBorrower) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the Person formed by or surviving any such consolidation or merger (if other than the CompanyBorrower) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes by an assignment and assumption agreement in form reasonably satisfactory to the Administrative Agent all the obligations of the Company Borrower under the Notes Notes, this Agreement and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, other Loan Documents; (ciii) immediately after such transaction no Default or Event of Default exists exists; and (div) except in the case of a merger of the Company Borrower with or into a Wholly Owned Restricted Subsidiary of the CompanyBorrower, the Company Borrower or the Person formed by or surviving any such consolidation or merger (if other than the CompanyBorrower), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth would, both immediately after the transaction equal prior to or greater than the Consolidated Net Worth of the Company and immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Debt to Cash Flow Ratio test set forth in the first paragraph of Section 4.09 7.2 hereof. In connection with any consolidation, merger or disposition contemplated by this provision, the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied with.

Merger, Consolidation or Sale of Assets. The Company shall not consolidate or merge with or into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactionstransactions to, to another Person unless (a) the Company is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, (b) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, (c) immediately after such transaction no Default or Event of Default exists and (d) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof, provided, however, that this clause (d) shall no longer be effective if the Terminated Covenants shall have terminated in accordance with Section 4.19 hereof. In connection with any consolidation, merger or disposition contemplated by this provision, the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, (i) an Officers' ’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the any supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied withwith and (ii) an Opinion of Counsel stating that the requirements of Section 5.01(a) and (b) have been satisfied.

Merger, Consolidation or Sale of Assets. The Company shall not consolidate or merge with or into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person or entity unless (ai) the Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the entity or Person formed by or surviving any such consolidation or merger (if other than the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Notes and this Indenture hereunder pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, ; (ciii) immediately after such transaction no Default or Event of Default exists exists; and (div) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will shall have Consolidated Net Worth immediately after the transaction equal to or greater than 90% of the Consolidated Net Worth of the Company immediately preceding the transaction and (B) willshall, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 4.09(a) hereof. In connection with any consolidation, merger or disposition contemplated by this provision, the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied withSECTION 5.02.

Merger, Consolidation or Sale of Assets. The Company shall not No Issuer shall, directly or indirectly, consolidate or merge with or into (whether or not the Company such Issuer is the surviving corporationentity), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its the properties or assets of the Issuers and their Restricted Subsidiaries, taken as a whole, in one or more related transactionstransactions to, to another Person unless unless: (i) either: (a) the Company such Issuer is the surviving corporation corporation; or (b) the Person formed by or surviving any such consolidation or merger (if other than the Companysuch Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation corporation, limited liability company or limited partnership organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the Person formed by or surviving any such consolidation or merger (if other than the Companysuch Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company Issuers under the Notes and Notes, this Indenture and the Registration Rights Agreement pursuant to a supplemental indenture in a form agreements reasonably satisfactory to the Trustee, ; (ciii) immediately after such transaction no Default or Event of Default exists exists; and (div) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company Issuers or the Person formed by or surviving any such consolidation or merger (if other than the CompanyIssuers), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after shall, on the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time date of such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter periodfiscal quarter, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Debt to Cash Flow Ratio test set forth in the first paragraph of Section 4.09 hereof. In connection with any consolidation, merger or disposition contemplated by this provisionaddition, the Company shall deliverIssuers may not, directly or cause to be deliveredindirectly, lease all or substantially all of their properties or assets, in one or more related transactions, to any other Person. The provisions of this Section 5.01 shall not apply to a sale, assignment, transfer, conveyance or other disposition of assets between or among the Trustee, in form Issuers and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion any of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied withtheir Restricted Subsidiaries.

Merger, Consolidation or Sale of Assets. The Company shall not (a) Neither of the Issuers shall, directly or indirectly, consolidate or merge with or into another Person (whether or not the Company such Issuer is the surviving corporation), survivor) or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets assets, in one or more related transactions, to another Person unless unless: (ai) the Company either (A) such Issuer is the surviving corporation entity of such transaction; or (B) the Person formed by or surviving any such consolidation or merger (if other than the Companysuch Issuer) or to which such sale, assignment, transfer, lease, -43- conveyance or other disposition shall have been made (the "SUCCESSOR COMPANY") is a corporation an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that EOTT Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Company remains a limited liability company; (bii) the Person formed by or surviving any such consolidation or merger (if other than the Companysuch Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company such Issuer under the Notes and this Indenture pursuant to a supplemental indenture indentures in a form forms reasonably satisfactory to the Trustee, ; (ciii) immediately after giving pro forma effect to such transaction transaction, no Default or Event of Default exists and exists; (div) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Companyimmediately after giving pro forma effect to such transaction, the Company such Issuer or the Person formed by or surviving any such consolidation or merger (if other than the Companysuch Issuer), or to which except in the case of such salea transaction involving EOTT Finance, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at on the time date of such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur Incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 5.12 hereof. In connection with any consolidation, merger or disposition contemplated by this provision, the Company shall deliver, or cause to be delivered, ; and (v) such Issuer has delivered to the Trustee, in form and substance reasonably satisfactory to the Trustee, Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the transfer and, if a supplemental indenture in respect thereto comply is required, such supplemental indenture complies with this provision Indenture and that all conditions precedent in the Indenture provided for therein relating to such transaction or transactions have has been complied withsatisfied.

Merger, Consolidation or Sale of Assets. The Company shall may not consolidate or merge with or into (whether or not the Company is the surviving corporationentity), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person or entity unless (ai) the Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the entity or Person formed by or surviving any such consolidation or merger (if other than the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Registration Rights Agreement, the Subordinated Notes and this Indenture pursuant to a supplemental indenture agreements in a form reasonably satisfactory to the Trustee, ; (ciii) immediately after such transaction no Default or Event of Default exists exists; and (div) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will shall have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) willshall, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof. In connection with any consolidation, merger or disposition contemplated by this provision, the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied with4.09.

Merger, Consolidation or Sale of Assets. The Company shall not consolidate or merge with or into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person or entity unless (ai) the Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the entity or Person formed by or surviving any such consolidation or merger (if other than the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, ; (ciii) immediately after such transaction no Default or Event of Default exists exists; and (div) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the CompanyCompany (other than a Receivables Subsidiary), the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than 95% of the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-fourth quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof. In connection with any consolidation, merger or disposition contemplated by this provision, the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied with.

Merger, Consolidation or Sale of Assets. The Company shall not consolidate or merge with or into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person or entity unless (ai) the Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the entity or Person formed by or surviving any such consolidation or merger (if other than the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Registration Rights Agreement, the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, ; (ciii) immediately after such transaction no Default or Event of Default exists exists; and (div) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof. In connection with any consolidation, merger or disposition contemplated by this provision, the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied with.

Merger, Consolidation or Sale of Assets. The Company shall not not, directly or indirectly, consolidate or merge with or into another Person (whether or not the Company is the surviving corporation), or sell, assign, transfer, leaseconvey, convey lease or otherwise dispose of all or substantially all of its the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person unless (ai) (A) the Company is the surviving corporation corporation, limited liability company, business trust or limited partnership; or (B) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation corporation, limited liability company, business trust or limited partnership organized or existing under the laws of the United States, any state thereof or the District of Columbia; provided that in the case of (A) or (B) above, if the surviving Person is a limited liability company, business trust or limited partnership, a corporation which is Wholly Owned Subsidiary of the surviving Person shall act as joint and several obligor with respect to the Notes; (bii) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Notes and Notes, this Indenture and the Registration Rights Agreement pursuant to a supplemental indenture in a form agreements reasonably satisfactory to the Trustee, ; (ciii) immediately after such transaction no Default or Event of Default exists exists; and (div) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made made: (A) will have a Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction transaction; and (B) will, at on the time date of such the transaction and after giving pro forma effect thereto to the transaction and any related financing transactions as if such transaction they had occurred at the beginning of the applicable four-quarter period, will be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof. In connection with any consolidation, merger or disposition contemplated by this provision, the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied with.

Merger, Consolidation or Sale of Assets. The Company shall may not consolidate or merge with or into (whether or not the Company is the surviving corporationentity), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactionstransactions to, to another Person unless (a) the Company is the surviving corporation Person or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (b) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Notes and this Indenture Company, pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, under the Notes and this Indenture; (c) immediately after such transaction no Default or Event of Default exists exists; and (d) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (Ai) will shall have Consolidated Net Worth immediately after the transaction equal (but prior to any purchase accounting adjustments or greater accrual of deferred tax liabilities resulting from the transaction) not less than the Consolidated Net Worth of the Company immediately preceding the transaction and (Bii) willwould, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Indebtedness to Cash Flow Ratio test set forth in Section 4.09. Notwithstanding the first paragraph of Section 4.09 hereof. In connection with any consolidation, merger or disposition contemplated by this provisionforegoing, the Company shall deliver, may merge with another Person if (a) the Company is the surviving Person; (b) the consideration issued or cause to be delivered, to paid by the Trustee, Company in form such merger consists solely of Equity Interests (other than Disqualified Stock) of the Company; and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating (c) immediately after giving effect to such transaction or transactions have been complied withmerger, the Company's Indebtedness to Cash Flow Ratio does not exceed the Company's Indebtedness to Cash Flow Ratio immediately prior to such merger.

Merger, Consolidation or Sale of Assets. The Company shall not consolidate or merge with or into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person or entity unless (ai) the Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the entity or Person formed by or surviving any such consolidation or merger (if other than the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations Obligations of the Company under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, ; (ciii) immediately after such transaction no Default or Event of Default exists and exists; (div) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Indebtedness to Adjusted Operating Cash Flow Ratio test set forth in Section 4.09(a) hereof and (v) each Subsidiary Guarantor, if any, unless it is the first paragraph of Section 4.09 hereof. In connection with any consolidation, merger or disposition contemplated by this provision, the Company shall deliver, or cause to be delivered, other party to the Trusteetransactions described above, in form and substance reasonably satisfactory shall have by supplemental indenture confirmed that its Subsidiary Guarantee shall apply to such Person's obligations under the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition Indenture and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied withNotes.

Merger, Consolidation or Sale of Assets. The Company shall not Neither Issuer may consolidate or merge with or into (whether or not the Company such Issuer is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person or entity unless (ai) the Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, 66 conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the entity or Person formed by or surviving any such consolidation or merger (if other than the Companysuch Issuer) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company Issuers under the Registration Rights Agreement, the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, ; (ciii) immediately prior thereto and immediately after such transaction no Default or Event of Default exists exists; and (div) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the CompanyCompany and except in the case of a merger entered into solely for the purpose of reincorporating the Company in another jurisdiction, the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, (x) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of the covenant described in Section 4.09 hereof4.9 hereof or (y) the Fixed Charge Coverage Ratio for the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the Company) would be greater than such ratio for the Company or such surviving entity immediately prior to such transaction. In connection with any consolidation, merger or disposition contemplated by this provisionNotwithstanding the foregoing, the Company shall deliverbe permitted to reorganize as a corporation in accordance with the procedures established in this Indenture, or cause to be delivered, provided that the Company shall have delivered to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and Trustee an Opinion of Counsel, each stating Counsel in the United States reasonably acceptable to the Trustee confirming that such consolidationreorganization is not adverse to Holders of the Notes (it being recognized that such reorganization shall not be deemed adverse to the Holders of the Notes solely because (i) of the accrual of deferred tax liabilities resulting from such reorganization or (ii) the successor or surviving corporation (a) is subject to income tax as a corporate entity or (b) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of the Code or any similar state or local law) and certain other conditions are satisfied. The entity or the Person formed by or surviving any consolidation or merger (if other than the Company) will succeed to, merger or disposition and be substituted for, and may exercise every right and power of, the supplemental indenture in respect thereto comply with Issuers under this provision and that all conditions precedent Indenture, but, in the Indenture provided for relating case of a lease of all or substantially all its assets, neither Issuer will be released from the obligation to such transaction or transactions have been complied withpay the principal of and interest on the Notes.

Merger, Consolidation or Sale of Assets. The Company Holdings shall not not, in a single transaction or series of related transactions, consolidate or merge with or into (whether or not the Company Holdings is the surviving corporation), or directly and/or indirectly through its Restricted Subsidiaries sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets determined on a consolidated basis for Holdings and its Restricted Subsidiaries taken as a whole in one or more related transactions, to another corporation, Person or entity unless (ai) the Company Holdings is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the CompanyHoldings) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the entity or Person formed by or surviving any such consolidation or merger (if other than the CompanyHoldings) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company Holdings, under the Notes Exchange Debentures and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, ; (ciii) immediately after such transaction no Default or Event of Default exists and exists; (div) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company Holdings or the entity or Person formed by or surviving any such consolidation or merger (if other than the CompanyHoldings), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will shall have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company Holdings immediately preceding the transaction and (B) willshall, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof. In connection with any consolidation, merger or disposition contemplated by this provision, the Company 4.10; and (v) Holdings shall deliver, or cause to be delivered, have delivered to the Trustee, in form and substance reasonably satisfactory to the Trustee, Trustee an Officers' Certificate and an Opinion of CounselCounsel addressed to the Trustee with respect to the foregoing matters; provided, each stating however, that such consolidation, the requirement set forth in clause (iv) above shall not apply to a merger between Holdings and any Wholly Owned Subsidiary or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied withany merger between Wholly Owned Subsidiaries.

Merger, Consolidation or Sale of Assets. The Company shall DBS Corp may not consolidate or merge with or into (whether or not the Company DBS Corp is the surviving corporationentity), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactionstransactions to, to another Person unless (a) the Company DBS Corp is the surviving corporation Person or the Person formed by or surviving any such consolidation or merger (if other than the CompanyDBS Corp) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (b) the Person formed by or surviving any such consolidation or merger (if other than the CompanyDBS Corp) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Notes and this Indenture DBS Corp, pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, under the Notes and this Indenture; (c) immediately after such transaction no Default or Event of Default exists exists; and (d) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company DBS Corp or the Person formed by or surviving any such consolidation or merger (if other than the CompanyDBS Corp), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (Ai) will shall have Consolidated Net Worth immediately after the transaction equal (but prior to any purchase accounting adjustments or greater accrual of deferred tax liabilities resulting from the transaction) not less than the Consolidated Net Worth of the Company DBS Corp immediately preceding the transaction and (Bii) willwould, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Indebtedness to Cash Flow Ratio test set forth in Section 4.9. Notwithstanding the first paragraph foregoing, DBS Corp may merge with another Person if (a) DBS Corp is the surviving Person; (b) the consideration issued or paid by DBS Corp in such merger consists solely of Section 4.09 hereof. In connection with any consolidation, merger or disposition contemplated by this provision, the Company shall deliver, or cause to be delivered, to the Trustee, in form Equity Interests (other than Disqualified Stock) of DBS Corp; and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating (c) immediately after giving effect to such transaction or transactions have been complied withmerger, DBS Corp's Indebtedness to Cash Flow Ratio does not exceed DBS Corp's Indebtedness to Cash Flow Ratio immediately prior to such merger.

