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

Merger, Consolidation or Sale of Assets. (a) The Issuer shall not directly or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not it is the surviving corporation); or (2) sell, assign, lease, transfer, convey or otherwise dispose of all or substantially all of its properties or assets, taken as a whole, in one or more related transactions, to another Person, unless: (1) either: (a) the Issuer is the surviving corporation; or (b) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issuer) or to which such sale, assignment, lease, transfer, conveyance or other disposition has been made (the “Surviving Person”) is a Person organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if such Surviving Person is not a corporation, a Restricted Subsidiary that is a corporation shall become a co-obligor of the Notes pursuant to a supplemental indenture reasonably satisfactory to the Trustee; (2) the Surviving Person (if other than the Issuer) assumes all the obligations of the Issuer under the Notes and this Indenture pursuant to a supplemental indenture reasonably satisfactory to the Trustee; (3) immediately after such transaction, no Default or Event of Default exists; (4) any of the following is true: (a) on the date of 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, the Issuer, or the Surviving Person, would be permitted to incur at least $1.00 of additional Indebtedness pursuant to Section 4.10(a); (b) the Fixed Charge Coverage Ratio of the Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, would be greater than or equal to the actual Fixed Charge Coverage Ratio of the Issuer immediately prior to such transaction; or (c) the Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer immediately prior to such transaction; and (5) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating that such consolidation, merger or amalgamation, or sale, assignment, lease, transfer, conveyance or other disposition and such supplemental indenture, if any, comply with this Indenture and constitutes the legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms. (b) Sections 5.01(a)(1) through (5) above and Section 5.01(d)(1) shall not apply to: (a) any Restricted Subsidiary of the Issuer merging, amalgamating or consolidating with or into the Issuer or another Restricted Subsidiary; or (b) the transfer of assets between or among the Issuer’s Restricted Subsidiaries, or from any of the Issuer’s Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3), (4) and (5) above shall not apply to the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the assets of the Issuer to an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing the Issuer in another state in the United States and/or for the sole purpose of forming or collapsing a holding company structure. (c) The Surviving Person shall succeed to, and be substituted for, and may exercise every right and power of the Issuer under this Indenture. In the case of a lease, however, the Issuer shall not be released from any of the obligations or covenants under this Indenture. (d) Unless the Note Guarantee of the applicable Subsidiary Guarantor is permitted to be released in connection with such transaction as described in Section 4.16 or Section 10.06, such Subsidiary Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or amalgamate or merge with or into (whether or not it is the surviving Person) another Person, other than the Issuer or another Subsidiary Guarantor, unless: (1) immediately after giving effect to that transaction, no Default or Event of Default exists; and (2) either: (a) the Person (if other than the Issuer or a Subsidiary Guarantor) acquiring the property in any such sale or disposition or the Person (if other than the Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation or merger assumes all the obligations of that Subsidiary Guarantor, as applicable, under this Indenture and its Note Guarantee pursuant to a supplemental indenture reasonably satisfactory to the Trustee; or (b) such transfer does not violate Section 4.11.

Merger, Consolidation or Sale of Assets. (a) The Issuer shall not Neither of the Issuers may, directly or indirectly: (1) consolidate, amalgamate consolidate or merge with or into another Person (whether or not it such Issuer is the surviving corporationentity); or (2) sell, assign, transfer, lease, transfer, convey or otherwise dispose of all or substantially all of its the properties or assetsassets of the Issuers and the Restricted Subsidiaries, taken as a whole, in one or more related transactions, to another Person, unless: (1) either: (aA) the such Issuer is the surviving corporationentity; or (bB) the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the such Issuer) or to which such sale, assignment, lease, transfer, conveyance or other disposition has been made (the “Surviving Person”) is a Person organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided provided, however, that if Finance Corp. may not consolidate or merge with or into any Person other than a corporation satisfying such Surviving Person requirement so long as Xxxxx Energy Partners is not a corporation, a Restricted Subsidiary that is a corporation shall become a co-obligor of the Notes pursuant to a supplemental indenture reasonably satisfactory to the Trustee; (2) the Surviving Person formed by or surviving any such consolidation or merger (if other than the such Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made assumes all the obligations of the such Issuer under the Notes and Notes, this Indenture and the Registration Rights Agreement pursuant to a supplemental indenture agreements reasonably satisfactory to the Trustee; (3) immediately after such transaction, no Default or Event of Default exists;; and (4) in the case of a transaction involving Xxxxx Energy Partners and not Finance Corp., Xxxxx Energy Partners or the Person formed by or surviving any of the following is truesuch consolidation or merger (if other than Xxxxx Energy Partners), or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made, will: (aA) on the date of 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 periodReference Period, the Issuer, or the Surviving Person, would be permitted to incur at least $1.00 of additional Indebtedness pursuant to Section 4.10(a); (b) the Fixed Charge Coverage Ratio test set forth in Section 4.09(a); or (B) have a Fixed Charge Coverage Ratio, on the date of the Issuer or the Surviving Person, such transaction and after giving pro forma effect to such transaction thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter periodReference Period, would be greater not less than or equal to the actual Fixed Charge Coverage Ratio of the Issuer immediately prior to such transaction; or (c) the Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer Xxxxx Energy Partners immediately prior to such transaction; and (5) the such Issuer shall have has delivered to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel Counsel, each stating that such consolidation, merger or amalgamation, or sale, assignment, lease, transfer, conveyance or other disposition and such supplemental indenture, indenture (if any, ) comply with this Indenture and constitutes the legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms. (b) Sections 5.01(a)(1) through (5) above and all conditions precedent therein relating to such transaction have been satisfied. provided that this Section 5.01(d)(1) shall not apply to: (a) any Restricted Subsidiary of the Issuer merging, amalgamating or consolidating with or into the Issuer or another Restricted Subsidiary; or (b) the transfer of assets between or among the Issuer’s Restricted Subsidiaries, or from any of the Issuer’s Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3), (4) and (5) above shall 5.01 will not apply to the any sale, assignment, transfer, conveyance, transfer, lease or other disposition of all assets between or substantially all among Xxxxx Energy Partners and its Restricted Subsidiaries, provided further that Sections 5.01(a)(3) and (4) will not apply to any merger or consolidation of the assets Xxxxx Energy Partners (A) with or into one of the Issuer to its Restricted Subsidiaries for any purpose or (B) with or into an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing the Issuer Xxxxx Energy Partners in another state jurisdiction. (b) Notwithstanding Section 5.01(a), Xxxxx Energy Partners is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that: (1) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of Xxxxx Energy Partners into a form of entity other than a limited partnership formed under Delaware law; (2) the entity so formed by or resulting from such reorganization is an entity organized or existing under the laws of the United States and/or States, any state thereof or the District of Columbia; (3) the entity so formed by or resulting from such reorganization assumes all the Obligations of Xxxxx Energy Partners under the Notes, this Indenture and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Trustee; (4) immediately after such reorganization no Default or Event of Default exists; and (5) such reorganization is not adverse to the Holders of the Notes (for purposes of this clause (5) it is stipulated that such reorganization shall not be considered adverse to the sole purpose Holders of forming the Notes solely because the successor or collapsing a holding company structuresurvivor of such reorganization (a) is subject to federal or state income taxation as an entity or (b) is considered to be an “includible corporation” of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law). (c) The Surviving Person shall succeed to, and be substituted for, and may exercise every right and power of the Issuer under this Indenture. In the case of a lease, however, the Issuer shall not be released from any of the obligations or covenants under this Indenture. (d) Unless the Note Guarantee of the applicable Subsidiary Guarantor is permitted to be released in connection with such transaction as described in Section 4.16 or Section 10.06, such Subsidiary A Guarantor may not sell or otherwise dispose of all or substantially all of its properties or assets to, or consolidate with or amalgamate or merge with or into (whether or not it such Guarantor is the surviving Person) ), another Person, other than the Issuer Xxxxx Energy Partners or another Subsidiary Guarantor, unless: (1) immediately after giving effect to that such transaction, no Default or Event of Default exists; and (2) either: (aA) the Person (if other than the Issuer or a Subsidiary Guarantor) acquiring the property properties or assets in any such sale or other disposition or the Person (if other than the Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation merger (if other than Xxxxx Energy Partners or merger the Guarantor) unconditionally assumes all the obligations of that Subsidiary Guarantor, as applicable, under this Indenture and its Note Guarantee pursuant to a supplemental indenture reasonably satisfactory to substantially in the Trusteeform specified in this Indenture, under the Notes, this Indenture and its Subsidiary Guarantee on terms set forth herein and therein; or (bB) the Net Proceeds of such transfer does not violate sale or other disposition are applied in accordance with Section 4.114.10 hereof.