Merger, Consolidation or Sale of Assets. The Company shall not consolidate or merge with or into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person or entity unless (ai) the Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the entity or Person formed by or surviving any such consolidation or merger (if other than the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations Obligations of the Company under the Notes and Notes, this Indenture and the Registration Rights Agreement pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, ; (ciii) immediately after such transaction no Default or Event of Default exists and exists; (div) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Indebtedness to Adjusted Operating Cash Flow Ratio test set forth in Section 4.09(a) hereof and (v) each Subsidiary Guarantor, if any, unless it is the first paragraph of Section 4.09 hereof. In connection with any consolidation, merger or disposition contemplated by this provision, the Company shall deliver, or cause to be delivered, other party to the Trusteetransactions described above, in form and substance reasonably satisfactory shall have by supplemental indenture confirmed that its Subsidiary Guarantee shall apply to such Person's obligations under the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition Indenture and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied withNotes.

Merger, Consolidation or Sale of Assets. The Company shall not consolidate or merge with or into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another Person unless (ai) the Company is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, (bii) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Notes and this Indenture pursuant to a supplemental indenture Indenture in a form reasonably satisfactory to the Trustee, (c) immediately after such transaction no Default or Event of Default exists and (diii) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, immediately after such transaction no Default or Event of Default exists and (iv) except in the case of a merger of the Company with or into a Wholly Owned Subsidiary of the Company, the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness (in addition to Permitted Indebtedness) pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 4.9(a) hereof. In connection with any consolidation, merger or disposition transfer contemplated by this provision, the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition transfer and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the this Indenture provided for relating to such transaction or transactions have been complied with.

Merger, Consolidation or Sale of Assets. The Company shall not not, directly or indirectly, consolidate or merge with or into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactionstransactions to, to another Person unless (ai) the Company is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, (bii) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Notes Notes, this Indenture, the Intercreditor Agreements and this Indenture the Security Agreements, pursuant to a supplemental indenture agreements in a form reasonably satisfactory to the Trustee, (ciii) immediately after such transaction transaction, no Default or Event of Default exists and (div) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will shall have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) willshall, at on the time date of such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Total Consolidated Interest Coverage Ratio Indebtedness to Adjusted Consolidated Operating Cash Flow ratio test set forth in the first paragraph of Section 4.09 hereof. In connection with any consolidation, merger or disposition contemplated by this provisionaddition, the Company shall delivernot, directly or cause to be deliveredindirectly, lease all or substantially all of its properties or assets, in one or more related transactions, to the Trustee, in form and substance reasonably satisfactory any other Person. The provisions of this Section 5.01 shall not be applicable to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such a consolidation, merger merger, sale, assignment, transfer, conveyance or other disposition of properties or assets between or among (i) the Company and its Wholly Owned Restricted Subsidiaries or (ii) the supplemental indenture in respect thereto comply with this provision Company and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied withHoldings.

Merger, Consolidation or Sale of Assets. The Company shall EchoStar may not consolidate or merge with or into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactionstransactions to, to another Person unless (a) the Company EchoStar is the surviving corporation Person or the Person formed by or surviving any such consolidation or merger (if other than the CompanyEchoStar) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (b) the Person formed by or surviving any such consolidation or merger (if other than the CompanyEchoStar) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Notes and this Indenture EchoStar, pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, under the Notes and this Indenture; (c) immediately after such transaction no Default or Event of Default exists exists; and (d) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company EchoStar or the Person formed by or surviving any such consolidation or merger (if other than the Company)merger, or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (Ai) will shall have Consolidated Net Worth immediately after the transaction equal (but prior to any purchase accounting adjustments or greater accrual of deferred tax liabilities resulting from the transaction) not less than the Consolidated Net Worth of the Company EchoStar immediately preceding the transaction and (Bii) will, at will have an Indebtedness to Cash Flow Ratio immediately after the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at that does not exceed EchoStar's Indebtedness to Cash Flow Ratio immediately preceding the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof. In connection with any consolidation, merger or disposition contemplated by this provision, the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied with.transaction

Merger, Consolidation or Sale of Assets. The Company (a) MBIA shall not merge or consolidate or merge with or into (whether or not the Company is the surviving corporation), any other Person or sell, assignconvey, transfer, lease, convey transfer or otherwise dispose of all or substantially all of its properties or assets in one or more related transactionsto any Person, to another Person unless (ai) (A) in the Company case of a merger or consolidation, MBIA is the surviving corporation or (B) in the Person formed by case of a merger or consolidation where MBIA is not the surviving corporation and in the case of any such consolidation or merger (if other than the Company) or to which such sale, assignmentconveyance, transfer, lease, conveyance transfer or other disposition shall have been made disposition, the successor corporation is a corporation organized or and existing under the laws of the United States, any state States or a State thereof or the District of Columbia, (b) the Person formed and such corporation expressly assumes by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes supplemental fiscal agency agreement all the obligations of the Company MBIA under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the TrusteeAgreement, (cii) immediately after such transaction no Default or Event of Default exists and (d) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of any such transaction and after giving pro forma effect thereto as if merger or consolidation, or such transaction had occurred at the beginning sale, conveyance, transfer or other disposition, MBIA shall not have failed to make payment of the applicable four-quarter periodinterest on, be permitted to incur at least $1.00 principal of additional Indebtedness pursuant or Redemption Price or Make Whole Redemption Price with respect to the Consolidated Interest Coverage Ratio test set forth in Notes after having satisfied the first paragraph of Section 4.09 hereof. In connection with any consolidation, merger or disposition contemplated by this provision, the Company shall deliver, or cause to be delivered, Payment Restrictions and (iii) MBIA has delivered to the Trustee, in form and substance reasonably satisfactory to the Trustee, Fiscal Agent an Officers' ’ Certificate and an Opinion of Counsel, each stating that such merger, consolidation, merger sale, conveyance, transfer or other disposition and the supplemental indenture in respect thereto comply complies with this provision Section and that all conditions precedent in the Indenture herein provided for relating to such transaction or transactions and supplemental fiscal agency agreement, if any, have been complied with. In the event of the assumption by a successor corporation of the obligations of MBIA as provided in clause (i)(B) of the immediately preceding sentence, such successor corporation shall succeed to and be substituted for MBIA under this Agreement and the Notes and all such obligations of MBIA shall terminate.

Merger, Consolidation or Sale of Assets. The Company shall issuers may not consolidate or merge with or into (whether or not the Company is Issuers are the surviving corporationentity), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its their properties or assets in one or more related transactions, to another corporation, Person or entity unless (ai) the Company such Issuer is the surviving corporation entity or the entity or the Person formed by or surviving any such consolidation or merger (if other than the Companysuch Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or and existing under the laws of the United States, any state thereof or the District of Columbia, provided that FCC may not consolidate or merge with or into any entity other than a corporation satisfying such requirements for so long as Foamex remains a partnership and (bii) the entity or Person formed by or surviving any such consolidation or merger (if other than the Companysuch Issuer) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company such Issuer under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, (c) immediately after such transaction no Default or Event of Default exists and (d) except in . In the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, lease, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to of all or greater than the Consolidated Net Worth substantially all of the Company immediately preceding assets of an Issuer, upon the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof. In connection with any consolidation, merger or disposition contemplated by this provision, the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture assumption provided for relating to in clause (ii) above, such transaction or transactions have been complied withIssuer shall be discharged from all further liability and obligation under this Indenture."

Merger, Consolidation or Sale of Assets. The Company shall may not consolidate or merge with or into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactionstransactions to, to another Person unless (a) the Company is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such that sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (b) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such that sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Registration Rights Agreement, the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, ; (c) immediately after such that transaction no Default or Event of Default exists exists; and (d) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such that sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (Bi) will, at the time of such transaction and after giving pro forma effect thereto as if such that transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereofhereof or (ii) would, together with its Restricted Subsidiaries, have a higher Fixed Charge Coverage Ratio immediately after that transaction (after giving pro forma effect thereto as if that transaction had occurred at the beginning of the applicable four-quarter period) than the Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries immediately prior to that transaction. In connection with any consolidationThe foregoing clause (d) will not prohibit (i) a merger between the Company and a Wholly Owned Subsidiary of Parent created for the purpose of holding the Capital Stock of the Company; (ii) a merger between the Company and a Wholly Owned Restricted Subsidiary; or (iii) a merger between the Company and an Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States so long as, merger or disposition contemplated by this provisionin each 57 case, the amount of Indebtedness of the Company shall deliver, and its Restricted Subsidiaries is not increased thereby. The Company will not lease all or cause substantially all of its assets to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied withany Person.

Merger, Consolidation or Sale of Assets. The Company shall not not, directly or indirectly, consolidate or merge with or into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another Person unless (ai) the Company is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Subordinated Registration Rights Agreement, the Senior Subordinated Notes and this Senior Subordinated Note Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Senior Subordinated Note Trustee, ; (ciii) immediately before and after such transaction no Default or Event of Default exists shall have occurred; and (div) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the CompanySubsidiary, the Company or Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition shall have been made will, immediately after such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, (A) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof or (B) the Fixed Charge Coverage Ratio for the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth would, immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, not be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest less than such Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof. In connection with any consolidation, merger or disposition contemplated by this provision, for the Company shall deliverand its Restricted Subsidiaries immediately prior to such transaction. The Company may not, directly or cause to be deliveredindirectly, lease all or substantially all of its properties or assets, in one or more related transactions, to any other Person. The provisions of this Section 5.01 will not be applicable to a sale, assignment, transfer, conveyance or other disposition of assets between or among the Trustee, in form Company and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied withits Restricted Subsidiaries.

Merger, Consolidation or Sale of Assets. The Company Issuer shall not not, directly or indirectly, consolidate or merge with or into (whether or not the Company Issuer is the surviving corporationentity), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its the properties or assets of the Issuer and its Restricted Subsidiaries, taken as a whole, in one or more related transactionstransactions to, to another Person unless unless: (i) either: (a) the Company Issuer is the surviving corporation corporation; or (b) the Person formed by or surviving any such consolidation or merger (if other than the CompanyIssuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation corporation, limited liability company or limited partnership organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the Person formed by or surviving any such consolidation or merger (if other than the CompanyIssuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company Issuer under the Notes and Notes, this Indenture and the Registration Rights Agreement pursuant to a supplemental indenture in a form agreements reasonably satisfactory to the Trustee, ; (ciii) immediately after such transaction no Default or Event of Default exists exists; and (div) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company Issuer or the Person formed by or surviving any such consolidation or merger (if other than the CompanyIssuer), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after shall, on the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time date of such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter periodfiscal quarter, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Adjusted Debt to Cash Flow Ratio test set forth in the first paragraph paragraph, or the Debt to Cash Flow Ratio test set forth in clause (iii) of the second paragraph, of Section 4.09 hereof. In connection with any consolidation, merger or disposition contemplated by this provisionaddition, the Company shall deliverIssuer may not, directly or cause to be deliveredindirectly, lease all or substantially all of its properties or assets, in one or more related transactions, to any other Person. The provisions of this Section 5.01 shall not apply to a sale, assignment, transfer, conveyance or other disposition of assets between or among the Trustee, in form Issuer and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion any of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied withits Restricted Subsidiaries.

Merger, Consolidation or Sale of Assets. The Company shall not not, directly or indirectly, (a) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation), or (b) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the assets of the Company and its properties or assets Restricted Subsidiaries, taken as a whole, in one or more related transactionstransactions to, to another Person unless (ai) either (A) the Company is the surviving corporation or (B) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, (bii) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Notes Securities and this the Indenture pursuant to a supplemental indenture in a form agreements reasonably satisfactory to the Trustee, (ciii) immediately after such transaction transaction, no Default or Event of Default exists and (div) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after shall, on the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time date of such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 3.06(a) hereof. In connection with any The provisions of this Section 4.01 shall not be applicable to a sale, assignment, transfer, conveyance or other disposition of assets, or merger or consolidation, merger between or disposition contemplated by this provision, among the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion any of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied withits Restricted Subsidiaries.

Merger, Consolidation or Sale of Assets. The Company shall not, and shall not permit its Subsidiaries to, in a single transaction or series of related transactions, consolidate or merge with or into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its the properties or assets of the Company or of the Company and its Subsidiaries taken as a whole in one or more related transactions, to another Person unless (ai) the Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (such surviving corporation or transferee Person, the "SURVIVING ENTITY") is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made Surviving Entity assumes all the obligations of the Company under the Notes and Notes, this Indenture and the Collateral Documents, and the Surviving Entity's Subsidiaries become Subsidiary Guarantors, pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; (iii) the Surviving Entity causes such amendments, (c) immediately after supplements or other instruments to be filed and recorded in such transaction no Default or Event jurisdictions as may be required by applicable law to preserve and protect the Lien of Default exists and (d) except the Collateral Documents in the case of a merger Collateral owned by or transferred to the Surviving Entity, together with such financing statements as may be required by applicable law to preserve and protect the Lien of the Company with or into a Wholly Owned Restricted Subsidiary of Collateral Documents in the Company, the Company or the Person formed Collateral owned by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant transferred to the Consolidated Interest Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof. In connection Surviving Entity, together with any consolidation, merger or disposition contemplated by this provision, the Company shall deliver, or cause to such financing statements as may be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied with.required to

Merger, Consolidation or Sale of Assets. The Company shall not consolidate or merge with or into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person or entity unless (ai) the Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the entity or Person formed by or surviving any such consolidation or merger (if other than the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, ; (ciii) immediately after such transaction no Default or Event of Default exists and exists; (div) except in the case of a merger of the Company with 44 or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof. In connection with any consolidation; and (v) each Guarantor, merger unless it is the other party to the transactions described above, shall have by supplemental indenture in a form substantially similar to EXHIBIT F hereto confirmed that its Notes Guarantee shall apply to the Company's or disposition contemplated by the surviving Person's obligations under this provision, Indenture and the Notes; and the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, delivers an Officers' Certificate and an Opinion of CounselCounsel to the Trustee, each stating (A) that such consolidation, merger or disposition the proposed transaction and the supplemental indenture in respect thereto comply with this provision Indenture and (B) that all conditions precedent in the Indenture provided for relating Trustee shall be entitled to conclusively rely upon such transaction or transactions have been complied withOfficers' Certificate and Opinion of Counsel.

Merger, Consolidation or Sale of Assets. The Company shall not consolidate or merge with or into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person or entity unless (ai) the Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the entity or Person formed by or surviving any such consolidation or merger (if other than the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Registration Rights Agreement, the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, ; (ciii) immediately after such transaction no Default or Event of Default exists exists; and (div) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will shall have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) willshall, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charged Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof. In connection with any consolidation, merger or disposition contemplated by this provision, the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied with.

Merger, Consolidation or Sale of Assets. The Company Neither Issuer shall not consolidate or merge with or into (whether or not the Company such Issuer is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another Person unless (ai) the Company such Issuer is the surviving corporation Person or the Person formed by or surviving any such consolidation or merger (if other than one of the CompanyIssuers) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation Person organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the entity or Person formed by or surviving any such consolidation or merger (if other than one of the CompanyIssuers) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of such Issuer under the Company under Registration Rights Agreement, the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, ; (ciii) immediately after such transaction no Default or Event of Default exists and exists; (div) except in the case of a merger of one of the Company Issuers with or into a Wholly Owned Restricted Subsidiary of the Company, the Company Issuer or the Person formed by or surviving any such consolidation or merger (if other than one of the CompanyIssuers), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof. In connection with any consolidation, merger or disposition contemplated by this provision, ; and (v) the Company shall deliver, or cause to be delivered, has delivered to the Trustee, in form and substance reasonably satisfactory to the Trustee, Trustee an Officers' Officer's Certificate and an Opinion of Counsel, each stating that such consolidation, merger merger, sale, assignment, transfer, lease, conveyance or other disposition and the such supplemental indenture in respect thereto comply complies with this provision Indenture and that all conditions precedent in the Indenture provided for in this Indenture and that all conditions precedent provided for in this Indenture relating to such transaction or transactions have been complied with. Notwithstanding the foregoing, the Company is permitted to reorganize as a corporation in accordance with the procedures established in the Indenture (and Grove Capital may thereafter liquidate); provided that the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that such reorganization (and, if applicable, liquidation of Grove Capital) is not adverse to holders of the Notes (it being recognized that such reorganization shall not be deemed adverse to the holders of the Notes solely because (i) of the accrual of deferred tax liabilities resulting from such reorganization or (ii) the successor or surviving corporation (a) is subject to income tax as a corporate entity or (b) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of the Code or any similar state or local law) and certain other conditions are satisfied.

Merger, Consolidation or Sale of Assets. The Company shall not consolidate or merge with or into (whether or not the Company is the surviving corporationPerson), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another Person unless (ai) the Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, ; (ciii) immediately after such transaction no Default or Event of Default exists exists; and (div) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (Aa) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (Bb) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof; provided, however, that this provision shall not prohibit any merger or consolidation among the Company and one or more of its Wholly Owned Restricted Subsidiaries that is a Guarantor. In connection with any consolidationconsolidation or merger, merger or any sale, assignment, transfer, lease, conveyance, or other disposition contemplated by of all or substantially all of the assets of the Company in accordance with this provisionSection 5.01, the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger merger, sale, assignment, transfer, lease, conveyance, or other disposition and the any supplemental indenture in respect thereto comply with this provision Article 5 and that all conditions precedent in the Indenture herein provided for relating to such transaction or transactions have been complied with.

Merger, Consolidation or Sale of Assets. The (x) If and whenever subsequent to the date hereof the Company shall not consolidate effect: (i) any reorganization or merge with reclassification or into recapitalization of any Common Stock (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose any other Shares of all or substantially all of its properties or assets in one or more related transactions, to another Person unless (a) the Company is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the Company) or (other than in the cases referred to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbiain Section 4.2(a)), (bii) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, (c) immediately after such transaction no Default or Event of Default exists and (d) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of another Person or (iii) the Company, the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance transfer or other disposition shall have been made (A) will have Consolidated Net Worth immediately after of the transaction equal to property, assets or greater than the Consolidated Net Worth business of the Company immediately preceding as an entirety or substantially as an entirety, in each case as a result of which holders of Common Stock become entitled to receive any Shares or other securities and/or property (including, without limitation, cash (other than in the transaction case referred to in Section 4.2(g)) with respect to or in exchange for the Common Stock, (the transactions referred to in clauses (i), (ii) and (Biii) willeach hereinafter referred to as a “Combination”), at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter periodthen, be permitted to incur at least $1.00 of additional Indebtedness pursuant prior to the Consolidated Interest Coverage Ratio test set forth in the first paragraph consummation of Section 4.09 hereof. In connection with any consolidation, merger or disposition contemplated by this provisionsuch Combination, the Company shall deliver, or cause to be delivered, to the Trustee, make appropriate provision (in form and substance reasonably satisfactory to the TrusteeCompany and the Required Holders of the Warrants) to insure that each of the Holders shall thereafter have the right to acquire and receive upon proper exercise of the Warrant, an Officers' Certificate in lieu of or addition to (as the case may be) the Common Stock, such shares of stock, securities or assets (including cash) as would have been issued or payable in such Combination (if the holder had exercised the Warrant immediately prior to such Combination) with respect to or in exchange for the number of shares of Common Stock immediately theretofore acquirable and an Opinion receivable upon exercise of Counselsuch Holder’s Warrant had such Combination not taken place (provided that in the event that in such Combination holders of shares of Common Stock are entitled to elect to receive differing forms of consideration, each stating the consideration that the Holder shall be entitled to receive upon proper exercise of a Warrant shall be the kind and amount of consideration received by a majority of the shares of Common Stock in such consolidationCombination). The Company shall not effect any such Combination, unless prior to the consummation thereof, the successor entity (if other than the Company) resulting from consolidation or merger or disposition the entity purchasing such assets assumes by written instrument (in form and substance reasonably satisfactory to the Company and the supplemental indenture Required Holders of the Warrants), the obligation to deliver to each such holder such shares of stock, securities or assets as, in respect thereto comply accordance with the foregoing provisions, such holder may be entitled to acquire upon proper exercise of the Warrant. The provisions of this provision subsection shall apply similarly and that all conditions precedent in the Indenture provided for relating equally to such transaction or transactions have been complied withsuccessive Combinations.

Merger, Consolidation or Sale of Assets. The Company shall not consolidate or merge with or into (whether or not the Company is the surviving corporationentity), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactionstransactions to, to another Person unless (ai) the Company is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall will have been made assumes all the obligations of the Company under the Notes and this the Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, ; (ciii) immediately after such transaction transaction, no Default or Event of Default exists exists; and (div) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company)merger, or to which such sale, assignment, transfer, lease, conveyance or other disposition shall will have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof. In connection with any consolidation, The foregoing will not prohibit a consolidation or merger or disposition contemplated by this provisionbetween the Company and a Wholly Owned Restricted Subsidiary, the transfer of all or substantially all of the properties or assets of the Company shall deliver, to a Wholly Owned Restricted Subsidiary or cause to be delivered, the transfer of all or substantially all of the properties or assets of a Wholly Owned Restricted Subsidiary to the Trustee, in form and substance reasonably satisfactory to Company; PROVIDED that if the Trustee, an Officers' Certificate and an Opinion Company is not the surviving entity of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied withto the Person to which such transfer is made, the surviving entity or the Person to which such transfer is made shall comply with clause (ii) of this paragraph.

Merger, Consolidation or Sale of Assets. The Company shall may not consolidate or merge with or into (whether or not the Company is the surviving corporation)into, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person or entity unless (ai) the Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the entity or Person formed by or surviving any such consolidation or merger (if other than the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the all outstanding Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, ; (ciii) immediately after such transaction no Default or Event of Default exists exists; and (div) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) willshall, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof. In connection with any consolidation, merger or disposition contemplated by this provision, the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied withSectin 4.10.

Merger, Consolidation or Sale of Assets. The Company shall will not consolidate or with, merge with or into (whether or not the Company is the surviving corporation)into, or sell, assignconvey, transfer, lease, convey lease or otherwise dispose of all or substantially all of its property and assets (as an entirety or substantially an entirety in one transaction or a series of related transactions) to any Person or permit any Person to merge with or into the Company unless: (i) the Company shall be the continuing Person, or the Person (if other than the Company) formed by such consolidation or into which the Company is merged or that acquired or leased such property and assets of the Company shall be a corporation organized and validly existing under the laws of the United States of America or any jurisdiction thereof and shall expressly assume, by a supplemental indenture, executed and delivered to the Trustee, all of the obligations of the Company on all of the Notes and under the Indenture; (ii) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; (iii) immediately after giving effect to such transaction on a PRO FORMA basis the Company, or any Person becoming the successor obligor of the Notes, as the case may be, could Incur at least $1.00 of Indebtedness under the first paragraph of Section 4.07; PROVIDED that this clause (iii) shall not apply to a consolidation, merger or sale of all (but not less than all) of the assets of the Company if all Liens and Indebtedness of the Company or any Person becoming the successor obligor on the Notes, as the case may be, and its Restricted Subsidiaries outstanding immediately after such transaction would have been permitted (and all such Liens and Indebtedness, other than Liens and Indebtedness of the Company and its Restricted Subsidiaries outstanding immediately prior to the transaction, shall be deemed to have been Incurred) for all purposes of the Indenture; and (iv) the Company delivers to the Trustee an Officers' Certificate (attaching the arithmetic computations to demonstrate compliance with clause (iii)) and opinion of counsel, in each case stating that such consolidation, merger or transfer and such supplemental indenture complies with this provision and that all conditions precedent provided for herein relating to such transaction have been compiled with; PROVIDED, HOWEVER, that clause (iii) above will not apply if, in the good faith determination of the Board of Directors of the Company, whose determination shall be evidenced by a resolution of the Board of Directors, the principal purpose of such transaction is to change the state of incorporation of the Company and any such transaction shall not have as one of its purposes the evasion of the foregoing limitations. In addition, the Company may not, directly or indirectly, lease all or substantially all of its properties or assets assets, in one or more related transactions, to another Person unless (a) the Company is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the Company) or Person. This Section 5.01 shall not apply to which such a sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized of assets between or existing under among the laws Company and any of the United States, any state thereof or the District of Columbia, (b) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, (c) immediately after such transaction no Default or Event of Default exists and (d) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof. In connection with any consolidation, merger or disposition contemplated by this provision, the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied withGuarantors.

Merger, Consolidation or Sale of Assets. The Company shall not consolidate or merge with or into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another Person unless (ai) the Company is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Registration Rights Agreement, the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, ; (ciii) immediately after such transaction no Default or Event of Default exists and exists; (div) except in the case of the Merger or a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) willmade, shall be permitted, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof. In connection with any consolidation, merger or disposition contemplated by this provision, ; and (v) the Company shall deliver, or cause to be delivered, have delivered to the Trustee, in form and substance reasonably satisfactory to the Trustee, Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger merger, sale, assignment, transfer, conveyance or other disposition and the and, if a supplemental indenture is required in respect thereto connection with such transaction, such supplemental indenture comply with the applicable provisions of this provision Indenture and that all conditions precedent in the this Indenture provided for relating to such transaction or transactions have been complied withsatisfied.

Merger, Consolidation or Sale of Assets. The Company shall not not, directly or indirectly consolidate or merge with or into another Person (whether or not the Company is the surviving corporation), ) or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person unless (i) either (a) the Company is the surviving corporation corporation; or (b) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have has been made is a corporation organized or existing under the laws of the United States, any state thereof of the United States or the District of Columbia, ; (bii) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have has been made assumes all the obligations of the Company under the Notes and Notes, this Indenture and the Registration Rights Agreement pursuant to a supplemental indenture in a form agreements reasonably satisfactory to the Trustee, ; (ciii) immediately after such transaction no Default or Event of Default exists exists; and (div) except in immediately after such transaction after giving pro forma effect thereto and any related financing transactions as if the case of a merger same had occurred at the beginning of the Company with or into a Wholly Owned Restricted Subsidiary of the Companyapplicable four-quarter period, either the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have has been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereofhereof or the Fixed Charge Coverage Ratio of the Company or the surviving Person, as applicable, or of the Person to which such sale, assignment, transfer, conveyance or other disposition has been made, would not be less than the Fixed Charge Coverage Ratio of the Company immediately prior to the transaction. In connection with any consolidation, merger or disposition contemplated by this provisionaddition, the Company shall delivermay not, directly or cause to be deliveredindirectly, lease all or substantially all of its properties or assets, in one or more related transactions, to any other Person. Notwithstanding the Trusteepreceding clause (iv), in form (a) any Restricted Subsidiary of the Company may consolidate with, merge into or sell, assign, transfer or convey all or part of its properties and substance reasonably satisfactory assets to the Trustee, Company and (b) the Company may merge with an Officers' Certificate Affiliate that has no significant assets or liabilities and an Opinion was formed solely for the purpose of Counsel, each stating that such consolidation, merger or disposition changing the jurisdiction of organization of the Company to another state of the United States so long as the amount of the Company's Indebtedness and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in Indebtedness of the Indenture provided for relating to such transaction or transactions have been complied withRestricted Subsidiaries is not increased thereby.