Merger, Consolidation or Sale of Assets. (a) The Neither Issuer shall not directly or indirectly: (1) consolidate, amalgamate consolidate with or merge with or into another Person (whether or, directly or not it is the surviving corporation); or (2) indirectly, sell, assign, lease, transfer, convey or otherwise dispose of transfer all or substantially all of its properties assets (such amounts to be computed on a consolidated basis), whether in a single transaction or assets, taken as a whole, in one or more series of related transactions, to another PersonPerson or group of affiliated Persons, unless: (1) either: either (a) the applicable Issuer is the surviving corporation; or continuing entity or (b) the Person formed by resulting, surviving or surviving any such consolidation, amalgamation or merger (if other than the Issuer) or to which such sale, assignment, lease, transfer, conveyance or other disposition has been made (the “Surviving Person”) transferee entity is a Person corporation organized or existing under the laws of the United States, any state of the United States thereof or the District of Columbia; provided that if such Surviving Person is not a corporation, a Restricted Subsidiary that is a corporation shall become a co-obligor Columbia and expressly assumes by supplemental indenture all of the applicable Issuer’s obligations in connection with the Notes pursuant to a supplemental indenture reasonably satisfactory to the Trusteeand this Indenture; (2) the Surviving Person (if other than the Issuer) assumes all the obligations no Default or Event of the Issuer under the Notes and this Indenture pursuant Default shall exist or shall occur immediately after giving effect on a pro forma basis to a supplemental indenture reasonably satisfactory to the Trusteesuch transaction; (3) immediately after such transaction, no Default or Event of Default exists; (4) any of the following is true: (a) on the date of giving effect to such transaction after giving on a pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter periodbasis, the Issuerconsolidated resulting, surviving or the Surviving Person, transferee entity would immediately thereafter be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Debt Incurrence Ratio set forth in Section 4.10(a); (b) 4.7 herein or, if not, the Fixed Charge Coverage Debt Incurrence Ratio of the Issuer or the Surviving Person, after giving on a pro forma effect to such transaction and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, basis would be greater than the Debt Incurrence Ratio immediately prior thereto; provided, that this clause (3) shall not apply to a transaction that constitutes (a) solely the merger of an Issuer and one of its previously existing Wholly Owned Subsidiaries which is also a Subsidiary Guarantor for the purpose of reincorporation into another jurisdiction or equal to (b) solely the actual Fixed Charge Coverage Ratio merger or consolidation of the (i) an Issuer and Parent so long as immediately prior to such transaction; or merger or consolidation Parent had no operations and no assets other than the ownership of the Company’s Equity Interests (cor other operations or assets solely incidental thereto), or (ii) the Indebtedness to Consolidated Tangible Net Worth Ratio merger or consolidation of the Issuer or Issuers, and in the Surviving Personcase of each of clauses (a) and (b) of this paragraph (3), after giving pro forma effect to such transaction is not for the purpose of evading this provision and not in connection with any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer immediately prior to such other transaction; and (54) each guarantor of the Issuer Notes (including Parent and each Subsidiary Guarantor) that survives the transaction shall have delivered confirmed in writing to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating that such consolidation, merger or amalgamation, or sale, assignment, lease, transfer, conveyance or other disposition and such supplemental indenture, if any, comply with this Indenture and constitutes its Guarantee shall apply to the legal, valid and binding obligation obligations of the applicable Issuer enforceable against it or the surviving entity in accordance with its terms. (b) Sections 5.01(a)(1) through (5) above the Notes and Section 5.01(d)(1) shall not apply to: (a) any Restricted Subsidiary of the Issuer merging, amalgamating or consolidating with or into the Issuer or another Restricted Subsidiary; or (b) the transfer of assets between or among the Issuer’s Restricted Subsidiaries, or from any of the Issuer’s Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3), (4) and (5) above shall not apply to the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the assets of the Issuer to an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing the Issuer in another state in the United States and/or for the sole purpose of forming or collapsing a holding company structure. (c) The Surviving Person shall succeed to, and be substituted for, and may exercise every right and power of the Issuer under this Indenture. In the case of a lease, however, the Issuer shall not be released from any of the obligations or covenants under this Indenture. (d) Unless the Note Guarantee of the applicable Subsidiary Guarantor is permitted to be released in connection with such transaction as described in Section 4.16 or Section 10.06, such Subsidiary Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or amalgamate or merge with or into (whether or not it is the surviving Person) another Person, other than the Issuer or another Subsidiary Guarantor, unless: (1) immediately after giving effect to that transaction, no Default or Event of Default exists; and (2) either: (a) the Person (if other than the Issuer or a Subsidiary Guarantor) acquiring the property in any such sale or disposition or the Person (if other than the Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation or merger assumes all the obligations of that Subsidiary Guarantor, as applicable, under this Indenture and its Note Guarantee pursuant to a supplemental indenture reasonably satisfactory to the Trustee; or (b) such transfer does not violate Section 4.11.

Merger, Consolidation or Sale of Assets. (a) The Issuer shall not will not, directly or indirectly: (1) consolidate, amalgamate consolidate or merge with or into another Person, (2) consummate a Division as the Dividing Person (whether or not it the Issuer is the surviving corporation); entity) or (23) sell, assign, lease, transfer, convey convey, lease or otherwise dispose of all or substantially all of its the properties or assets, assets of the Issuer and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another PersonPerson (other than in connection with the Transactions), unless: (1) either: : (a) the Issuer is the surviving corporationPerson; or or (b) the Person formed by or surviving any such consolidation, amalgamation merger or merger Division (if other than the Issuer) or to which such sale, assignment, lease, transfer, conveyance conveyance, lease or other disposition has been made (the “Surviving Person”) is a Person an entity organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if Columbia (such Person, the “Surviving Person is not a corporation, a Restricted Subsidiary that is a corporation shall become a co-obligor of the Notes pursuant to a supplemental indenture reasonably satisfactory to the TrusteeEntity”); (2) the Surviving Person Entity (if other than the Issuer) or the Person to which such sale, assignment, transfer, conveyance, lease or other disposition has been made assumes all the obligations of the Issuer under the Notes and this Indenture Indenture, pursuant to a supplemental indenture reasonably satisfactory indenture, and the Security Documents pursuant to the Trusteeterms thereof, as applicable; (3) immediately after such transaction, no Default or Event of Default exists; (4) any of the following is true: (a) on Issuer or the date of such transaction Surviving Entity would, 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, the Issuer, or the Surviving Person, would (a) be permitted to incur at least $1.00 of additional Indebtedness pursuant to Section 4.10(a); as Ratio Debt, (b) the have had a Fixed Charge Coverage Ratio of the Issuer equal to or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, would be greater than or equal to the actual Fixed Charge Coverage Ratio of for the Issuer immediately prior to for such transaction; or four-quarter period or (c) the Indebtedness have had a Consolidated Total Debt Ratio equal to Consolidated Tangible Net Worth Ratio of or less than such ratio for the Issuer or the Surviving Person, after giving pro forma effect to for such transaction and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer immediately prior to such transaction; andfour-quarter period; (5) the Issuer Surviving Entity (if other than the Issuer) shall have delivered deliver, or cause to be delivered, to the Trustee an Officer’s Certificate and an Opinion of Counsel Counsel, each stating to the effect that such consolidation, merger or amalgamationmerger, or Division, sale, assignment, lease, transfer, conveyance or other disposition and such supplemental indenture, if any, comply with this Indenture and constitutes the legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms. (b) Sections 5.01(a)(1) through (5) above and Section 5.01(d)(1) shall not apply to: (a) any Restricted Subsidiary of the Issuer merging, amalgamating or consolidating with or into the Issuer or another Restricted Subsidiary; or (b) the transfer of assets between or among the Issuer’s Restricted Subsidiaries, or from any of the Issuer’s Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3), (4) and (5) above shall not apply to the saleconveyance, assignment, conveyance, transfer, lease or other disposition complies with the requirements of this Indenture; (6) to the extent any property or assets of the Surviving Entity are property or assets of the type that would constitute Collateral under the Security Documents, the Surviving Entity shall take such action as may be reasonably necessary or required to cause such property and assets to be made subject to a Lien securing the Notes pursuant to this Indenture and the Security Documents in the manner and to the extent required by this Indenture or any of the Security Documents and shall take all reasonably necessary action so that such Lien is perfected, preserved and protected to the extent required by this Indenture and the Security Documents; (7) the Collateral owned by or sold, assigned, conveyed, leased, transferred or otherwise disposed of to the Surviving Entity shall (a) continue to constitute Collateral under this Indenture and the Security Documents, (b) be subject to the Lien in favor of the Notes Collateral Agent for the benefit of itself, the Trustee and the holders of the Notes and (c) not be subject to any Lien other than Permitted Liens or other Liens as permitted pursuant to Section 4.12 hereof; and (8) the Surviving Entity (if other than the Issuer) shall become a party to the Intercreditor Agreements by joinder or supplement. (b) Section 5.01(a) will not apply to any sale, assignment, transfer, conveyance, lease, Division or other disposition of assets between or among the Issuer and any Guarantor. Clauses (3) and (4) of Section 5.01(a) will not apply to (a) any merger, consolidation or amalgamation of any Restricted Subsidiary with or into the Issuer, (b) any consolidation, amalgamation or merger of the Issuer into, or sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all part of the properties and assets of the Issuer to to, any Guarantor, (c) a merger, consolidation or amalgamation of the Issuer with or into an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing the Issuer in another state in jurisdiction so long as the amount of Indebtedness of the Issuer and its Restricted Subsidiaries is not increased thereby or (d) the conversion of the Issuer or a Restricted Subsidiary into a corporation, partnership, limited partnership, limited liability company or trust, organized or existing under the laws of the United States and/or for States, any state thereof or the sole purpose District of forming Columbia. In addition, the Issuer or collapsing a holding company structureany Restricted Subsidiary may change its name. (c) For the avoidance of doubt, the Ultimate Issuer Merger may occur without compliance with Section 5.01(a). The Surviving Person shall succeed to, Ultimate Issuer will provide written notice to the Trustee and be substituted for, and may exercise every right and power Notes Collateral Agent upon consummation of the Ultimate Issuer under this Indenture. In the case of a lease, however, the Issuer shall not be released from any of the obligations or covenants under this IndentureMerger. (d) Unless the Note Guarantee of the applicable Subsidiary Guarantor is permitted to be released in connection with such transaction as described in Section 4.16 or Section 10.06, such Subsidiary Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or amalgamate or merge with or into (whether or not it is the surviving Person) another Person, other than the Issuer or another Subsidiary Guarantor, unless: (1) immediately after giving effect to that transaction, no Default or Event of Default exists; and (2) either: (a) the Person (if other than the Issuer or a Subsidiary Guarantor) acquiring the property in any such sale or disposition or the Person (if other than the Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation or merger assumes all the obligations of that Subsidiary Guarantor, as applicable, under this Indenture and its Note Guarantee pursuant to a supplemental indenture reasonably satisfactory to the Trustee; or (b) such transfer does not violate Section 4.11.