Merger, Consolidation or Sale of Assets. The Company Holdings shall not consolidate or merge with or into (whether or not the Company Holdings is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person or entity unless (ai) the Company Holdings is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the CompanyHoldings) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the entity or Person formed by or surviving any such consolidation or merger (if other than the CompanyHoldings) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company Holdings under the Notes Debentures and this Indenture pursuant to a supplemental indenture indentures in a form forms reasonably satisfactory to the Trustee, ; (ciii) immediately after such transaction no Default or Event of Default exists exists; and (div) except in the case of a merger of the Company Holdings with or into a Wholly Owned Restricted Subsidiary of Holdings and except in the Companycase of a merger entered into solely for the purpose of incorporating Holdings or reincorporating Holdings in another jurisdiction, the Company Holdings or the entity or Person formed by or surviving any such consolidation or merger (if other than the CompanyHoldings), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable fourFour-quarter periodQuarter Period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof4.09. In connection Holdings shall not, directly or indirectly, lease all or substantially all of its properties or assets, in one or more related transactions, to any other Person. The provisions of this covenant will not be applicable to a merger, sale, assignment, transfer, conveyance or other disposition of assets between or among Holdings and any of its Restricted Subsidiaries. Notwithstanding the foregoing, Holdings is permitted to reorganize as a corporation in accordance with any consolidationthe procedures established in this Indenture (and AC Holdings Corp. may thereafter liquidate); provided that Holdings shall have delivered to the Trustee an opinion of counsel in the United States reasonably acceptable to the Trustee confirming that such reorganization (and, merger if applicable, liquidation of AC Holdings Corp.) is not adverse to holders of the Debentures from a U.S. federal tax standpoint (it being recognized that such reorganization shall not be deemed adverse to the holders of the Debentures solely because (i) of the accrual of deferred tax liabilities resulting from such reorganization or disposition contemplated by this provision, (ii) the Company shall deliver, successor or cause surviving corporation (a) is subject to income tax as a corporate entity or (b) is considered to be delivered, to an "includible corporation" of an affiliated group of corporations within the Trustee, in form meaning of the Code or any similar state or local law) and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all certain other conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied withare satisfied.

Merger, Consolidation or Sale of Assets. The Company shall not consolidate or merge with or into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person or entity unless (ai) the Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the entity or Person formed by or surviving any such consolidation or merger (if other than the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Notes and this Indenture hereunder pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, ; (ciii) immediately after such transaction no Default or Event of Default exists exists; and (div) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will shall have Consolidated Net Worth immediately after the transaction equal to or greater than 90% of the Consolidated Net Worth of the Company immediately preceding the transaction and (B) willshall, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 4.09(a) hereof. In connection with any consolidation, merger or disposition contemplated by this provision, the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied with.

Merger, Consolidation or Sale of Assets. The Except as otherwise provided in Section 4.21, the Company shall may not consolidate or merge with or into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactionstransactions to, to another Person unless (a) the Company is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (the "SUCCESSOR") is a corporation organized or existing under the laws of the United States, any state thereof or thereof, the District of Columbia, Columbia or a territory thereof; (b) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made Successor assumes all the obligations of the Company under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, ; (c) immediately after such transaction no Default or Event of Default exists and exists; (d) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) Successor will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof. In connection with any consolidation, merger or disposition contemplated by this provision, hereof and (e) the Company shall deliver, or cause to be delivered, has delivered to the Trustee, in form and substance reasonably satisfactory to the Trustee, Trustee an Officers' Certificate and an Opinion of Counsel, Counsel each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture herein provided for relating to such transaction or transactions have been complied with. The foregoing will not prohibit (i) any consolidation or merger of, or transfer of all or part of the property and assets of, any Restricted Subsidiary with or to the Company or any Subsidiary Guarantor or (ii) the Delchamps Merger.

Merger, Consolidation or Sale of Assets. The Company shall not consolidate or merge with or into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactionstransactions to, to another corporation, Person or entity unless (ai) the Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other -49- 57 disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the entity or Person formed by or surviving any such consolidation or merger (if other than the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations Obligations of the Company under the Notes and Notes, this Indenture and the Security Documents pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, Trustee and such entity or Person shall have taken all steps necessary or reasonably requested by the Trustee to protect and perfect the Security Interests granted or purported to be granted under the Security Documents; (ciii) immediately after such transaction no Default or Event of Default exists and exists; (div) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will shall have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding prior to the transaction and (B) willshall, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof. In connection with any consolidation, merger or disposition contemplated by this provision, ; (v) the Company shall deliver, or cause to be delivered, have delivered to the Trustee, in form and substance reasonably satisfactory to the Trustee, Trustee an Officers' Certificate and an Opinion of Counsel, Counsel each stating that (A) such consolidation, merger or disposition transaction and the supplemental indenture in respect thereto comply with this provision Article, and that (B) all conditions precedent in the Indenture herein provided for relating to such transaction or transactions have been complied with; and (vi) the Company shall have delivered to the Trustee all instruments of further assurance and all actions, as are necessary to maintain, preserve and protect the rights of the Holders of the Notes and the Trustee hereunder and under each of the applicable Security Documents with respect to the Security Interests have been taken. The sale, assignment, transfer, lease, conveyance or other disposition by the Company or its Restricted Subsidiaries of all or substantially all of their respective property or assets to one or more of their Subsidiaries shall not relieve either the Company or the Restricted Subsidiaries from their respective obligations hereunder, under the Notes or under the Security Documents. Subject to the foregoing, any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Company or any other Restricted Subsidiary or other entity that becomes, by reason of such consolidation, merger or transfer, a Restricted Subsidiary.

Merger, Consolidation or Sale of Assets. The Company shall not consolidate or merge with or into (whether or not the Company is the surviving corporation), ) or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactionstransactions to, to another corporation, Person or entity unless (ai) the Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, (bii) the entity or Person formed by or surviving any such consolidation or merger (if other than the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, (ciii) immediately after such transaction transaction, no Default or Event of Default exists exists; (iv) such transaction will not result in the loss or suspension or material impairment of any licenses or other authorizations that are material to the future prospects of the Company and its Restricted Subsidiaries, taken as a whole; and (dv) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Debt to Cash Flow Ratio test set forth in the first paragraph of Section 4.09 hereof. In connection with any consolidation, merger or disposition contemplated by this provision, the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied with.

Merger, Consolidation or Sale of Assets. The Company shall not Neither Issuer may consolidate or merge with or into (whether or not the Company such Issuer is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person or entity unless (ai) the Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the entity or Person formed by or surviving any such consolidation or merger (if other than the Companysuch Issuer) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company Issuers under the Registration Rights Agreement, the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, ; (ciii) immediately prior thereto and immediately after such transaction no Default or Event of Default exists exists; and (div) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the CompanyCompany and except in the case of a merger entered into solely for the purpose of reincorporating the Company in another jurisdiction, the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, (x) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of the covenant described in Section 4.09 hereof4.9 hereof or (y) the Fixed Charge Coverage Ratio for the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the Company) would be greater than such ratio for the Company or such surviving entity immediately prior to such transaction. In connection with any consolidation, merger or disposition contemplated by this provisionNotwithstanding the foregoing, the Company shall deliverbe permitted to reorganize as a corporation in accordance with the procedures established in this Indenture, or cause to be delivered, provided that the Company shall have delivered to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and Trustee an Opinion of Counsel, each stating Counsel in the United States reasonably acceptable to the Trustee confirming that such consolidationreorganization is not adverse to Holders of the Notes (it being recognized that such reorganization shall not be deemed adverse to the Holders of the Notes solely because (i) of the accrual of deferred tax liabilities resulting from such reorganization or (ii) the successor or surviving corporation (a) is subject to income tax as a corporate entity or (b) is considered to be an “includible corporation” of an affiliated group of corporations within the meaning of the Code or any similar state or local law) and certain other conditions are satisfied. The entity or the Person formed by or surviving any consolidation or merger (if other than the Company) will succeed to, merger or disposition and be substituted for, and may exercise every right and power of, the supplemental indenture in respect thereto comply with Issuers under this provision and that all conditions precedent Indenture, but, in the Indenture provided for relating case of a lease of all or substantially all its assets, neither Issuer will be released from the obligation to such transaction or transactions have been complied withpay the principal of and interest on the Notes.

Merger, Consolidation or Sale of Assets. (a) The Company Borrower shall not not, directly or indirectly, consolidate or merge with or into another Person (whether or not the Company Borrower is the surviving corporation), ) or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets assets, in one or more related transactions, to another Person Person, unless (ai) the Company Borrower is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the CompanyBorrower) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, (bii) the Person formed by or surviving any such consolidation or merger (if other than the CompanyBorrower) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company Borrower under this Agreement and the Notes and this Indenture pursuant to a supplemental indenture other Loan Documents in a form manner reasonably satisfactory to the TrusteeAdministrative Agent, (ciii) immediately after such transaction no Default or Event of Default exists and exists, (div) except in the case of a the amalgamation, consolidation or merger of the Company Borrower with or into a Wholly Owned Restricted Subsidiary or with or into any Person solely for the purpose of effecting a change in the state of incorporation of the CompanyBorrower, the Company Borrower or the Person formed by or surviving any such consolidation or merger (if other than the Company)Borrower) shall, or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after on the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time date of such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Expense Coverage Ratio test set forth in Section 5.7(a) (Incurrence of Indebtedness and Issuance of Preferred Stock.), and (v) the first paragraph of Section 4.09 hereof. In connection with any consolidation, merger or disposition contemplated by this provision, the Company Borrower shall deliver, or cause to be delivered, have delivered to the Trustee, in form and substance reasonably satisfactory to the Trustee, Administrative Agent an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger merger, sale, assignment, transfer, conveyance or other disposition and the supplemental indenture in respect thereto comply complies with this provision and that Agreement. In addition, the Borrower shall not, directly or indirectly, lease all conditions precedent or substantially all of its properties or assets, in one or more related transactions, to any other Person. The provisions of this Section 5.16 shall not be applicable to a sale, assignment, transfer, conveyance or other disposition of assets by the Indenture provided for relating Borrower to such transaction or transactions have been complied withany of its Wholly Owned Restricted Subsidiaries. SECOND LIEN CREDIT AGREEMENT AMKOR TECHNOLOGY, INC.

Merger, Consolidation or Sale of Assets. The Company shall not consolidate or merge with or into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person or entity unless (a) the Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, (b) the entity or Person formed by or surviving any such consolidation or merger (if other than the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, (c) immediately after such transaction no Default or Event of Default exists and (d) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Adjusted Consolidated Interest Coverage Leverage Ratio test set forth in the first paragraph of Section 4.09 hereof. In connection with any consolidation, merger or disposition contemplated by this provisionNotwithstanding the foregoing, the Company following shall deliverbe permitted: (i) the Merger and (ii) the sale, assignment, transfer, lease, conveyance or cause to be deliveredother disposition of all or any part of the assets, to properties or Capital Stock of any or all of the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied withWPC Related Persons.

Merger, Consolidation or Sale of Assets. The Company shall may not consolidate or merge with or into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person or entity unless (ai) the Company is the surviving corporation cor- poration or the entity or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the entity or Person formed by or surviving any such consolidation or merger (if other than the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Registration Rights Agreement, the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, ; (ciii) immediately after such transaction no Default or Event of Default exists exists; and (div) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period, (A) the entity surviving such consolidation or merger would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of the covenant described under Section 4.09 or (B) the Fixed Charge Coverage Ratio for the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth would, immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, not be permitted less than such Fixed Charge Coverage Ratio for the Company and its Restricted Subsidiaries immediately prior to incur at least $1.00 such transaction. The Company may not, directly or indirectly, lease all or substantially all of additional its properties or assets, in one or more related transactions, to any other Person. The provisions of this covenant shall not be applicable to a sale, assignment, transfer, conveyance or other disposition of assets between or among the Company and its Restricted Subsidiaries. Notwithstanding the foregoing clause (iv), (i) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Company and (ii) the Company may merge with an Affiliate that has no significant assets or liabilities and was formed solely for the purpose of changing the jurisdiction of organization of the Company in another State of the United States or the form of organization of the Company so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby and provided that the successor assumes all the obligations of the Company under the Registration Rights Agreement, the Notes and this Indenture pursuant to the Consolidated Interest Coverage Ratio test set forth a supplemental indenture in the first paragraph of Section 4.09 hereof. In connection with any consolidation, merger or disposition contemplated by this provision, the Company shall deliver, or cause to be delivered, to the Trustee, in a form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied with.

Merger, Consolidation or Sale of Assets. The Company shall not consolidate or merge with or into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person or entity unless (ai) the Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia; (ii) except in the case of a merger or consolidation of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, (b) the entity or Person formed 57 by or surviving any such consolidation or merger (if other than the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Registration Rights Agreement, the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, ; (ciii) immediately after such transaction no Default or Event of Default exists exists; and (div) except in the case of a merger or consolidation of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will shall have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) willshall, at the time of immediately after such transaction and after giving pro forma effect thereto and any related financial transaction as if such transaction the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof. In connection with any consolidation, merger or disposition contemplated by this provision, the The Company shall deliver, or cause not lease its properties and assets substantially as an entity to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied withany Person.

Merger, Consolidation or Sale of Assets. The Company shall not not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation), ; or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactionstransactions (including, in each case, by operation of or as a result of an LLC Division), to another Person unless Person, unless: (1) either: (a) the Company is the surviving corporation corporation; or (b) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have has been made (the “Surviving Entity”) is a corporation organized or existing under the laws of the United States, any state thereof of the United States or the District of Columbia, ; (b2) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made Surviving Entity expressly assumes all the obligations of the Company under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, indenture; (c3) immediately after such transaction transaction, no Default or Event of Default exists shall have occurred and be continuing; (d4) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the Person formed by Surviving Entity shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect that such consolidation, merger or surviving any transfer and such consolidation or merger supplemental indenture (if other than any) comply with this Indenture and an Opinion of Counsel to the Companyeffect that such supplemental indenture (if any) has been duly authorized, executed and delivered and is a legal, valid and binding agreement enforceable against the Successor Company (in each case, in form and substance reasonably satisfactory to the Trustee); provided that in giving an Opinion of Counsel, or counsel may rely on an Officer’s Certificate as to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made any matters of fact; and (A5) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding or the transaction and (B) willSurviving Entity would, at on the time date of such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, either (A) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in Section 4.09(a) hereof or (B) have a Fixed Charge Coverage Ratio of not less than the first paragraph Fixed Charge Coverage Ratio of Section 4.09 hereofthe Company immediately prior to such merger, sale, assignment, transfer, lease, conveyance or other disposition. In connection with any consolidation, merger or disposition contemplated by this provisionaddition, the Company shall delivernot, directly or indirectly, lease all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person. This Section 5.01 shall not apply to: (1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction; or (2) any consolidation or merger, or cause to be deliveredany sale, to the Trusteeassignment, transfer, conveyance, lease or other disposition of assets (including, in form each case, by operation of or as a result of an LLC Division) between or among the Company and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied withits Restricted Subsidiaries.

Merger, Consolidation or Sale of Assets. The Company CR US shall not consolidate or merge with or into (whether or not the Company CR US is the surviving corporation), ) or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactionstransactions to, to another corporation, Person or entity unless (ai) the Company CR US is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the CompanyCR US) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, (bii) the entity or Person formed by or surviving any such consolidation or merger (if other than the CompanyCR US) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of CR US (i) under the Company Registration Rights Agreement and (ii) pursuant to a supplemental indenture under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, together with the documentation required by Section 9.06 hereof, (ciii) immediately after such transaction transaction, no Default or Event of Default exists and (div) except in the case of a merger of the Company CR US with or into a Wholly Owned Restricted Subsidiary of the CompanyCR US, the Company CR US or the entity or Person formed by or surviving any such consolidation or merger (if other than the CompanyCR US), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will shall have Consolidated Net Worth (immediately after the transaction transaction) equal to or greater than the Consolidated Net Worth of the Company CR US immediately preceding the transaction and (B) willshall, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test applicable to CR US set forth in clause (a) of the first paragraph of Section 4.09 hereof. In connection with any consolidation, merger or disposition contemplated by this provision, the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied with.

Merger, Consolidation or Sale of Assets. The Company shall Xxxxx Holdings may not consolidate or merge with or into (whether or not the Company Xxxxx Holdings is the surviving corporationentity), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person or entity unless (ai) the Company Xxxxx Holdings is the surviving corporation entity or the entity or the Person formed by or surviving any such consolidation or merger (if other than the CompanyXxxxx Holdings) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or and existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the entity or Person formed by or surviving any such consolidation or merger (if other than the CompanyXxxxx Holdings) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company Xxxxx Holdings under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; provided that Xxxxx Holdings may merge with and into Xxxxx Industries, Inc. (cthe "Holdings-Industries Merger") without Xxxxx Industries, Inc. assuming the obligations of Xxxxx Holdings if within two 75 Business Days following such merger, the Xxxxx Acquisition Transactions occur; (iii) immediately after such transaction transactions no Default or Event of Default exists exists; and (div) except in the case of a merger of the Company Xxxxx Holdings with or into a Xxxxx Industries, Inc. or one of its Wholly Owned Restricted Subsidiary of the CompanySubsidiaries, the Company Issuer or the entity or Person formed by or surviving any such consolidation or merger (if other than the CompanyXxxxx Holdings), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will shall have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company Xxxxx Holdings immediately preceding the transaction transactions and (B) willshall, at the time of such transaction transactions and after giving pro forma effect thereto as if such transaction transactions had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 4.9 hereof. In connection with any consolidationthe case of a sale, merger assignment, lease, transfer, conveyance or other disposition contemplated by of all or substantially all of the assets of Xxxxx Holdings, upon the assumption provided for in clause (ii) above, Xxxxx Holdings shall be discharged from all further liability and obligation under this provision, Indenture. Nothing contained in this Article shall restrict the Company shall deliverHoldings-Industries Merger, or cause the contribution of substantially all of the assets of the entity surviving the Holdings-Industries Merger, subject to be delivered, substantially all of its liabilities to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied withFoamex.

Merger, Consolidation or Sale of Assets. The Company Neither Issuer shall not consolidate or merge with or into (whether or not the Company such Issuer is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another Person unless (ai) the Company such Issuer is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than one of the CompanyIssuers) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation or other entity organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the Person formed by or surviving any such consolidation or merger (if other than one of the CompanyIssuers) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company such Issuer under the Notes Registration Rights Agreement, the Debentures and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, ; (ciii) immediately after such transaction no Default or Event of Default exists exists; and (div) except in the case of a merger of one of the Company Issuers with or into a Wholly Owned Restricted Subsidiary of the CompanyHoldings, the Company Issuer or the Person formed by or surviving any such consolidation or merger (if other than one of the CompanyIssuers), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) willshall, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof. In connection Notwithstanding the foregoing, Holdings is permitted to reorganize as a corporation in accordance with any consolidation, merger or disposition contemplated by the procedures established in this provision, the Company Indenture (and Grove Holdings Capital may thereafter liquidate); provided that Holdings shall deliver, or cause to be delivered, have delivered to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and Trustee an Opinion of Counsel, each stating Counsel in the United States reasonably acceptable to the Trustee confirming that such consolidationreorganization (and, merger if applicable, liquidation of Grove Holdings Capital) is not adverse to Holders of the Debentures (it being recognized that such reorganization shall not be deemed adverse to Holders of the Debentures solely because (i) of the accrual of deferred tax liabilities resulting from such reorganization or disposition (ii) the successor or surviving corporation (a) is subject to income tax as a corporate entity or (b) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of the Code or any similar state or local law) and the supplemental indenture in respect thereto comply with this provision and that all certain other conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied withare satisfied.

Merger, Consolidation or Sale of Assets. (a) The Company shall not not, directly or indirectly, consolidate or merge with or into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets assets, in one or more related transactions, to another Person unless unless: (ai) the Company is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Registration Rights Agreement, the Notes, the Exchange Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, ; (ciii) immediately after such transaction no Default or Event of Default exists and ( or an event that, with the passing of time or giving of notice or both, would constitute an Event of Default) shall exist or shall occur immediately after giving effect on a pro forma basis to such transaction; (div) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in either clause (i) or (ii) of the first paragraph of Section 4.09 hereof. In connection with ; (v) if, as a result of any consolidationsuch transaction, merger property or disposition contemplated by this provisionassets of the Company would become subject to a Lien subject to the provisions of Section 4.12 hereof, the Company shall deliver, or cause to be delivered, the successor entity to the Trustee, in form Company shall have secured the Notes as required by said covenant; and substance reasonably satisfactory (vi) the Company shall have delivered to the Trustee, Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition transfer and the such supplemental indenture in respect thereto (if any) comply with the Indenture. The Company shall not, directly or indirectly, lease all or substantially all of its properties or assets, in one or more related transactions, to any other Person. The provisions of this provision covenant will not be applicable to a sale, assignment, transfer, conveyance or other disposition of assets solely between or among the Company and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied withits Wholly Owned Restricted Subsidiaries.

Merger, Consolidation or Sale of Assets. The Company shall Issuer will not consolidate or merge with or into (whether or not the Company is the surviving corporation)into, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its the Issuer's consolidated properties or assets in one or more related transactions, to another corporation or other Person unless unless: (ai) the Company Issuer is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the CompanyIssuer) formed by such consolidation or to into which such salethe Issuer is merged or the Person that acquires by conveyance, assignment, transfer, lease, conveyance transfer or other disposition lease substantially all of the properties and assets of the Issuer (the "Surviving Entity") shall have been made is be a corporation organized or and validly existing under the laws of the United States, States or any state thereof or the District of Columbia; (ii) if the Issuer is not the surviving corporation, (b) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made Surviving Entity assumes all the obligations of the Company Issuer under the Notes Securities and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, ; (ciii) immediately after such transaction transaction, no Default or Event of Default exists and exists; (div) except in the case of a merger of the Company Issuer with or into a Wholly Owned Restricted Subsidiary of the CompanyIssuer or a merger entered into solely for the purpose of reincorporating the Issuer in another jurisdiction, the Company Issuer or the Person formed by or surviving any such consolidation or merger (if other than Surviving Entity, as the Company)case may be, or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company Issuer immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness Debt pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in Section 4.12(a); and (v) the first paragraph of Section 4.09 hereof. In connection with any consolidationIssuer or the Surviving Entity, merger or disposition contemplated by this provisionas the case may be, the Company shall deliver, or cause to be delivered, have delivered to the Trustee, in form and substance reasonably satisfactory to the Trustee, Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger merger, sale, assignment transfer, lease, conveyance or other disposition and the and, if a supplemental indenture is required in respect thereto connection with such transaction, such supplemental indenture comply with the applicable provisions of this provision Indenture and that all conditions precedent in the this Indenture provided for relating to such transaction or transactions have been complied withsatisfied.

Merger, Consolidation or Sale of Assets. The Unless provided otherwise in a Supplemental Indenture, the Company shall not consolidate or merge with or into (whether or not the Company is the surviving corporation), another Person or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another Person unless (a) the Company is the surviving corporation of such consolidation or merger or the lessor or transferor in such sale, conveyance, lease or transfer; (b) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (the "Successor Company") (i) is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, and (bii) expressly assumes, by an indenture supplemental hereto, executed and delivered to the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such saleTrustee, assignmentin form reasonably satisfactory thereto, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Notes and this Indenture pursuant to a Supplemental Indenture, including all obligations of the Company for due and punctual payment of principal of, premium, if any, and interest on all Notes, and the performance and observance of all covenants contained herein or in any indenture supplemental indenture in a form reasonably satisfactory to the Trustee, hereto; (c) immediately after such transaction transaction, no Default has occurred or Event of Default exists is continuing; and (d) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the such Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant delivered to the Consolidated Interest Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof. In connection with any consolidation, merger or disposition contemplated by this provision, the Company shall deliver, or cause to be delivered, to the Trustee, in form Trustee and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition sale, transfer, lease or conveyance and the such supplemental indenture in respect thereto comply with this provision Article 5 and that all conditions precedent in the Indenture provided herein for relating to such transaction or transactions have been complied withsatisfied.

Merger, Consolidation or Sale of Assets. The Company shall not, directly or indirectly, in a single transaction or a series of related transactions, (a) consolidate or merge with or into another Person (other than a merger with a Wholly-Owned Restricted Subsidiary solely for the purpose of changing the Company's jurisdiction of incorporation to another State of the United States), or sell, lease, transfer, convey or otherwise dispose of or assign all or substantially all of the assets of the Company or the Company and the Restricted Subsidiaries (taken as a whole) or (b) adopt a Plan of Liquidation unless, in either case: (1) either: (y) the Company will be the surviving or continuing Person; or (z) the Person formed by or surviving such consolidation or merger or to which such sale, lease, conveyance or other disposition shall be made (or, in the case of a Plan of Liquidation, any Person to which assets are transferred) (collectively, the "SUCCESSOR") is a corporation organized and existing under the laws of any State of the United States of America or the District of Columbia, and the Successor expressly assumes, by supplemental indenture in form and substance satisfactory to the Trustee, all of the obligations of the Company under the Notes, this Agreement and the Registration Rights Agreement, (2) immediately prior to and immediately after giving effect to such transaction and the assumption of the obligations as set forth in clause (1)(z) above and the incurrence of any Indebtedness to be incurred in connection therewith, no Default shall have occurred and be continuing, and (3) except in the case of the consolidation or merger of any Wholly-Owned Restricted Subsidiary with or into the Company, immediately after and giving effect to such transaction and the assumption of the obligations set forth in clause (1)(z) above and the incurrence of any Indebtedness to be incurred in connection therewith, and the use of any net proceeds therefrom on a PRO FORMA basis, (i) the Consolidated Net Worth of the Company or the Successor, as the case may be, would be at least equal to the Consolidated Net Worth of the Company immediately prior to such transaction and (ii) the Company or the Successor, as the case may be, could incur $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception. For purposes of this Section 5.01, any Indebtedness of the Successor which was not Indebtedness of the Company immediately prior to the transaction shall be deemed to have been incurred in connection with such transaction. For purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries, the Equity Interests of which constitute all or substantially all of the properties and assets of the Company, will be deemed to be the transfer of all or substantially all of the properties and assets of the Company. Except as provided in Sections 11.05 and 11.06, no Guarantor may consolidate with or merge with or into (whether or not the Company such Guarantor is the surviving corporation)Person) another Person, whether or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another Person unless (a) not affiliated with such Guarantor. Notwithstanding the Company is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United Statesforegoing, any state thereof or the District of Columbia, (b) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, (c) immediately after such transaction no Default or Event of Default exists and (d) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, may merge into the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof. In connection with any consolidation, merger or disposition contemplated by this provision, the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied withanother Restricted Subsidiary.

Merger, Consolidation or Sale of Assets. The Company shall Issuers may not consolidate or merge with or into (whether or not the Company is Issuers are the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its their properties or assets in one or more related transactions, to another corporation, Person or entity unless (ai) the Company such Issuer is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the Companysuch Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or and existing under the laws of the United States, any state thereof or the District of Columbia, Columbia provided that FCC may not consolidate or merge with or into any entity other than a corporation satisfying such requirements for so long as Foamex remains a partnership; (bii) the entity or Person formed by or surviving any such consolidation or merger (if other than the Companysuch Issuer) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company such Issuer under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, ; (ciii) immediately after such transaction no Default or Event of Default exists exists; and (div) except in the case of a merger of the Company an Issuer with or into a one of its Wholly Owned Restricted Subsidiary of the CompanySubsidiaries, the Company Issuer or the entity or Person formed by or surviving any such consolidation or merger (if other than the CompanyIssuer), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will shall have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company such Issuer immediately preceding the transaction and (B) willshall, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof. In connection with any consolidationthe case of a sale, merger assignment, lease, transfer, conveyance or other disposition contemplated by this provisionof all or substantially all of the assets of an Issuer, upon the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture assumption provided for relating to in clause (ii) above, such transaction or transactions have been complied withIssuer shall be discharged from all further liability and obligation under this Indenture.

Merger, Consolidation or Sale of Assets. The Company shall not consolidate or merge with or into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person or entity unless (ai) the Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the entity or Person formed by or surviving any such consolidation or merger (if other than the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Notes Debentures and this Indenture hereunder pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, ; (ciii) immediately after such transaction no Default or Event of Default exists exists; and (div) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will shall have Consolidated Net Worth immediately after the transaction equal to or greater than 90% of the Consolidated Net Worth of the Company immediately preceding the transaction and (B) willshall, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 4.09(a) hereof. In connection with any consolidation, merger or disposition contemplated by this provision, the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied with.