Merger, Consolidation or Sale of Assets. (a) The Issuer shall not not, directly or indirectly: (1) consolidate, amalgamate consolidate or merge with or into another Person (whether or not it the Issuer is the surviving corporation); or (2) , and the Issuer will not sell, assign, lease, transfer, convey or otherwise dispose of all or substantially all of its the properties or assets, assets of the Issuer and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another PersonPerson (including by way of consolidation or merger), unless: (1) either: : (aA) the Issuer is the surviving corporation; or corporation or (bB) the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the Issuer) or to which such sale, assignment, lease, transfer, conveyance or other disposition has shall have been made (the “Surviving Person”) is a Person corporation, partnership or limited liability company organized or existing under the laws of the United States, any state of the United States thereof, any territory thereof or the District of ColumbiaColumbia (such Person, as the case may be, being herein called the “Successor Company”); provided that if that, in the case such Surviving Person is not a corporationlimited liability company or a partnership, such Person will form a Restricted Wholly Owned Subsidiary that is a corporation shall and cause such Subsidiary to become a co-obligor issuer of the Notes pursuant to a supplemental indenture reasonably satisfactory to the TrusteeNotes; (2) the Surviving Person Successor Company (if other than the Issuer) expressly assumes all the obligations of the Issuer Issuer, as the case may be, under the Notes Notes, this Indenture, the Security Documents and this Indenture pursuant to a supplemental indenture reasonably satisfactory to the TrusteeRegistration Rights Agreement; (3) immediately after such transactiontransaction and any related financing transactions, no Default or Event of Default exists;; and (4) any of the following is true: (a) on the date of such transaction immediately after giving pro forma effect thereto and any related financing transactions to such transaction as if the same such transaction had occurred at the beginning of the applicable four-quarter period, (A) the Issuer, or the Surviving Person, Successor Company would be permitted to incur Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.10(a); ) or (bB) the Fixed Charge Coverage Ratio of for the Issuer or Successor Company and the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, Restricted Subsidiaries would be greater than or equal to the actual Fixed Charge Coverage Ratio of the Issuer such ratio immediately prior to such transaction; or. (b) Notwithstanding clauses (3) and (4) of Section 5.01(a), the Issuer may merge or consolidate with a Restricted Subsidiary incorporated solely for the purposes of organizing the Issuer in another jurisdiction. (c) the Indebtedness The Issuer shall not, directly or indirectly, lease all or substantially all of its properties or assets, in one or more related transactions, to Consolidated Tangible Net Worth Ratio of the Issuer or the Surviving any other Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer immediately prior to such transaction; and. (5d) the Issuer shall have delivered This Section 5.01 will not apply to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating that such consolidation, merger or amalgamation, or a sale, assignment, lease, transfer, conveyance or other disposition and such supplemental indenture, if any, comply with this Indenture and constitutes the legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms. (b) Sections 5.01(a)(1) through (5) above and Section 5.01(d)(1) shall not apply to: (a) any Restricted Subsidiary of the Issuer merging, amalgamating or consolidating with or into the Issuer or another Restricted Subsidiary; or (b) the transfer of assets between or among the Issuer’s Restricted Subsidiaries, or from Issuer and any of the Issuer’s its Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3), (4) and (5) above shall not apply to the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the assets of the Issuer to an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing the Issuer in another state in the United States and/or for the sole purpose of forming or collapsing a holding company structurethat are Guarantors. (c) The Surviving Person shall succeed to, and be substituted for, and may exercise every right and power of the Issuer under this Indenture. In the case of a lease, however, the Issuer shall not be released from any of the obligations or covenants under this Indenture. (d) Unless the Note Guarantee of the applicable Subsidiary Guarantor is permitted to be released in connection with such transaction as described in Section 4.16 or Section 10.06, such Subsidiary Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or amalgamate or merge with or into (whether or not it is the surviving Person) another Person, other than the Issuer or another Subsidiary Guarantor, unless: (1) immediately after giving effect to that transaction, no Default or Event of Default exists; and (2) either: (a) the Person (if other than the Issuer or a Subsidiary Guarantor) acquiring the property in any such sale or disposition or the Person (if other than the Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation or merger assumes all the obligations of that Subsidiary Guarantor, as applicable, under this Indenture and its Note Guarantee pursuant to a supplemental indenture reasonably satisfactory to the Trustee; or (b) such transfer does not violate Section 4.11.

Merger, Consolidation or Sale of Assets. (a) The Issuer Suburban Propane shall not not, directly or indirectly: (1) consolidate, amalgamate consolidate or merge with or into another Person (whether or not it Suburban Propane is the surviving corporationentity); or (2) sell, assign, lease, transfer, convey or otherwise dispose of all or substantially all of its the properties or assets, assets of Suburban Propane and its Restricted Subsidiaries taken as a whole, in one or more related transactionstransactions to, to another Person, ; unless: (1i) either: : (aA) the Issuer Suburban Propane is the surviving corporationentity; or or (bB) the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the IssuerSuburban Propane) or to which such sale, assignment, lease, transfer, conveyance or other disposition has been made (the “Surviving Person”) is a Person corporation, partnership or limited liability company organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if such Surviving Person is not a corporation, a Restricted Subsidiary that is a corporation shall become a co-obligor of the Notes pursuant to a supplemental indenture reasonably satisfactory to the Trustee; (2ii) the Surviving Person formed by or surviving any such consolidation or merger (if other than Suburban Propane) or the Issuer) Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Issuer Suburban Propane under the Notes and this Supplemental Indenture pursuant to a supplemental indenture reasonably satisfactory in form to the Trustee; (3iii) immediately after such transaction, no Default or Event of Default exists;; and (4iv) Suburban Propane or the Person formed by or surviving any of the following is true: such consolidation or merger (a) if other than Suburban Propane), or to which such sale, assignment, transfer, conveyance or other disposition has been made will, on the date of 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, the Issuer, or the Surviving Person, would (x) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Fixed Charge Coverage Ratio test set forth in Section 4.10(a);10.10(a) hereof or (y) the Consolidated Fixed Charge Coverage Ratio would not be less than the Consolidated Fixed Charge Coverage Ratio immediately prior to such transaction or transactions. (b) Finance Corp. shall not (1) consolidate or merge with or into another Person (whether or not Finance Corp. is the Fixed Charge Coverage Ratio surviving corporation); or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the Issuer properties or assets of Finance Corp. in one or more related transactions to, another Person; unless: (i) Finance Corp. is the surviving Person, or the Surviving PersonPerson formed by or surviving any such consolidation or merger (if other than Finance Corp.) 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; (ii) the Person formed by or surviving any such consolidation or merger (if other than Finance Corp.) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of Finance Corp., under the Notes and this Supplemental Indenture pursuant to agreements reasonably satisfactory to the Trustee; (iii) immediately after such transaction no Default or Event of Default exists; and (iv) Finance Corp or the Person formed by or surviving any such consolidation or merger (if other than Finance Corp), or to which such sale, assignment, transfer, conveyance or other disposition has been made will, on the date of such transaction after giving pro forma effect to such transaction thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, would (x) be greater than or equal permitted to incur at least $1.00 of additional Indebtedness pursuant to the actual Consolidated Fixed Charge Coverage Ratio of test set forth in Section 10.10(a) hereof or (y) the Issuer Consolidated Fixed Charge Coverage Ratio would not be less than the Consolidated Fixed Charge Coverage Ratio immediately prior to such transaction; ortransaction or transactions. (c) If Suburban Propane engages in a merger, consolidation or sale of assets in accordance with the Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer provisions described in Section 8.01(a), Suburban Propane or the Surviving Person, after giving pro forma effect to Person formed by or surviving such transaction and will comply with Section 10.19. (d) The Issuers may not, directly or indirectly, lease all or substantially all of their properties or assets, in one or more related transactions, to any related financing transactions as if other Person. This Section 8.01 will not apply to: (i) a merger of Suburban Propane with an Affiliate solely for the same had occurred at the end purpose of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer immediately prior to such transactionre-forming Suburban Propane in another jurisdiction; and (5ii) any sale, transfer, assignment, conveyance, lease or other disposition of assets between or among Suburban Propane and its Restricted Subsidiaries. (e) Notwithstanding the Issuer foregoing, Suburban Propane shall be permitted to reorganize as a corporation in accordance with the terms of this Supplemental Indenture; provided, that Suburban Propane shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating reasonably acceptable to the Trustee confirming that such consolidation, merger or amalgamation, or sale, assignment, lease, transfer, conveyance or other disposition and such supplemental indenture, if any, comply with this Indenture and constitutes the legal, valid and binding obligation reorganization is not adverse to Holders of the Issuer enforceable against Notes (it in accordance with its terms. (b) Sections 5.01(a)(1) through (5) above and Section 5.01(d)(1) being recognized that such reorganization shall not apply to: 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) any Restricted Subsidiary of the Issuer merging, amalgamating or consolidating with or into the Issuer or another Restricted Subsidiary; 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 transfer meaning of assets between or among the Issuer’s Restricted SubsidiariesInternal Revenue Code of 1986, as amended, or from any of the Issuer’s Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3similar state or local law), (4) and (5) above shall not apply to the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the assets of the Issuer to an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing the Issuer in another state in the United States and/or for the sole purpose of forming or collapsing a holding company structure. (c) The Surviving Person shall succeed to, and be substituted for, and may exercise every right and power of the Issuer under this Indenture. In the case of a lease, however, the Issuer shall not be released from any of the obligations or covenants under this Indenture. (d) Unless the Note Guarantee of the applicable Subsidiary Guarantor is permitted to be released in connection with such transaction as described in Section 4.16 or Section 10.06, such Subsidiary Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or amalgamate or merge with or into (whether or not it is the surviving Person) another Person, other than the Issuer or another Subsidiary Guarantor, unless: (1) immediately after giving effect to that transaction, no Default or Event of Default exists; and (2) either: (a) the Person (if other than the Issuer or a Subsidiary Guarantor) acquiring the property in any such sale or disposition or the Person (if other than the Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation or merger assumes all the obligations of that Subsidiary Guarantor, as applicable, under this Indenture and its Note Guarantee pursuant to a supplemental indenture reasonably satisfactory to the Trustee; or (b) such transfer does not violate Section 4.11.