Merger, Consolidation or Sale of Assets. The Company shall may not consolidate or merge with or into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person or entity unless (ai) the Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the entity or Person formed by or surviving any such consolidation or merger (if other than the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Registration Rights Agreement, the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, ; (ciii) immediately after such transaction no Default or Event of Default exists exists; and (div) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) willmade, at the time of such transaction and after giving pro forma effect thereto to such transaction as if such transaction had occurred at the beginning of the applicable four-quarter period, most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding such transaction either (A) would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereofor (B) would have a pro forma Fixed Charge Coverage Ratio that is greater than the actual Fixed Charge Coverage Ratio for the same four-quarter period without giving pro forma effect to such transaction. In connection with Notwithstanding clause (iv) in the immediately foregoing paragraph, (i) any consolidationRestricted Subsidiary may consolidate with, merger merge into or disposition contemplated by this provision, transfer all or part of its properties and assets to the Company shall deliver, and (ii) the Company may merge with an Affiliate that has no significant assets or cause to be delivered, to liabilities and was incorporated solely for the Trustee, purpose of reincorporating the Company in form another State of the United States so long as the amount of Indebtedness of the Company and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied withits Restricted Subsidiaries is not increased thereby.

Merger, Consolidation or Sale of Assets. The Company shall not not, directly or indirectly consolidate or merge with or into another Person (whether or not the Company is the surviving corporation), ) or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person Person; unless (ai) the Company is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Notes and Notes, this Indenture and the Registration Rights Agreement pursuant to a supplemental indenture in a form agreements reasonably satisfactory to the Trustee, ; (ciii) immediately after such transaction no Default or Event of Default exists exists; and (div) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at on the time date of such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof. In connection with any consolidation, merger or disposition contemplated by this provisionaddition, the Company shall delivernot, directly or cause to be deliveredindirectly, lease all or substantially all of its properties or assets, in one or more related transactions, to any other Person. The provisions of this Section 5.01 shall not apply to a sale, assignment, transfer, conveyance or other disposition of assets between or among the Trustee, in form Company and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion any of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied withits Wholly Owned Restricted Subsidiaries.

Merger, Consolidation or Sale of Assets. The Company Borrower shall not consolidate or merge with or into (whether or not the Company Borrower is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person or entity unless (a) the Company Borrower is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the CompanyBorrower) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, (b) the entity or Person formed by or surviving any such consolidation or merger (if other than the CompanyBorrower) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company Borrower under the Notes Term Loans, the Term Notes, this Agreement and this Indenture each other Loan Document to which it is a party pursuant to a supplemental indenture an assumption agreement in a form reasonably satisfactory to the TrusteeAdministrative Agent, (c) immediately after such transaction no Default or Event of Default exists and (d) except in the case of a merger of the Company Borrower with or into a Wholly Owned Restricted Subsidiary of the CompanyBorrower, the Company Borrower or the entity or Person formed by or surviving any such consolidation or merger (if other than the CompanyBorrower), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company Borrower immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma PRO FORMA effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in the first paragraph sentence of Section 4.09 SECTION 7.2.1 hereof. In connection with any consolidation, merger or disposition contemplated by this provision, the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied with.

Merger, Consolidation or Sale of Assets. The Company shall not consolidate or merge with or into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person or entity unless (ai) the Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the entity or Person formed by or surviving any such consolidation or merger (if other than the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Notes Notes, this Indenture, the Pledge and this Indenture Escrow Agreement pursuant to a supplemental indenture Indenture in a form reasonably satisfactory to the Trustee, ; (ciii) immediately after such transaction no Default or Event of Default exists exists; and (div) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction transaction, provided that this clause (A) shall not apply to a merger of the Company with or into its direct parent or with or into a Wholly Owned Subsidiary of its direct parent and (B) will, both at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof. In connection with any consolidation, merger or disposition contemplated by this provision, the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied with.

Merger, Consolidation or Sale of Assets. The Company shall not consolidate or merge with or into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its 57 properties or assets in one or more related transactions, to another corporation, Person or entity unless (ai) the Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the entity or Person formed by or surviving any such consolidation or merger (if other than the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations Obligations of the Company under the Notes and Notes, this Indenture and the Registration Rights Agreement pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, ; (ciii) immediately after such transaction no Default or Event of Default exists and exists; (div) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Indebtedness to Adjusted Operating Cash Flow Ratio test set forth in Section 4.09(a) hereof and (v) each Subsidiary Guarantor, if any, unless it is the first paragraph of Section 4.09 hereof. In connection with any consolidationother party to the transactions described above, merger or disposition contemplated shall have by this provisionsupplemental indenture confirmed that its Subsidiary Guarantee shall apply to such Person's obligations under the Indenture, the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition Notes and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied withRegistration Rights Agreement.

Merger, Consolidation or Sale of Assets. The Company shall not not, directly or indirectly, consolidate or merge with or into (whether or not the Company is the surviving corporation), ) or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactionstransactions to, to another Person unless (ai) the Company is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, (bii) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Notes and this Indenture pursuant to a supplemental indenture under the Securities and this Indenture in a form reasonably satisfactory to the Trustee, (ciii) immediately after such transaction transaction, no Default or Event of Default exists and (div) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test shall satisfy certain financial requirements set forth in the first paragraph of this Indenture or in a Board Resolution, supplemental indenture hereto or an Officer's Certificate pursuant to Section 4.09 2.2 hereof. In connection with The Company may not, directly or indirectly, lease all or substantially all of its properties or assets, in one or more related transactions, to any consolidationother Person. The provisions of this Section 5.1 shall not be applicable to a sale, merger assignment, transfer, conveyance or other disposition contemplated by this provision, or assets between or among the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied withits Wholly Owned Subsidiaries.

Merger, Consolidation or Sale of Assets. The Company ACC shall not consolidate or merge with or into any other Person (whether or not the Company ACC is the surviving corporation), ) or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets (determined on a consolidated basis for ACC and its Restricted Subsidiaries) in one or more related transactions, to another corporation, Person or entity (other than the merger of a Wholly Owned Restricted Subsidiary of ACC into another Wholly Owned Restricted Subsidiary of ACC or into ACC) unless (ai) the Company ACC is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the CompanyACC) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation corporation, limited liability company or other entity organized or existing under the laws of the United States, any state thereof or the District of Columbia, (bii) the entity or Person formed by or surviving any such consolidation or merger (if other than the CompanyACC) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all of the obligations of the Company ACC under the Notes and this Indenture pursuant to a supplemental indenture indenture, in each case in a form reasonably satisfactory to the Trustee, (ciii) immediately after such transaction transaction, no Default or Event of Default exists shall have occurred and be continuing and (div) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company ACC or the entity or Person formed by or surviving any such consolidation or merger (if other than the CompanyACC), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will shall have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company ACC immediately preceding the transaction and (B) willshall, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter periodthereto, be permitted to incur at least $1.00 of additional Indebtedness Debt (other than Permitted Debt) pursuant to the Consolidated Interest Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof. In connection with any consolidation, merger or disposition contemplated by this provision, the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied with.

Merger, Consolidation or Sale of Assets. The Company shall not consolidate or merge with or into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person or entity unless (ai) the Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the entity or Person formed by or surviving any such consolidation or merger (if other than the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Registration Rights Agreement, the Senior Notes and this Indenture pursuant to a supplemental indenture Supplemental Indenture in a the form reasonably satisfactory to the Trustee, of Exhibit F hereto; (ciii) immediately after such transaction no Default or Event of Default exists and exists; (div) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof. In connection with any consolidation; and (v) each Subsidiary Guarantor, merger or disposition contemplated by this provision, unless it is the Company shall deliver, or cause to be delivered, other party to the Trusteetransactions described above, shall have by Supplemental Indenture in form and substance reasonably satisfactory attached hereto as Exhibit F confirmed that its Subsidiary Guarantee shall apply to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger Company's or disposition the surviving Person's obligations under this Indenture and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied withSenior Notes.

Merger, Consolidation or Sale of Assets. (a) The Company shall may not consolidate or merge with or into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person or entity unless (ai) the Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the entity or Person formed by or surviving any such consolidation or merger (if other than the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Registration Rights Agreement, the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, ; (ciii) immediately after such transaction no Default or Event of Default exists exists; and (div) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of the covenant described in Section 4.09 4.9 hereof. In connection with any consolidation, merger or disposition contemplated by this provision, the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied with.

Merger, Consolidation or Sale of Assets. The Company shall not consolidate or merge with or into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactionstransactions to, to another Person unless (a) the Company is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, (b) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, (c) immediately after such transaction no Default or Event of Default exists and (d) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in the first paragraph of Section 4.09 hereoftransaction. In connection with any consolidation, merger or disposition contemplated by this provision, the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, (i) an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the any supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied withwith and (ii) an Opinion of Counsel stating that the requirements of Section 5.01(a) and (b) have been satisfied.

Merger, Consolidation or Sale of Assets. The Company shall not may not, directly or indirectly, consolidate or merge with or into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets assets, in one or more related transactions, to another Person corporation, person or entity unless (ai) the Company is the surviving corporation or the Person entity or the Persons formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition deposition shall have been made (the "Surviving Entity") is a corporation Person organized or and existing under the laws of the United StatesStates of America, any state State thereof or the District of Columbia, ; (bii) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under is not the Notes Surviving Entity, the Surviving Entity expressly and this Indenture pursuant unconditionally assumes by supplemental indenture, executed and delivered to a supplemental indenture the Trustee in a form reasonably satisfactory to the Trustee, all obligations of the Company on the Notes issued and outstanding under this Indenture; (ciii) immediately after such transaction no Default or Event of Default exists and exists; (div) except in the case of a merger of a Wholly-Owned Subsidiary of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have a Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of immediately after such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at as of the beginning end of the applicable four-quarter periodquarter, be permitted to incur at least $1.00 of additional Indebtedness Debt pursuant to the Consolidated Interest Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof. In connection with any consolidation, merger or disposition contemplated by this provision, 4.7; and (v) the Company or the Surviving Entity, as applicable, shall deliver, have delivered or cause caused to be delivered, delivered to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating to the effect that such consolidation, merger merger, sale, assignment, transfer, lease, conveyance or other disposition and the supplemental indenture in respect thereto comply complies with this provision Indenture and that all conditions precedent provided in the Indenture provided for relating to such transaction or transactions clauses (i) through (v) above have been complied with.

Merger, Consolidation or Sale of Assets. The Company shall not not, directly or indirectly, consolidate or merge with or into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactionstransactions to, to another Person unless (ai) the Company is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, (bii) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Registration Rights Agreement, the Pledge Agreement, the Security Agreement, the Notes and this Indenture pursuant to a supplemental indenture agreements in a form reasonably satisfactory to the Trustee, (ciii) immediately after such transaction transaction, no Default or Event of Default exists and (div) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will shall have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) willshall, at on the time date of such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Total Consolidated Interest Coverage Ratio Indebtedness to Adjusted Consolidated Operating Cash Flow ratio test set forth in clause (a) of the first paragraph of Section 4.09 hereof. In connection with any consolidation, merger or disposition contemplated by this provisionaddition, the Company shall delivernot, directly or cause to be deliveredindirectly, lease all or substantially all of its properties or assets, in one or more related transactions, to any other Person. The provisions of this Section 5.01 shall not be applicable to a sale, assignment, transfer, conveyance or other disposition of assets between or among the Trustee, in form Company and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied withits Wholly Owned Restricted Subsidiaries.

Merger, Consolidation or Sale of Assets. The Company shall not consolidate or merge with or into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another Person unless (ai) the Company is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation or limited liability company organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, ; (ciii) immediately prior to and immediately after such transaction no Default or Event of Default exists exists; and (div) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof. In connection with any consolidation, merger or disposition contemplated by For purposes of this provisionSection 5.01, the Company shall deliversale, lease, conveyance, assignment, transfer, or cause other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be deliveredthe transfer of all or substantially all of the properties and assets of the Company. Clause (iv) of the foregoing paragraph will not prohibit (a) a merger between the Company and a Wholly Owned Subsidiary of Holding created for the purpose of holding the Capital Stock of the Company, to (b) a merger between the TrusteeCompany and a Wholly Owned Subsidiary of the Company or (c) a merger between the Company and an Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States so long as, in form the case of each of clause (a), (b) and substance reasonably satisfactory to (c), the Trustee, an Officers' Certificate amount of Indebtedness of the Company and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied withits Restricted Subsidiaries is not increased thereby.

Merger, Consolidation or Sale of Assets. The Company shall not consolidate or merge with or into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another Person unless (ai) the Company is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Senior Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory substantially similar to the Trustee, Exhibit E hereto; (ciii) immediately after --------- such transaction no Default or Event of Default exists and exists; (div) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 4.08 hereof; and (v) each Subsidiary Guarantor, unless it is the other party to the transactions described above, shall have by supplemental indenture in a form substantially similar to Exhibit E hereto --------- confirmed that its Subsidiary Guarantee shall apply to the Company's or the surviving Person's obligations under this Indenture and the Senior Notes. In connection with any consolidation, merger or disposition transfer of assets contemplated by this provisionSection 5.01, the Company shall will deliver, or cause to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition transfer and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture herein provided for relating to such transaction or transactions have been complied with.

Merger, Consolidation or Sale of Assets. The Company shall not may consolidate or merge with or into (whether or not the Company is the surviving corporation)into, convert itself into, or sell, assign, transfer, lease, convey or otherwise dispose of (including any such disposition that might be deemed to occur as a result of the conversion of the Company into another form of organization) all or substantially all of its properties or assets in one or more related transactions, to another Person unless (other than an individual, a government or an agency or political subdivision of a government), but only if (a) the Company is the surviving corporation entity; or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, (b) the Person formed by or surviving any such consolidation consolidation, merger or merger conversion (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Notes Securities and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, Trustee and either (cA) immediately after such transaction no Default or Event of Default exists and (d) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the Person formed by or surviving any such consolidation consolidation, merger or merger conversion (if other than the Company), ) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after is a Person organized or existing under the transaction equal to or greater than the Consolidated Net Worth laws of the Company immediately preceding United States, any state thereof or the transaction and District of Columbia or (B) willif not organized or existing under the laws of the United States, at any state thereof or the time District of Columbia, the Person agrees to be subject to the service of process of the laws of the State of New York and, under the laws of its jurisdiction or organization, payments on the Securities would not be subject to withholding tax; and in any event (c) immediately after such transaction no Default or Event of Default exists. If the Company requests the Trustee to enter into any supplemental indenture, or to take any other action, as a result of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof. In connection with any consolidation, merger merger, sale, assignment, transfer, lease, conveyance or disposition contemplated by this provisionother disposition, the Company shall deliver, or cause to be delivered, will also furnish to the Trustee, in form and substance reasonably satisfactory to the Trustee, Trustee an Officers' ’ Certificate and an Opinion of Counsel, each stating to the effect that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent set forth in the Indenture provided for relating to such transaction or transactions this Section 5.01 have been complied with.