Merger, Consolidation or Sale of Assets. (a) The Issuer shall not will not, directly or indirectly: (1a) consolidate, amalgamate consolidate or merge with or into another Person (whether or not it the Issuer is the surviving corporation); or (2b) sell, assign, lease, transfer, convey convey, lease or otherwise dispose of all or substantially all of its the properties or assets, assets of the Issuer and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless: (1) either: : (ai) the Issuer is the surviving corporation; or or (bii) the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the Issuer) or to which such sale, assignment, lease, transfer, conveyance or other disposition has been made (the “Surviving Person”) is a Person an entity organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that and, if such Surviving Person entity is not a corporation, a Restricted Subsidiary that is a corporation shall become a co-obligor of the Notes pursuant to is a supplemental indenture reasonably satisfactory to the Trusteecorporation organized or existing under any such laws; (2) the Surviving Person formed by or surviving any such consolidation or merger (if other than the Issuer) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Issuer under the Notes and Notes, this Indenture and the Security Documents pursuant to a supplemental indenture agreements reasonably satisfactory to the Trustee; (3) immediately after such transaction, no Default or Event of Default existsshall have occurred and be continuing; (4) the Issuer or the Person formed by or surviving any of such consolidation or merger (if other than the following is true: (a) Issuer), or to which such sale, assignment, transfer, conveyance or other disposition has been made would, on the date of 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, the Issuer, or the Surviving Person, would (i) be permitted to incur at least $1.00 of additional Indebtedness pursuant to Section 4.10(a); (b) the Fixed Charge Coverage Ratio of the Issuer test set forth in Section 4.08(a) hereof or the Surviving Person, after giving pro forma effect (ii) have had a Fixed Charge Coverage Ratio equal to such transaction and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, would be or greater than or equal to the actual Fixed Charge Coverage Ratio of for the Issuer immediately prior to for such transaction; or (c) the Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer immediately prior to such transactionfour-quarter period; and (5) the Issuer or the Person formed by or surviving any such consolidation or merger (if other than the Issuer) shall have delivered to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel Counsel, each stating that such consolidation, merger or amalgamationtransfer and such supplemental indentures, or security agreements and other documents and instruments comply with this Indenture. This Section 5.01 will not apply to any sale, assignment, lease, transfer, conveyance conveyance, lease or other disposition and such supplemental indenture, if any, comply with this Indenture and constitutes the legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms. (b) Sections 5.01(a)(1) through (5) above and Section 5.01(d)(1) shall not apply to: (a) any Restricted Subsidiary of the Issuer merging, amalgamating or consolidating with or into the Issuer or another Restricted Subsidiary; or (b) the transfer of assets between or among the Issuer’s Issuer and its Restricted Subsidiaries, or from any of the Issuer’s Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3), (45.01(3) and (55.01(4) above shall hereof will not apply to the sale, assignment, conveyance, transfer, lease any merger or other disposition of all or substantially all of the assets consolidation of the Issuer to (a) with or into one of its Restricted Subsidiaries for any purpose or (b) with or into an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing the Issuer in another state in the United States and/or for the sole purpose of forming or collapsing a holding company structurejurisdiction. (c) The Surviving Person shall succeed to, and be substituted for, and may exercise every right and power of the Issuer under this Indenture. In the case of a lease, however, the Issuer shall not be released from any of the obligations or covenants under this Indenture. (d) Unless the Note Guarantee of the applicable Subsidiary Guarantor is permitted to be released in connection with such transaction as described in Section 4.16 or Section 10.06, such Subsidiary Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or amalgamate or merge with or into (whether or not it is the surviving Person) another Person, other than the Issuer or another Subsidiary Guarantor, unless: (1) immediately after giving effect to that transaction, no Default or Event of Default exists; and (2) either: (a) the Person (if other than the Issuer or a Subsidiary Guarantor) acquiring the property in any such sale or disposition or the Person (if other than the Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation or merger assumes all the obligations of that Subsidiary Guarantor, as applicable, under this Indenture and its Note Guarantee pursuant to a supplemental indenture reasonably satisfactory to the Trustee; or (b) such transfer does not violate Section 4.11.

Merger, Consolidation or Sale of Assets. (a) The Issuer shall not not, directly or indirectly: (1x) consolidate, merge or amalgamate or merge with or into another Person (whether or not it the Issuer is the surviving corporation); or (2y) sell, assign, lease, transfer, convey or otherwise dispose of all or substantially all of its the properties or assets, assets of the Issuer and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless: (1i) either: (a1) the Issuer is the surviving corporation; or (b2) the Person (the “Successor Issuer”) formed by or surviving any such consolidation, merger or amalgamation or merger (if other than the Issuer) or to which such sale, assignment, lease, transfer, conveyance or other disposition has been made (the “Surviving Person”) is a Person organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if such Surviving Person Columbia and is not a corporation, a Restricted Subsidiary that is either (A) a corporation shall become or (B) a limited partnership or limited liability company and is (or has previously been) joined by a corporation as a co-obligor issuer of the Notes pursuant to a supplemental indenture reasonably satisfactory to the TrusteeNotes; (2ii) the Surviving Person (if other than the Issuer) any Successor Issuer assumes all the obligations of the Issuer under the Notes Notes, this Indenture, the Registration Rights Agreement and this Indenture the Security Documents and pursuant to a supplemental indenture agreements reasonably satisfactory to the TrusteeTrustee and the Collateral Agent; (3iii) immediately after such transaction, no Default or Event of Default exists;; and (4iv) any either (1) Parent (or the parent of the following is true: (aSuccessor Issuer, as the case may be) would, on the date of 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, the Issuer, or the Surviving Person, would be permitted to incur at least $1.00 of additional Indebtedness pursuant to Section 4.10(a); (b) the Fixed Charge Coverage Ratio test set forth in Section 4.11(a); or (2) Parent (or the parent of the Successor Issuer, as the case may be) would have a Fixed Charge Coverage Ratio equal to or greater than the actual Fixed Charge Coverage Ratio of Parent for the four-quarter period immediately prior to such transaction. In addition, the Issuer will not, directly or indirectly, lease all or substantially all of the properties and assets of the Issuer and its respective Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person. Sections 5.01(a)(iii) and (iv) will not apply to: (i) a merger, amalgamation or consolidation of the Issuer with an Affiliate solely for the purpose of (a) reorganizing the Issuer as a different type of entity; provided that in the case where the surviving entity in such merger, amalgamation or consolidation is not a corporation, a corporation becomes (or has previously become) a co-issuer of the Notes, or (b) reincorporating or reorganizing the Issuer in another jurisdiction; or (ii) any consolidation, amalgamation or merger, or any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Issuer and its Restricted Subsidiaries. (b) Parent will not, directly or indirectly: (i) consolidate, merge or amalgamate with or into another Person (whether or not the Issuer is the surviving corporation); or (ii) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of Parent and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless: (i) either: (1) Parent is the surviving corporation; or (2) the Person (the “Successor Parent”) formed by or surviving any such consolidation, merger or amalgamation (if other than the Issuer) or to which such sale, assignment, transfer, conveyance or other disposition has been made is organized or existing under the laws of the United States, any state of the United States or the Surviving PersonDistrict of Columbia; (ii) the Successor Parent assumes all the obligations of Parent under its Note Guarantee, this Indenture, the Registration Rights Agreement and the Security Documents and pursuant to agreements reasonably satisfactory to the Trustee and the Collateral Agent; (iii) immediately after such transaction, no Default or Event of Default exists; and (iv) either: (1) Parent or Successor Parent (as the case may be) would, on the date of 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, 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 above under the caption “—Incurrence of Indebtedness and Issuance of Preferred Stock”; or (2) Parent or the Successor Parent (as the case may be), after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, would be have a Fixed Charge Coverage Ratio equal to or greater than or equal to the actual Fixed Charge Coverage Ratio of Parent for the Issuer four-quarter period immediately prior to such transaction; or (c) the Indebtedness to Consolidated Tangible Net Worth Ratio transaction and related transactions. In addition Parent will not, directly or indirectly, lease all or substantially all of the Issuer properties and assets of Parent and its respective Restricted Subsidiaries taken as a whole, in one or the Surviving more related transactions, to any other Person, after giving pro forma effect to such transaction . Sections 5.01(b)(iii) and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer immediately prior to such transaction; and (5iv) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating that such consolidation, merger or amalgamation, or sale, assignment, lease, transfer, conveyance or other disposition and such supplemental indenture, if any, comply with this Indenture and constitutes the legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms. (b) Sections 5.01(a)(1) through (5) above and Section 5.01(d)(1) shall will not apply to: (i) a merger, amalgamation or consolidation of Parent with an Affiliate solely for the purpose of (a) any Restricted Subsidiary reorganizing Parent as a different type of the Issuer mergingentity, amalgamating or consolidating with or into the Issuer or another Restricted Subsidiary; or (b) the transfer of assets between reincorporating or among the Issuer’s Restricted Subsidiariesreorganizing Parent in another jurisdiction; or (ii) any consolidation, amalgamation or merger, or from any of the Issuer’s Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3), (4) and (5) above shall not apply to the sale, assignment, transfer, conveyance, transfer, lease or other disposition of all assets between or substantially all of the assets of the Issuer to an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing the Issuer in another state in the United States and/or for the sole purpose of forming or collapsing a holding company structure. (c) The Surviving Person shall succeed to, and be substituted for, and may exercise every right and power of the Issuer under this Indenture. In the case of a lease, however, the Issuer shall not be released from any of the obligations or covenants under this Indenture. (d) Unless the Note Guarantee of the applicable Subsidiary Guarantor is permitted to be released in connection with such transaction as described in Section 4.16 or Section 10.06, such Subsidiary Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or amalgamate or merge with or into (whether or not it is the surviving Person) another Person, other than the Issuer or another Subsidiary Guarantor, unless: (1) immediately after giving effect to that transaction, no Default or Event of Default exists; and (2) either: (a) the Person (if other than the Issuer or a Subsidiary Guarantor) acquiring the property in any such sale or disposition or the Person (if other than the Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation or merger assumes all the obligations of that Subsidiary Guarantor, as applicable, under this Indenture among Parent and its Note Guarantee pursuant to a supplemental indenture reasonably satisfactory to the Trustee; or (b) such transfer does not violate Section 4.11Restricted Subsidiaries.

Merger, Consolidation or Sale of Assets. (a) The Issuer shall not not, directly or indirectly: (1) consolidate, amalgamate consolidate or merge with or into another Person (whether or not it the Issuer is the surviving corporation); or (2) sell, assign, lease, transfer, convey or otherwise dispose of all or substantially all of its the properties or assets, assets of the Issuer and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless: (1) either: (aA) the Issuer is the surviving corporationentity; or (bB) the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the Issuer) or to which such sale, assignment, lease, transfer, conveyance or other disposition has been made (the “Surviving Person”) is a Person an entity organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if such Surviving Person is not a corporation, a Restricted Subsidiary that is a corporation shall become a co-obligor of the Notes pursuant to a supplemental indenture reasonably satisfactory to the Trustee; (2) the Surviving Person formed by or surviving any such consolidation or merger (if other than the Issuer) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Issuer under the Notes and Notes, this Indenture and the Registration Rights Agreement pursuant to a supplemental indenture agreements reasonably satisfactory to the Trustee; provided, however, that at all times, a corporation organized and existing under the laws of the United States of America, any State thereof or the District of Columbia must be a co-issuer or the issuer of the Notes if such surviving Person is not a corporation; (3) immediately after such transaction, no Default or Event of Default exists;; and (4) the Issuer or the Person formed by or surviving any of such consolidation or merger (if other than the following is true: (a) Issuer), or to which such sale, assignment, transfer, conveyance or other disposition has been made would, on the date of 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, the Issuer, or the Surviving Person, would : (A) be permitted to incur at least $1.00 of additional Indebtedness pursuant to Section 4.10(a); (b) the Fixed Charge Coverage Ratio of the Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, would be test set forth in Section 4.09(a) or (B) have a Fixed Charge Coverage Ratio that is greater than or equal to the actual Fixed Charge Coverage Ratio of the Issuer immediately prior to such transaction; or (c) the Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer or the Surviving Person. In addition, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer immediately prior to such transaction; and (5) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating that such consolidationnot, merger directly or amalgamationindirectly, lease all or sale, assignment, lease, transfer, conveyance or other disposition and such supplemental indenture, if any, comply with this Indenture and constitutes the legal, valid and binding obligation substantially all of the Issuer enforceable against properties and assets of it and its Restricted Subsidiaries taken as a whole, in accordance with its termsone or more related transactions, to any other Person. (b) Sections 5.01(a)(1Clauses (3) through and (54) above and of Section 5.01(d)(15.01(a) shall not apply to: : (a1) any Restricted Subsidiary a merger of the Issuer merging, amalgamating or consolidating with or into an Affiliate solely for the purpose of reincorporating the Issuer in another jurisdiction; (2) any consolidation or another Restricted Subsidiary; merger, or (b) the transfer any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Issuer’s Issuer and its Restricted Subsidiaries, or from any of the Issuer’s Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3), (4) and (5) above shall not apply to the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the assets of the Issuer to an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing the Issuer in another state in the United States and/or for the sole purpose of forming or collapsing a holding company structure. (c) The Surviving Person shall succeed to, and be substituted for, and may exercise every right and power of the Issuer under this Indenture. In the case of a lease, however, the Issuer shall not be released from any of the obligations or covenants under this Indenture. (d) Unless the Note Guarantee of the applicable Subsidiary Guarantor is permitted to be released in connection with such transaction as described in Section 4.16 or Section 10.06, such Subsidiary Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or amalgamate or merge with or into (whether or not it is the surviving Person) another Person, other than the Issuer or another Subsidiary Guarantor, unless: (1) immediately after giving effect to that transaction, no Default or Event of Default exists; and (23) either: transfers of accounts receivable and related assets of the type specified in the definition of Qualified Receivables Transaction (a) the Person (if other than the Issuer or a fractional undivided interest therein) by a Receivables Subsidiary Guarantor) acquiring the property in any such sale or disposition or the Person (if other than the Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation or merger assumes all the obligations of that Subsidiary Guarantor, as applicable, under this Indenture and its Note Guarantee pursuant to a supplemental indenture reasonably satisfactory to the Trustee; or (b) such transfer does not violate Section 4.11Qualified Receivables Transaction.

Merger, Consolidation or Sale of Assets. (a) The Issuer shall not Eldorado will not, directly or indirectly: (1) consolidate, amalgamate consolidate or merge with or into another Person (whether or not it Eldorado is the surviving corporationentity); or (2) sell, assign, lease, transfer, convey or otherwise dispose of all or substantially all of its the properties or assets, assets of Eldorado and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless: (1) either: (aA) the Issuer Eldorado is the surviving corporationentity; or (bB) the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the IssuerEldorado) or to which such sale, assignment, lease, transfer, conveyance or other disposition has been made (the “Surviving PersonSuccessor”) is a Person an entity organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that and, if such Surviving Person entity is not a corporation, a Restricted Subsidiary that is a corporation shall become a co-obligor of the Notes pursuant to is a supplemental indenture reasonably satisfactory to the Trusteecorporation organized or existing under any such laws; (2) the Surviving Person Successor (if other than the Issuer) Eldorado), assumes all the obligations of the Issuer Eldorado under the Notes Notes, the Indenture and this Indenture the Security Documents pursuant to a supplemental indenture agreements reasonably satisfactory to the Trustee; (3) such transaction would not result in the loss or suspension or material impairment of any Gaming Licenses, unless a comparable Gaming License is effective prior to or simultaneously with such loss, suspension or material impairment; (4) immediately after such transaction, no Default or Event of Default exists;; and (45) any of Eldorado or the following is true: (a) Successor would, on the date of 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, the Issuer, or the Surviving Person, would period (a) be permitted to incur at least $1.00 of additional Indebtedness pursuant to Section 4.10(a); (b) the Fixed Charge Coverage Ratio of the Issuer test set forth in Section 4.09(a); or the Surviving Person, after giving pro forma effect (b) have had a Fixed Charge Coverage Ratio equal to such transaction and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, would be or greater than or equal to the actual Fixed Charge Coverage Ratio for Eldorado for such four quarter period. In addition, Eldorado will not, directly or indirectly, lease all or substantially all of the Issuer immediately prior properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to such transaction; or (c) the Indebtedness any other Person. This Section 5.01 will not apply to Consolidated Tangible Net Worth Ratio of the Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer immediately prior to such transaction; and (5) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating that such consolidation, merger or amalgamation, or sale, assignment, lease, transfer, conveyance conveyance, lease or other disposition and such supplemental indenture, if any, comply with this Indenture and constitutes the legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms. (b) Sections 5.01(a)(1) through (5) above and Section 5.01(d)(1) shall not apply to: (a) any Restricted Subsidiary of the Issuer merging, amalgamating or consolidating with or into the Issuer or another Restricted Subsidiary; or (b) the transfer of assets between or among the Issuer’s Eldorado and its Restricted Subsidiaries, or from any of the Issuer’s Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3), Clauses (4) and (5) above shall of this Section 5.01 will not apply to the sale, assignment, conveyance, transfer, lease (1) any merger or other disposition consolidation of all Eldorado with or substantially all into one of the assets of the Issuer to its Restricted Subsidiaries for any purpose or (2) with or into an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing the Issuer Eldorado in another state in jurisdiction Notwithstanding the United States and/or for the sole purpose of forming or collapsing foregoing, Eldorado may reorganize into a holding company structure. (c) The Surviving Person shall succeed to, and be substituted for, and may exercise every right and power of the Issuer under this Indenture. In the case of a lease, however, the Issuer shall not be released from any of the obligations or covenants under this Indenture. (d) Unless the Note Guarantee of the applicable Subsidiary Guarantor is permitted to be released in connection with such transaction as described in Section 4.16 or Section 10.06, such Subsidiary Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or amalgamate or merge with or into (whether or not it is the surviving Person) another Person, other than the Issuer or another Subsidiary Guarantor, unless: (1) immediately after giving effect to that transaction, no Default or Event of Default exists; and (2) either: (a) the Person (if other than the Issuer or a Subsidiary Guarantor) acquiring the property in any such sale or disposition or the Person (if other than the Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation or merger assumes all the obligations of that Subsidiary Guarantor, as applicable, under this Indenture and its Note Guarantee corporation pursuant to a supplemental indenture reasonably satisfactory to the Trustee; or (b) such transfer does not violate Section 4.11Permitted C-Corp. Reorganization.