Merger, Consolidation or Sale of Assets. The Company shall not consolidate or merge with or into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person or entity unless (a) the Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, (b) the entity or Person formed by or surviving any such consolidation or merger (if other than the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, (c) immediately after such transaction no Default or Event of Default exists and (d) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Adjusted Consolidated Interest Coverage Leverage Ratio test set forth in the first paragraph of Section 4.09 hereof. In connection with any consolidation, merger or disposition contemplated by this provisionNotwithstanding the foregoing, the Company Merger shall deliver, or cause to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied withpermitted.

Merger, Consolidation or Sale of Assets. The Neither the Company nor any of its Restricted Subsidiaries shall not consolidate or merge with or into (whether or not the Company or such Restricted Subsidiary is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another Person unless (ai) the Company is the surviving corporation or such Restricted Subsidiary is the surviving entity, as the case may be, or the Person formed by or surviving any such consolidation or merger (if other than the CompanyCompany or such Restricted Subsidiary) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation (in the case of the Company) or a corporation or other entity (in the case of such Restricted Subsidiary) organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the Person formed by or surviving any such consolidation or merger (if other than the CompanyCompany or such Restricted Subsidiary) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Notes Notes, this Indenture, the Pledge Agreement and this Indenture the Registration Rights Agreement, or of such Restricted Subsidiary under its Subsidiary Guarantee, as the case may be, pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, ; (ciii) immediately after such transaction no Default or Event of Default exists exists; and (div) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (Aa) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (Bb) will, at the time of immediately after such transaction and after giving pro forma effect thereto and to any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Debt to Cash Flow Ratio test set forth in the first paragraph of Section 4.09 hereof. In connection with The Company and its Restricted Subsidiaries shall not, directly or indirectly, lease all or substantially all of their properties or assets, in one or more related transactions, to any consolidationother Person. The provisions of this Section 5.01 will not be applicable to a sale, merger assignment, transfer, conveyance or other disposition contemplated by this provision, of assets between or among the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion any of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied withits Restricted Subsidiaries.

Merger, Consolidation or Sale of Assets. The Company shall will not consolidate or merge with or into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another Person unless Person, unless: (ai) the Company is the resulting, transferee or surviving corporation Person or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which whom such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations and covenants of the Company under the Notes this Agreement and this Indenture all other Term Loan Documents pursuant to a supplemental indenture appropriate documentation in a form and substance reasonably satisfactory to the Trustee, Collateral Agent and the Administrative Agent; (ciii) immediately before and after such transaction no Default or Event of Default exists shall have occurred and be continuing; and (div) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the CompanySubsidiary, the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which whom such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 5.09 hereof; provided, however, that this clause (iv) shall be suspended for so long as the Company and its Restricted Subsidiaries are not subject to the Suspended Covenants subject to Section 5.19 hereof. In connection with any consolidation, merger or disposition contemplated by this provisionaddition, the Company shall deliverwill not, directly or cause to be deliveredindirectly, lease all or substantially all of its properties or assets, in one or more related transactions, to any other Person. This Section 6.01 will not apply to a sale, assignment, transfer, conveyance or other disposition of assets between or among the Trustee, in form Company and substance reasonably satisfactory to any of the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied withGuarantors.

Merger, Consolidation or Sale of Assets. The Company shall not consolidate or merge with or into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person or entity unless (ai) the Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the entity or Person formed by or surviving any such consolidation or merger (if other than the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, Trustee that is executed in accordance with the provisions of Section 9.01 hereof; (ciii) immediately after such transaction no Default or Event of Default exists exists; and (div) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the Company)merger, or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will shall have a Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) willshall, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage EBITDA Ratio test set forth in the first paragraph of Section 4.09 hereof. In connection with Notwithstanding the foregoing, any consolidation, merger or disposition contemplated by this provision, Restricted Subsidiary of the Company shall deliverbe permitted to consolidate with, merge with or cause to be delivered, into or transfer all or part of its properties or assets to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger Company or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied withanother Restricted Subsidiary.

Merger, Consolidation or Sale of Assets. The Company Neither of the Issuers shall not consolidate or merge with or into or wind up into (whether or not the Company such entity is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactionstransactions to, to another any Person unless (ai) the Company or Venetian, as the case may be, is the surviving corporation Person or the Person formed by or surviving any such consolidation or merger (if other than the CompanyCompany or Venetian) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation Person organized or existing under the laws of the United States, any state thereof or thereof, the District of Columbia, or any territory thereof; (bii) the Person formed by or surviving any such consolidation or merger (if other than the CompanyCompany or Venetian) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company Issuers under the Notes and this Indenture and the Collateral Documents pursuant to a supplemental indenture or other documents or instruments in a form reasonably satisfactory to the Trustee, Mortgage Note Trustee under the Mortgage Notes and this Indenture; (ciii) immediately after such transaction no Default or Event of Default exists and exists; (div) except such transaction will not result in the case loss or suspension or material impairment of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, any material Gaming License; (v) the Company or the Venetian or any Person formed by or surviving any such consolidation or merger (if other than the Company)merger, or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will shall have Consolidated Net Worth (immediately after the transaction but prior to any purchase accounting adjustments resulting from the transaction) equal to or greater than the Consolidated Net Worth of the Company or Venetian immediately preceding the transaction and (B) willshall, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof; and (vi) such transactions would not require any Holder of Mortgage Notes (other than any Person acquiring the Company or Venetian or their assets or any Affiliate thereof) to obtain a gaming license or be qualified under the laws of any applicable gaming jurisdiction; provided that such Holder would not have been required to obtain a gaming license or be qualified under the laws of any applicable gaming jurisdiction in the absence of such transactions. In connection with any consolidation, merger or disposition contemplated by this provisionNotwithstanding the foregoing, the Company shall deliver, Issuers may consolidate or cause to be delivered, to merge with or wind up into each other without meeting the Trustee, requirements set forth in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied withclause (v) above.

Merger, Consolidation or Sale of Assets. The Company Holding shall not consolidate or merge with or into (whether or not the Company Holding is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another Person unless (ai) the Company Holding is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the CompanyHolding) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the entity or Person formed by or surviving any such consolidation or merger (if other than the CompanyHolding) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company Holding under the Notes Debentures and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, ; (ciii) immediately after such transaction no Default or Event of Default exists exists; and (div) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company Holding or the entity or Person formed by or surviving any such consolidation or merger (if other than the CompanyHolding), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (Ba) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereofhereof or (b) would (together with its Restricted Subsidiaries) have a higher Fixed Charge Coverage Ratio immediately after such transaction (after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period) than the Fixed Charge Coverage Ratio of Holding and its subsidiaries immediately prior to the transaction. In connection with any consolidationThe foregoing clause (iv) will not prohibit (a) a merger between Holding and a Wholly Owned Subsidiary of Acquisition Corp. created for the purpose of holding the Capital Stock of Holding, (b) a merger between Holding and a Wholly Owned Subsidiary or disposition contemplated by this provision(c) a merger between Holding and an Affiliate incorporated solely for the purpose of reincorporating Holding in another state of the United States so long as, in each case, the Company shall deliveramount of Indebtedness of Holding and its Restricted Subsidiaries is not increased thereby. The Indenture will also provide that Holding may not, directly or cause to be deliveredindirectly, lease all or substantially all of its properties or assets, in one or more related transactions, to the Trusteeany other Person. The provisions of this Section 5.01 will not be applicable to a sale, in form assignment, transfer, conveyance or other disposition of assets between or among Holding and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied withits Wholly Owned Restricted Subsidiaries.

Merger, Consolidation or Sale of Assets. The Company shall not consolidate or merge with or into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another Person unless (ai) the Company is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the entity or Person formed by or surviving any such consolidation or merger (if other than the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, ; (ciii) immediately after such transaction no Default or Event of Default exists exists; and (div) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (Ba) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereofhereof or (b) would (together with its Restricted Subsidiaries) have a higher Fixed Charge Coverage Ratio immediately after such transaction (after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period) than the Fixed Charge Coverage Ratio of the Company and its subsidiaries immediately prior to the transaction. In connection with any consolidationThe foregoing clause (iv) will not prohibit (a) a merger between the Company and a Wholly Owned Subsidiary of Acquisition Corp. or Holding created for the purpose of holding the Capital Stock of the Company, (b) a merger between the Company and a Wholly Owned Subsidiary or disposition contemplated by this provision(c) a merger between the Company and an Affiliate incorporated solely for the purpose of reincorporating the Company in another state of the United States so long as, in each case, the amount of Indebtedness of the Company shall deliverand its Restricted Subsidiaries is not increased thereby. The Indenture will also provide that the Company may not, directly or cause to be deliveredindirectly, lease all or substantially all of its properties or assets, in one or more related transactions, to any other Person. The provisions of this Section 5.01 will not be applicable to a sale, assignment, transfer, conveyance or other disposition of assets between or among the Trustee, in form Company and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied withits Wholly Owned Restricted Subsidiaries.

Merger, Consolidation or Sale of Assets. The Company shall not consolidate Enter into any merger, ---------------------------------------- consolidation or merge similar combination with or into (whether or not the Company is the surviving corporation)any other Person, or sell, assign, transfer, lease, convey assign, or otherwise dispose of (in one transaction or a series of transactions) all or substantially all any substantial part of its properties assets, or assets in one permit any Subsidiary to do so, except (i) the Company or more related transactionsany Material Subsidiary may, subject to another Person unless Section 10.4, merge with any corporation provided (a) the Company or such Material Subsidiary, as the case may be, is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such salecorporation, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, and (b) the Person formed by or surviving any immediately prior to and after giving effect to such consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, (c) immediately after such transaction no Default or Event of Default exists and or would exist, (dii) except in the case of a merger of any Subsidiary may merge or consolidate with the Company with or into a Wholly Owned Restricted Subsidiary of the Company, (provided that the Company is the surviving corporation) or the Person formed by or surviving with any such consolidation or merger other Subsidiary, (if other than the Company), or to which such sale, assignmentiii) any Subsidiary may sell, transfer, lease, conveyance assign or otherwise dispose of any of its assets to the Company or any Material Subsidiary, and (iv) the Company and its Subsidiaries may sell, transfer, lease, assign and otherwise dispose of assets which (a) have a value less than $50,000 or which, when aggregated with the value of all other assets sold, transferred, leased, assigned or otherwise disposed of during the same fiscal month of the Company, have a value less than $200,000 and (b) have a value greater than the values set forth in sub-clause (a) with the consent of the Bank, which consent the Bank agrees to provide to the Company or such Subsidiary not later than two (2) Business Days following the Company's or such Subsidiary's written request therefor in the limited circumstance that such written request (1) identifies each asset to be sold, transferred, leased, assigned or otherwise disposed of exactly as such asset is identified in the Personal Property Appraisal, (2) identifies the value assigned to each such asset in the Personal Property Appraisal, (3) identifies the consideration to be received for each such asset, which consideration must be greater than the value assigned to each such asset in the Personal Property Appraisal and (4) confirms --- that the Company or such Subsidiary shall receive the entire consideration for such sale, transfer, lease, assignment or other disposition shall have been made (A) will have Consolidated Net Worth of assets in immediately after the transaction equal available funds in Dollars prior to or greater than on the Consolidated Net Worth date of such sale, provided in the case of each of sub-clause (a) and (b) that the Company immediately preceding the transaction and (B) will, at the time of or such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in the first paragraph of Subsidiary strictly complies with Section 4.09 hereof. In connection with any consolidation, merger or disposition contemplated by this provision, the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied with4.4(a).

Merger, Consolidation or Sale of Assets. The Company shall not (a) Neither of the Obligors shall, directly or indirectly, consolidate or merge with or into (whether or not the Company such Obligor is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its the properties or assets of such Obligor and its Material Subsidiaries taken as a whole, in one or more related transactionstransactions to, to another Person unless (ai) the Company such Obligor is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the Companysuch Obligor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, (bii) the Person formed by or surviving any such consolidation or merger (if other than the Companysuch Obligor) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company Obligors under the Registration Rights Agreement, the Security Agreements, the Intercreditor Agreements, the Notes and this Indenture Agreement pursuant to a supplemental indenture agreements in a form reasonably satisfactory to the TrusteeMajority Holders, (ciii) immediately after such transaction transaction, no Default or Event of Default exists and (div) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company such Obligor or the Person formed by or surviving any such consolidation or merger (if other than the Companysuch Obligor), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will shall have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company such Obligor immediately preceding the transaction and (B) willshall, at on the time date of such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of such Obligor's latest four fiscal quarters for which consolidated financial statements of such Obligor are available immediately preceding the applicable date of such transaction, have a ratio of Total Consolidated Indebtedness to Adjusted Consolidated Operating Cash Flow for such four-quarter period, be permitted period less than 6.0 to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof1.0. In connection with addition, each Obligor shall not, directly or indirectly, lease all or substantially all of its properties or assets, in one or more related transactions, to any other Person. The provisions of this Section 8.11(a) shall not be applicable to a consolidation, merger merger, sale, assignment, transfer, conveyance or other disposition contemplated by this provision, of properties or assets between or among (i) either Obligor and its Material Subsidiaries or (ii) the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied withObligors.

Merger, Consolidation or Sale of Assets. The Company shall not consolidate or merge with or into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person or entity unless (ai) the Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the entity or Person formed by or surviving any such consolidation or merger (if other than the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations Obligations of the Company under the Notes and Notes, this Indenture and the Registration Rights Agreement pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, ; (ciii) immediately after such transaction no Default or Event of Default exists and exists; (div) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Indebtedness to Adjusted Operating Cash Flow Ratio test set forth in Section 4.09(a) hereof and (v) each Subsidiary Guarantor, if any, unless it is the first paragraph of Section 4.09 hereof. In connection with any consolidationother party to the transactions described above, merger or disposition contemplated shall have by this provisionsupplemental indenture confirmed that its Subsidiary Guarantee shall apply to such Person's obligations under the Indenture, the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition Notes and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied withRegistration Rights Agreement.