Merger, Consolidation or Sale of Assets. (a) The Issuer shall not will not, directly or indirectly: (1) consolidate, amalgamate consolidate or merge with or into another Person (whether or not it the Issuer is the surviving corporation); ) or (2) sell, assign, transfer, lease, transfer, convey or otherwise dispose of all or substantially all of its properties or assets, taken as assets (determined on a wholeconsolidated basis for Issuer and its Subsidiaries), in one or more related transactions, transactions to another Person, unless: (1) either: either (a) the Issuer is the surviving corporationentity; or or (b) the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the Issuer) or to which such sale, assignment, transfer, lease, transfer, conveyance or other disposition has been made (the “Surviving Person”) is a Person corporation, partnership or limited liability company organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if such Surviving Person is not a corporation, a Restricted Subsidiary that is a corporation shall become a co-obligor of the Notes pursuant to a supplemental indenture reasonably satisfactory to the Trustee; (2) the Surviving 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 has been made assumes all the obligations of the Issuer under the Notes and Notes, this Indenture and the Security Documents, in each case pursuant to a supplemental indenture and other agreements reasonably satisfactory to the Trustee; (3) immediately after such transaction, no Default or Event of Default exists;; and (4) the Issuer or the Person formed by or surviving any of such consolidation or merger (if other than the following is true: (a) Issuer), or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and to any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, the Issuer, or the Surviving Person, would either (a) be permitted to incur at least $1.00 of additional Indebtedness pursuant to Section 4.10(a); (b) the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) or (b) have a pro forma Fixed Charge Coverage Ratio that is at least equal to the actual Fixed Charge Coverage Ratio for Parent as of such date; and (5) the Issuer delivers to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) complies with this Indenture, that all conditions precedent in this Indenture relating to such transaction have been satisfied and that the supplemental indenture is enforceable; provided, that, clause (4) of this Section 5.01(a) will not apply to: (i) a merger of the Issuer with an Affiliate solely for the purpose of reincorporating the Issuer in another jurisdiction; or (ii) any consolidation or merger, or any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Issuer and any of the Restricted Subsidiaries. (b) Parent will not, directly or indirectly, consolidate or merge with or into another Person (whether or not Parent 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 Parent and its Subsidiaries), in one or more related transactions to another Person, unless: (1) either (a) Parent is the surviving entity; or (b) the Person formed by or surviving any such consolidation or merger (if other than Parent) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is a corporation, partnership or limited liability company organized or existing under the laws of the United States, any state of the United States or the Surviving PersonDistrict of Columbia; (2) the Person formed by or surviving any such consolidation or merger (if other than Parent) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made assumes all the obligations of Parent under Parent's Note Guarantee, this Indenture and the Security Documents, in each case pursuant to a supplemental indenture and other agreements reasonably satisfactory to the Trustee; (3) immediately after such transaction, no Default or Event of Default exists; and (4) Parent or the Person formed by or surviving any such consolidation or merger (if other than Parent), or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and to such transaction and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, would either (a) be greater than permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) or (b) have a pro forma Fixed Charge Coverage Ratio that is at least equal to the actual Fixed Charge Coverage Ratio for Parent as of the Issuer immediately prior to such transaction; or (c) the Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer immediately prior to such transactiondate; and (5) the Issuer shall have delivered delivers to the Trustee an Officer’s Officers' Certificate and an Opinion of Counsel Counsel, each stating that such consolidation, merger or amalgamationtransfer and such supplemental indenture (if any) complies with this Indenture, that all conditions precedent in this Indenture relating to such transaction have been satisfied and that the supplemental indenture is enforceable; provided, that, clause (4) of this Section 5.01(b) will not apply to: (i) a merger of Parent with an Affiliate solely for the purpose of reincorporating Parent in another jurisdiction; or (ii) any consolidation or merger, or any sale, assignment, lease, transfer, conveyance or other disposition and such supplemental indenture, if any, comply with this Indenture and constitutes the legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms. (b) Sections 5.01(a)(1) through (5) above and Section 5.01(d)(1) shall not apply to: (a) any Restricted Subsidiary of the Issuer merging, amalgamating or consolidating with or into the Issuer or another Restricted Subsidiary; or (b) the transfer of assets between or among the Issuer’s Restricted Subsidiaries, or from any of the Issuer’s Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3), (4) and (5) above shall not apply to the sale, assignment, conveyance, transfer, lease or other disposition of all assets between or substantially all among Parent and any of the assets of the Issuer to an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing the Issuer in another state in the United States and/or for the sole purpose of forming or collapsing a holding company structureRestricted Subsidiaries. (c) The Surviving Person shall Upon consummation of the Merger, the Company will execute and deliver to the Trustee supplemental indentures of the type referred to in the clause (2) of Section 5.01(a) pursuant to which the Company, as the surviving entity of the Merger, will assume all the obligations of Merger Sub under this Indenture and will succeed to, and be substituted substitute for, and may exercise every right and power of the Issuer of, Merger Sub under this Indenture. In Notwithstanding anything in this Article 5 to the case of a lease, howevercontrary, the Issuer merger of Merger Sub with and into the Company on the Merger Date as described in the Merger Agreement shall not be released from any of the obligations or covenants permitted under this Indenture. (d) Unless the Note Guarantee of the applicable Subsidiary Guarantor is permitted to be released in connection with such transaction as described in Section 4.16 or Section 10.06, such Subsidiary Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or amalgamate or merge with or into (whether or not it is the surviving Person) another Person, other than the Issuer or another Subsidiary Guarantor, unless: (1) immediately after giving effect to that transaction, no Default or Event of Default exists; and (2) either: (a) the Person (if other than the Issuer or a Subsidiary Guarantor) acquiring the property in any such sale or disposition or the Person (if other than the Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation or merger assumes all the obligations of that Subsidiary Guarantor, as applicable, under this Indenture and its Note Guarantee pursuant to a supplemental indenture reasonably satisfactory to the Trustee; or (b) such transfer does not violate Section 4.11.

Merger, Consolidation or Sale of Assets. (a) The Issuer Suburban Propane shall not not, directly or indirectly: (1) consolidate, amalgamate consolidate or merge with or into another Person (whether or not it Suburban Propane is the surviving corporationentity); or (2) sell, assign, lease, transfer, convey or otherwise dispose of all or substantially all of its the properties or assets, assets of Suburban Propane and its Restricted Subsidiaries taken as a whole, in one or more related transactionstransactions to, to another Person, ; unless: (1i) either: : (aA) the Issuer Suburban Propane is the surviving corporationentity; or or (bB) the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the IssuerSuburban Propane) or to which such sale, assignment, lease, transfer, conveyance or other disposition has been made (the “Surviving Person”) is a Person corporation, partnership or limited liability company organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if such Surviving Person is not a corporation, a Restricted Subsidiary that is a corporation shall become a co-obligor of the Notes pursuant to a supplemental indenture reasonably satisfactory to the Trustee; (2ii) the Surviving Person formed by or surviving any such consolidation or merger (if other than Suburban Propane) or the Issuer) Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Issuer Suburban Propane under the Notes and this Supplemental Indenture pursuant to a supplemental indenture reasonably satisfactory in form to the Trustee; (3iii) immediately after such transaction, no Default or Event of Default exists;; and (4iv) Suburban Propane or the Person formed by or surviving any of the following is true: such consolidation or merger (a) if other than Suburban Propane), or to which such sale, assignment, transfer, conveyance or other disposition has been made will, on the date of 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, the Issuer, or the Surviving Person, would (x) be permitted to incur at least $1.00 of additional Indebtedness pursuant to Section 4.10(a); (b) the Consolidated Fixed Charge Coverage Ratio of test set forth in Section 10.10(a) hereof or (y) the Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, would be greater than or equal to the actual Consolidated Fixed Charge Coverage Ratio of would not be less than the Issuer Consolidated Fixed Charge Coverage Ratio immediately prior to such transaction; or (c) the Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer transaction or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer immediately prior to such transaction; and (5) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating that such consolidation, merger or amalgamation, or sale, assignment, lease, transfer, conveyance or other disposition and such supplemental indenture, if any, comply with this Indenture and constitutes the legal, valid and binding obligation of the Issuer enforceable against it in accordance with its termstransactions. (b) Sections 5.01(a)(1) through (5) above and Section 5.01(d)(1) shall not apply to: (a) any Restricted Subsidiary of the Issuer merging, amalgamating or consolidating with or into the Issuer or another Restricted Subsidiary; or (b) the transfer of assets between or among the Issuer’s Restricted Subsidiaries, or from any of the Issuer’s Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3), (4) and (5) above shall not apply to the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the assets of the Issuer to an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing the Issuer in another state in the United States and/or for the sole purpose of forming or collapsing a holding company structure. (c) The Surviving Person shall succeed to, and be substituted for, and may exercise every right and power of the Issuer under this Indenture. In the case of a lease, however, the Issuer shall not be released from any of the obligations or covenants under this Indenture. (d) Unless the Note Guarantee of the applicable Subsidiary Guarantor is permitted to be released in connection with such transaction as described in Section 4.16 or Section 10.06, such Subsidiary Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or amalgamate or merge with or into (whether or not it is the surviving Person) another Person, other than the Issuer or another Subsidiary Guarantor, unless: (1) immediately after giving effect to that transaction, no Default or Event of Default exists; and (2) either: (a) the Person (if other than the Issuer or a Subsidiary Guarantor) acquiring the property in any such sale or disposition or the Person (if other than the Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation or merger assumes all the obligations of that Subsidiary Guarantor, as applicable, under this Indenture and its Note Guarantee pursuant to a supplemental indenture reasonably satisfactory to the Trustee; or (b) such transfer does not violate Section 4.11.

Merger, Consolidation or Sale of Assets. (a) The Issuer shall not may not, directly or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not it the Issuer is the surviving corporationPerson); or (2) sell, assign, lease, transfer, convey or otherwise dispose of all or substantially all of its the properties or assets, assets of the Issuer and its Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless: (1) either: : (a) the Issuer is the surviving corporationPerson and the laws of all relevant jurisdictions recognize that the Issuer as surviving Person automatically and without any action on the part of any Person is bound by all the obligations of the Issuer under the Notes, this Indenture, the Intercreditor Agreement, any Additional Intercreditor Agreements and the Security Documents (as applicable); or or (b) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issuer) or to which such sale, assignment, lease, transfer, conveyance or other disposition has been made (the “Surviving Person”x) is a Person corporation, limited liability company, trust or limited partnership organized or existing under the laws of the United Statesan Eligible Jurisdiction, any state of the United States or the District of Columbia; provided that if such Surviving Person is not a corporation, a Restricted Subsidiary that is a corporation shall become a co-obligor of the Notes pursuant to a supplemental indenture reasonably satisfactory to the Trustee; and (2y) the Surviving Person (if other than the Issuer) expressly assumes all the obligations of the Issuer under the Notes Notes, this Indenture, the Intercreditor Agreement, any Additional Intercreditor Agreements and this Indenture pursuant to a supplemental indenture reasonably satisfactory to the TrusteeSecurity Documents (as applicable); (32) immediately after giving effect to such transaction, no Default or Event of Default exists;; and (43) any either (i) the ratio of the following is true: principal amount of the Total Debt to the Adjusted EBITDA of the Issuer or the Person formed by or surviving any such consolidation, amalgamation or merger (a) if other than the Issuer), or to which such sale, assignment, transfer, conveyance or other disposition has been made, will, on the date of such transaction after giving pro forma effect thereto and to any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, the Issuer, or the Surviving Person, would be permitted to incur at least $1.00 of additional Indebtedness pursuant to Section 4.10(a); (b) the Fixed Charge Coverage Ratio of the Issuer or the Surviving Person, after giving pro forma effect no greater than such ratio was prior to such transaction and any related financing transactions as if or (ii) solely in the same had occurred case of a transaction that is a consolidation, amalgamation or merger, at the beginning time of the applicable four-quarter period, would be greater than or equal to the actual Fixed Charge Coverage Ratio of the Issuer immediately prior to such transaction; or (c) the Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer or the Surviving Person, after giving pro forma effect entry into definitive documentation with respect to such transaction and any related financing transactions as if (A) the same had occurred at the end ratio of the last full fiscal quarter, would be less than or equal principal amount of the Total Debt of such Person to the actual Indebtedness Fair Market Value of such Person does not exceed 80% or (B) such Person (i) has common or preferred equity publicly listed on an internationally recognized stock exchange and (ii) with respect to Consolidated Tangible Net Worth Ratio such publicly listed equity, has a market capitalization greater than $500.0 million. In addition, the Issuer may not, directly or indirectly, lease all or substantially all of its properties or assets, in one or more related transactions, to any other Person; provided that the foregoing shall not prohibit the chartering out of Vessels in the ordinary course of a Permitted Business. For purposes of the Issuer immediately prior to such transaction; and foregoing, the transfer (5) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating that such consolidation, merger or amalgamation, or saleby lease, assignment, leasesale or otherwise, transfer, conveyance in a single transaction or other disposition and such supplemental indenture, if any, comply with this Indenture and constitutes the legal, valid and binding obligation series of the Issuer enforceable against it in accordance with its terms. (btransactions) Sections 5.01(a)(1) through (5) above and Section 5.01(d)(1) shall not apply to: (a) any Restricted Subsidiary of the Issuer merging, amalgamating or consolidating with or into the Issuer or another Restricted Subsidiary; or (b) the transfer of assets between or among the Issuer’s Restricted Subsidiaries, or from any of the Issuer’s Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3), (4) and (5) above shall not apply to the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the properties or assets of one or more Subsidiaries, the Equity Interests of which constitute all or substantially all of the properties and assets of the Issuer to an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing the Issuer in another state in the United States and/or for the sole purpose of forming or collapsing a holding company structure. (c) The Surviving Person shall succeed toIssuer, and will be substituted for, and may exercise every right and power of the Issuer under this Indenture. In the case of a lease, however, the Issuer shall not be released from any of the obligations or covenants under this Indenture. (d) Unless the Note Guarantee of the applicable Subsidiary Guarantor is permitted deemed to be released in connection with such transaction as described in Section 4.16 or Section 10.06, such Subsidiary Guarantor may not sell or otherwise dispose the transfer of all or substantially all of its the properties and assets to, or consolidate with or amalgamate or merge with or into (whether or not it is of the surviving Person) another Person, other than the Issuer or another Subsidiary Guarantor, unless: (1) immediately after giving effect to that transaction, no Default or Event of Default exists; and (2) either: (a) the Person (if other than the Issuer or a Subsidiary Guarantor) acquiring the property in any such sale or disposition or the Person (if other than the Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation or merger assumes all the obligations of that Subsidiary Guarantor, as applicable, under this Indenture and its Note Guarantee pursuant to a supplemental indenture reasonably satisfactory to the Trustee; or (b) such transfer does not violate Section 4.11Issuer.