Merger, Consolidation or Sale of Assets. The Company shall may not consolidate or merge with or into (whether or not the Company is the surviving corporationentity), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person unless or entity unless: (ai) the Company is the surviving corporation entity or the entity or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the entity or Person formed by or surviving any such consolidation or merger (if other than the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Senior Subordinated Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, ; (ciii) immediately after such transaction transaction, no Default or Event of Default exists exists; and (div) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the Company), ) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (Aa) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (Bb) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof. In connection with any consolidation, merger or disposition contemplated by this provision, the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied with.

Merger, Consolidation or Sale of Assets. The Company shall not consolidate or merge with or into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person or entity unless (ai) the Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the entity or Person formed by or surviving any such consolidation or merger (if other than the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Registration Rights Agreement, the Senior Notes and this Senior Note Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Senior Note Trustee, ; (ciii) immediately after such transaction no Default or Event of Default exists exists; and (div) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period, (A) the entity surviving such consolidation or merger would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 or (B) the Fixed Charge Coverage Ratio for the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth would, immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, not be permitted less than such Fixed Charge Coverage Ratio for the Company and its Restricted Subsidiaries immediately prior to incur at least $1.00 such transaction. The Company may not, directly or indirectly, lease all or substantially all of additional its properties or assets, in one or more related transactions, to any other Person. The provisions of this Section 5.01 will not be applicable to a sale, assignment, transfer, conveyance or other disposition of assets between or among the Company and its Restricted Subsidiaries. Notwithstanding the foregoing clause (iv), (i) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Company and (ii) the Company may merge with an Affiliate that has no significant assets or liabilities and was formed solely for the purpose of changing the jurisdiction of organization of the Company in another State of the United States or the form of organization of the Company so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby and provided that the successor assumes all the obligations of the Company under the Registration Rights Agreement, the Senior Notes and this Senior Note Indenture pursuant to the Consolidated Interest Coverage Ratio test set forth a supplemental indenture in the first paragraph of Section 4.09 hereof. In connection with any consolidation, merger or disposition contemplated by this provision, the Company shall deliver, or cause to be delivered, to the Trustee, in a form and substance reasonably satisfactory to the Senior Note Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied with.

Merger, Consolidation or Sale of Assets. The Company shall not Issuer or Issuers holding all or substantially all of the assets of the Issuers on a combined basis will not, directly or indirectly, consolidate or merge with or into (whether or not the Company such Issuer is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its the properties or assets of the Issuers on a combined basis in one or more related transactions, to another Person unless (ai) the Company such Issuer is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the Companysuch Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a Person organized or existing under the laws of the United States, any state thereof or the District of Columbia; provided that the Issuers agree that so long as the Senior Discount Notes are outstanding at least one of the Issuers shall be a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the Person formed by or surviving any such consolidation or merger (if other than the Companysuch Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company such Issuer under the Senior Discount Notes and this the Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, ; (ciii) immediately before and after such transaction no Default or Event of Default exists shall have occurred; and (div) except in the case of a merger of the Company such Issuer with or into a Wholly Owned Restricted Subsidiary of the Companysuch Issuer, the Company Issuer or the Person formed by or surviving any such consolidation or merger (if other than the Companysuch Issuer), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after made, together with the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) surviving Issuers, will, at the time of immediately before and after such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter periodquarter, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof4.9. In connection with any consolidationNone of the Issuers may, merger directly or disposition contemplated by this provisionindirectly, the Company shall deliverlease all or substantially all of its properties or assets, in one or cause to be deliveredmore related transactions, to any other Person. Notwithstanding the Trusteeforegoing, in (a) any or all of the Issuers may merge or consolidate with or transfer substantially all of its assets to an Affiliate that has no significant assets or liabilities and was formed solely for the purpose of changing the jurisdiction of organization of such Issuer or the form of organization of such Issuer, provided that the amount of Indebtedness of such Issuer and substance reasonably satisfactory to its Restricted Subsidiaries is not increased thereby and provided, further, that the Trustee, an Officers' Certificate and an Opinion successor assumes all obligations of Counsel, each stating that such consolidation, merger or disposition Issuer under the Indenture and the supplemental indenture Registration Rights Agreement and (b) nothing in respect thereto comply with this provision and that all conditions precedent in Section 5.1 shall be deemed to prevent the Indenture provided for relating to such transaction or transactions have been complied withconsummation of the Reorganization.

Merger, Consolidation or Sale of Assets. The Company shall not consolidate consolidate, or merge with or into (whether or not the Company is the surviving corporation), ) or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person or entity unless (ai) the Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation consolidation, or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the entity or Person formed by or surviving any such consolidation or merger (if other than the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, ; (ciii) immediately after such transaction transaction, no Default or Event of Default exists exists; (iv) each of the Subsidiary Guarantors confirms its obligations under the Subsidiary Guarantees and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee and (dv) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof. In connection with any consolidation, merger or disposition contemplated by this provision, the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied with.4.9.(a)

Merger, Consolidation or Sale of Assets. The Company shall not consolidate or merge with or into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another corporation, Person or entity unless (ai) the Company is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the entity or Person formed by or surviving any such consolidation or merger (if other than the Company) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Notes and this Indenture pursuant to a supplemental indenture indentures in a form forms reasonably satisfactory to the Trustee, ; (ciii) immediately after such transaction no Default or Event of Default exists exists; and (div) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) will, both at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio Debt to Cash Flow test set forth in the first paragraph of Section 4.09 5.05 hereof. In connection with any consolidation, merger or disposition contemplated by this provision, the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied with.

Merger, Consolidation or Sale of Assets. The Company shall not not, directly or indirectly, consolidate or merge with or into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets of the Company and its Subsidiaries taken as a whole, in one or more related transactionstransactions to, to another Person unless (ai) the Company is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, (bii) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Notes and Notes, this Indenture and the Collateral Documents pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, (ciii) immediately after such transaction transaction, no Default or Event of Default exists and (div) except such transaction would not result in the case loss or suspension or material impairment of any Gaming License unless a merger of the Company comparable replacement Gaming License is effective prior to or simultaneously with such loss, suspension or into a Wholly Owned Restricted Subsidiary of the Company, material impairment; (v) the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made made: (Aa) will shall have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction transaction; and (Bb) willshall, at on the time date of such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in clause (ii) of the first paragraph of Section 4.09 hereof; and (vi) such transaction would not require any Holder or beneficial owner of Notes to obtain a Gaming License or be qualified or found suitable under the law of any applicable gaming jurisdiction; provided that such Holder or beneficial owner would not have been required to obtain a Gaming License or be qualified or found suitable under the laws of any applicable gaming jurisdiction in the absence of such transaction. In connection with any consolidation, merger or disposition contemplated by this provisionaddition, the Company shall delivernot, directly or cause to be deliveredindirectly, lease all or substantially all of its properties or assets, in one or more related transactions, to any other Person. The provisions of this Section 5.01 shall not be applicable to a sale, assignment, transfer, conveyance or other disposition of assets between or among the Trustee, in form Company and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion any of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied withits Wholly Owned Subsidiaries.

Merger, Consolidation or Sale of Assets. The Company Neither Issuer shall not consolidate or merge with or into (whether or not the Company such Issuer is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another Person unless (ai) the Company such Issuer is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than one of the CompanyIssuers) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation Person or other entity organized or existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the entity or Person formed by or surviving any such consolidation or merger (if other than one of the CompanyIssuers) or the entity or Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company such Issuer under the Notes Registration Rights Agreement, the Debentures and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, ; (ciii) immediately after such transaction no Default or Event of Default exists and exists; (div) except in the case of a merger of one of the Company Issuers with or into a Wholly Owned Restricted Subsidiary of the Company, the Company Grove Investors or the Person formed by or surviving any such consolidation or merger (if other than one of the CompanyIssuers), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) willshall, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof. In connection with any consolidation, merger or disposition contemplated by this provision, the Company shall deliver, or cause to be delivered, ; and (v) Grove Investors has delivered to the Trustee, in form and substance reasonably satisfactory to the Trustee, Trustee an Officers' Officer's Certificate and an Opinion of Counsel, each stating that such consolidation, merger merger, sale, assignment, transfer, lease, conveyance or other disposition and the such supplemental indenture in respect thereto comply complies with this provision Indenture and that all conditions precedent in the Indenture provided for in this Indenture relating to such transaction or transactions have been complied with. Notwithstanding the foregoing, Grove Investors is permitted to reorganize as a corporation in accordance with the procedures established in this Indenture (and Grove Investors Capital may thereafter liquidate); PROVIDED that Grove Investors shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that such reorganization (and, if applicable, liquidation of Grove Investors Capital) is not adverse to Holders of the Debentures (it being recognized that such reorganization shall not be deemed adverse to the Holders of the Debentures solely because (i) of the accrual of deferred tax liabilities resulting from such reorganization or (ii) the successor or surviving corporation (a) is subject to income tax as a corporate entity or (b) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of the Code or any similar state or local law) and certain other conditions are satisfied.

Merger, Consolidation or Sale of Assets. The Company Issuer shall not not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company Issuer is the surviving corporation), ; or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its the properties or assets of the Issuer and its Subsidiaries, taken as a whole, in one or more related transactions, to another Person unless Person; unless: (1) either: (a) the Company Issuer is the surviving corporation corporation; or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, (b) the Person formed by or surviving any such consolidation or merger (if other than the CompanyIssuer) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia; (2) the Person formed by or surviving any such consolidation or merger (if other than the Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have has been made (if other than the Issuer) assumes all the obligations of the Company Issuer's Obligations under the Notes and Notes, this Indenture and the Registration Rights Agreement pursuant to a supplemental indenture in a form agreements reasonably satisfactory to the Trustee, ; (c3) immediately after such transaction no Default or Event of Default exists exists; and (d4) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company Issuer or the Person formed by or surviving any such consolidation or merger (if other than the CompanyIssuer), or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made: (a) shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Issuer's Consolidated Net Worth of the Company immediately preceding the transaction transaction; and (Bb) willshall, at on the time date of such transaction and after giving pro forma effect thereto and any related financing transactions as if such transaction the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof. In connection with any consolidation, merger or disposition contemplated by this provisionaddition, the Company Issuer shall delivernot, directly or cause to be deliveredindirectly, lease all or substantially all of its properties or assets, in one or more related transactions, to any other Person. This Section 5.01 shall not apply to a sale, assignment, transfer, conveyance or other disposition of assets between or among the TrusteeIssuer and its Restricted Subsidiaries and shall not apply to a sale, in form and substance reasonably satisfactory to assignment, transfer, conveyance or other disposition of all or any portion of the Trustee, an Officers' Certificate and an Opinion assets of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied withUnrestricted Subsidiaries.

Merger, Consolidation or Sale of Assets. The Company Issuer shall not consolidate or merge with or into (whether or not the Company Issuer is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another Person unless (ai) the Company Issuer is the surviving corporation or the entity or the Person formed by or surviving any such consolidation or merger (if other than the CompanyIssuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or and existing under the laws of the United States, any state thereof or the District of Columbia, ; (bii) the entity or Person formed by or surviving any such consolidation or merger (if other than the Company) such Issuer), or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made made, assumes all the obligations of the Company such Issuer under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, ; (ciii) immediately after such transaction no Default or Event of Default exists exists; and (div) except in the case of a merger of the Company Issuer with or into a one of its Wholly Owned Restricted Subsidiary of the CompanySubsidiaries, the Company Issuer or the entity or Person formed by or surviving any such consolidation or merger (if other than the CompanyIssuer), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (B) willshall, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, (A) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereofhereof and (B) have a Consolidated Net Worth in an amount which is not less than the Consolidated Net Worth of the Issuer immediately prior to such transaction. Notwithstanding the foregoing clauses (iii) and (iv), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Issuer and (b) the Issuer may merge with an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another jurisdiction. In connection with any consolidationthe case of a sale, merger assignment, lease, transfer, conveyance or other disposition contemplated by this provisionof all or substantially all of the assets of the Issuer, upon the assumption provided for in clause (ii) above, the Company Issuer shall deliver, or cause to be delivered, discharged from all further liability and obligation under this Indenture. Prior to the Trusteeproposed transaction, in form and substance reasonably satisfactory the Issuer shall deliver to the Trustee, Trustee an Officers' Certificate and an Opinion of Counsel, Counsel each stating of which shall state that such consolidation, merger or disposition transfer and the such supplemental indenture in respect thereto comply with this provision Article 5 and that all conditions precedent in the Indenture herein provided for relating to such transaction or transactions have been complied with.

Merger, Consolidation or Sale of Assets. The Company shall Issuer may not consolidate or merge with or into (whether or not the Company Issuer is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another Person unless (a) the Company Issuer is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the CompanyIssuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia, (b) the Person formed by or surviving any such consolidation or merger (if other than the CompanyIssuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations of the Company Issuer under the Notes Registration Rights Agreement, the Debentures and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee, (c) immediately after such transaction no Default or Event of Default exists and (d) except in the case of a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the Company, the Company Issuer or the Person formed by or surviving any such consolidation or merger (if other than the CompanyIssuer), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (Bi) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereofhereof or (ii) would (together with its Restricted Subsidiaries) have a higher Fixed Charge Coverage Ratio immediately after such transaction (after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period) than the Fixed Charge Coverage Ratio of the Issuer and its Restricted Subsidiaries immediately prior to such transaction. In connection with any consolidationThe foregoing clause (d) will not prohibit (a) a merger between the Issuer and an Affiliate of the Issuer created for the purpose of holding the Capital Stock of the Issuer, (b) a merger between the Issuer and a Wholly Owned Restricted Subsidiary or disposition contemplated by this provision(c) a merger between the Issuer and an Affiliate incorporated solely for the purpose of reincorporating the Issuer in another State of the United States so long as, in each case, the Company amount of Indebtedness of the Issuer and its Restricted Subsidiaries is not increased thereby. The Issuer shall deliver, not lease all or cause substantially all of its assets to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and the supplemental indenture in respect thereto comply with this provision and that all conditions precedent in the Indenture provided for relating to such transaction or transactions have been complied withany Person.