Merger, Consolidation or Sale of Assets. (a) The Issuer shall not directly or indirectlyNeither of the Issuers may: (1) consolidate, amalgamate consolidate or merge with or into another Person (whether or not it such Issuer is the surviving corporationentity); or (2) directly or indirectly sell, assign, transfer, lease, transfer, convey or otherwise dispose of all or substantially all of its the properties or assetsassets of the Issuers and the Restricted Subsidiaries, taken as a whole, in one or more related transactions, to another Person, unless: (1) either: (aA) the such Issuer is the surviving corporationentity; or (bB) the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the such Issuer) or to which such sale, assignment, lease, transfer, conveyance or other disposition has been made (the “Surviving Person”) is a Person organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided provided, however, that if Finance Corp. may not consolidate or merge with or into any Person other than a corporation satisfying such Surviving Person requirement so long as Xxxxx Energy Partners is not a corporation, a Restricted Subsidiary that is a corporation shall become a co-obligor of the Notes pursuant to a supplemental indenture reasonably satisfactory to the Trustee; (2) the Surviving Person formed by or surviving any such consolidation or merger (if other than the such Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made assumes all the obligations of the such Issuer under the Notes and this Indenture pursuant to a supplemental indenture agreements reasonably satisfactory to the Trustee; (3) immediately after such transaction, no Default or Event of Default exists;; and (4) in the case of a transaction involving Xxxxx Energy Partners and not Finance Corp., Xxxxx Energy Partners or the Person formed by or surviving any of the following is truesuch consolidation or merger (if other than Xxxxx Energy Partners), or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made, will: (aA) on the date of 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 periodReference Period, the Issuer, or the Surviving Person, would be permitted to incur at least $1.00 of additional Indebtedness pursuant to Section 4.10(a); (b) the Fixed Charge Coverage Ratio test set forth in Section 4.09(a); or (B) have a Fixed Charge Coverage Ratio, on the date of the Issuer or the Surviving Person, such transaction and after giving pro forma effect to such transaction thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter periodReference Period, would be greater not less than or equal to the actual Fixed Charge Coverage Ratio of the Issuer immediately prior to such transaction; or (c) the Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer Xxxxx Energy Partners immediately prior to such transaction; and (5) the such Issuer shall have has delivered to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel Counsel, each stating that such consolidation, merger or amalgamation, or sale, assignment, lease, transfer, conveyance or other disposition and such supplemental indenture, indenture (if any, ) comply with this Indenture and constitutes the legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms. (b) Sections 5.01(a)(1) through (5) above and all conditions precedent therein relating to such transaction have been satisfied; provided that this Section 5.01(d)(1) shall not apply to: (a) any Restricted Subsidiary of the Issuer merging, amalgamating or consolidating with or into the Issuer or another Restricted Subsidiary; or (b) the transfer of assets between or among the Issuer’s Restricted Subsidiaries, or from any of the Issuer’s Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3), (4) and (5) above shall 5.01 will not apply to the any sale, assignment, transfer, conveyance, transfer, lease or other disposition of all assets between or substantially all among Xxxxx Energy Partners and its Restricted Subsidiaries, provided further that Sections 5.01(a)(3) and (4) will not apply to any merger or consolidation of the assets Xxxxx Energy Partners (A) with or into one of the Issuer to its Restricted Subsidiaries for any purpose or (B) with or into an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing the Issuer Xxxxx Energy Partners in another state in the United States and/or for the sole purpose of forming or collapsing a holding company structurejurisdiction. (cb) The Surviving Person shall succeed toNotwithstanding Section 5.01(a), and Xxxxx Energy Partners will be substituted for, and may exercise every right and power of the Issuer under this Indenture. In the case of a lease, however, the Issuer shall not be released from any of the obligations or covenants under this Indenture. (d) Unless the Note Guarantee of the applicable Subsidiary Guarantor is permitted to be released in connection with such transaction reorganize as described in Section 4.16 or Section 10.06, such Subsidiary Guarantor may not sell or otherwise dispose any other form of all or substantially all of its assets to, or consolidate with or amalgamate or merge with or into (whether or not it is the surviving Person) another Person, other than the Issuer or another Subsidiary Guarantor, unlessentity; provided that: (1) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of Xxxxx Energy Partners into a form of entity other than a limited partnership formed under Delaware law; (2) the entity so formed by or resulting from such reorganization is an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia; (3) the entity so formed by or resulting from such reorganization assumes all the Obligations of Xxxxx Energy Partners under the Notes and this Indenture pursuant to agreements reasonably satisfactory to the Trustee; (4) immediately after giving effect to that transaction, such reorganization no Default or Event of Default exists; and (25) either: such reorganization is not adverse to the Holders of the Notes (for purposes of this clause (5) it is stipulated that such reorganization shall not be considered adverse to the Holders of the Notes solely because the successor or survivor of such reorganization (a) the Person (if other than the Issuer is subject to federal or a Subsidiary Guarantor) acquiring the property in any such sale state income taxation as an entity or disposition or the Person (if other than the Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation or merger assumes all the obligations of that Subsidiary Guarantor, as applicable, under this Indenture and its Note Guarantee pursuant to a supplemental indenture reasonably satisfactory to the Trustee; or (b) such transfer does not violate is considered to be an “includible corporation” of an affiliated group of corporations within the meaning of Section 4.111504(b)(i) of the Code or any similar state or local law).

Merger, Consolidation or Sale of Assets. (a) The Issuer shall not Neither of the Issuers may, directly or indirectly: (1) consolidate, amalgamate consolidate or merge with or into another Person (whether or not it such Issuer is the surviving corporationentity); or (2) sell, assign, transfer, lease, transfer, convey or otherwise dispose of all or substantially all of its the properties or assetsassets of Sunoco LP and its Subsidiaries, taken as a whole, in one or more related transactions, to another Person, unless: (1) either: (aA) the such Issuer is the surviving corporationentity; or (bB) the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the such Issuer) or to which such sale, assignment, transfer, lease, transfer, conveyance or other disposition has been made (the “Surviving Person”) is a Person organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided provided, however, that if Finance Corp. may not consolidate or merge with or into any Person other than a corporation satisfying such Surviving Person requirement so long as Sunoco LP is not a corporation, a Restricted Subsidiary that is a corporation shall become a co-obligor of the Notes pursuant to a supplemental indenture reasonably satisfactory to the Trustee; (2) the Surviving Person formed by or surviving any such consolidation or merger (if other than the such Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made assumes all the obligations of the such Issuer under the Notes and this Indenture pursuant to a supplemental indenture reasonably satisfactory to the Trusteehereto or other appropriate agreement; (3) immediately after such transaction, no Default or Event of Default exists; (4) in the case of a transaction involving Sunoco LP and not Finance Corp., Sunoco LP or the Person formed by or surviving any of the following is truesuch consolidation or merger (if other than Sunoco LP), or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made, will either: (aA) be, on the date of 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, the Issuer, or the Surviving Person, would be permitted to incur at least $1.00 of additional Indebtedness pursuant to Section 4.10(a); (b) the Fixed Charge Coverage Ratio test set forth in Section 4.09(a); or (B) have a Fixed Charge Coverage Ratio, on the date of the Issuer or the Surviving Person, such transaction and after giving pro forma effect to such transaction thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, would be greater not less than or equal to the actual Fixed Charge Coverage Ratio of the Issuer immediately prior to such transaction; or (c) the Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer Sunoco LP immediately prior to such transaction; and (5) the such Issuer shall have has delivered to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel Counsel, each stating that such consolidation, merger or amalgamation, or sale, assignment, lease, transfer, conveyance or other disposition and such supplemental indenture, indenture or other appropriate agreement (if any, ) comply with this Indenture and constitutes all conditions precedent therein relating to such transaction have been satisfied; provided that clauses (3) and (4) shall not apply to any sale of assets of a Restricted Subsidiary to Sunoco LP or another Restricted Subsidiary or the legal, valid and binding obligation merger or consolidation of the Issuer enforceable against it in accordance with its termsa Restricted Subsidiary into any Restricted Subsidiary or Sunoco LP. (b) Sections 5.01(a)(1) through (5) above and Section 5.01(d)(1) Notwithstanding anything to the contrary in this Indenture or the Notes, any Qualified Retail Asset Sale shall not apply to: (a) any Restricted Subsidiary of the Issuer merging, amalgamating or consolidating with or into the Issuer or another Restricted Subsidiary; or (b) the transfer of assets between or among the Issuer’s Restricted Subsidiaries, or from any of the Issuer’s Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3), (4) and (5) above shall not apply to the constitute a sale, assignment, conveyance, transfer, lease lease, conveyance or other disposition of all or substantially all of the properties or assets of the Issuer to an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing the Issuer in another state in the United States and/or for the sole purpose of forming or collapsing Sunoco LP and its Subsidiaries, taken as a holding company structurewhole. (c) The Surviving Person shall succeed toNotwithstanding Section 5.01(a), and be substituted forSunoco LP is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that: (1) the reorganization involves the conversion (by merger, and may exercise every right and power sale, legal conversion, contribution or exchange of assets or otherwise) of Sunoco LP into a form of entity other than a limited partnership formed under Delaware law; (2) the entity so formed by or resulting from such reorganization is an entity organized or existing under the laws of the Issuer United States, any state thereof or the District of Columbia; (3) the entity so formed by or resulting from such reorganization assumes all the obligations of Sunoco LP under the Notes and this Indenture. In Indenture pursuant to a supplemental indenture hereto or other appropriate agreement; (4) immediately after such reorganization no Default or Event of Default exists; (5) such reorganization is not materially adverse to the case Holders of a lease, however, the Issuer Notes (for purposes of this clause (5) it is stipulated that such reorganization shall not be released from any considered materially adverse to the Holders of Notes solely because the successor or survivor of such reorganization (A) is subject to federal or state income taxation as an entity or (B) is considered to be an “includible corporation” of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the obligations Internal Revenue Code of 1986, as amended, or covenants under any similar state or local law); and (6) Sunoco LP has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such reorganization and such supplemental indenture or other appropriate agreement (if any) comply with this IndentureIndenture and all conditions precedent therein relating to such transaction have been satisfied. (d) Unless the Note Guarantee of the applicable Subsidiary Guarantor is permitted to be released in connection with such transaction as described in Section 4.16 or Section 10.06, such Subsidiary A Guarantor may not sell or otherwise dispose of all or substantially all of its properties or assets to, or consolidate with or amalgamate or merge with or into (whether or not it such Guarantor is the surviving Person) ), another Person, other than the Issuer Sunoco LP or another Subsidiary Guarantor, unless: (1) immediately after giving effect to that transaction, no Default or Event of Default exists; and (2) either: (a) the Person (if other than the Issuer or a Subsidiary Guarantor) acquiring the property in any such sale or disposition or the Person (if other than the Issuer or a Subsidiary Guarantor) formed except as permitted by or surviving any such consolidation or amalgamation or merger assumes all the obligations of that Subsidiary Guarantor, as applicable, under this Indenture Sections 10.04 and its Note Guarantee pursuant to a supplemental indenture reasonably satisfactory to the Trustee; or (b) such transfer does not violate Section 4.1110.05 hereof.

Merger, Consolidation or Sale of Assets. (a) The Issuer shall not not, directly or indirectly: (1) consolidate, amalgamate consolidate or merge with or into another Person (whether or not it the Issuer is the surviving corporation); or (2) , and the Issuer will not sell, assign, lease, transfer, convey or otherwise dispose of all or substantially all of its the properties or assets, assets of the Issuer and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another PersonPerson (including by way of consolidation or merger), unless: (1) either: : (aA) the Issuer is the surviving corporation; or corporation or (bB) the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the Issuer) or to which such sale, assignment, lease, transfer, conveyance or other disposition has shall have been made (the “Surviving Person”) is a Person corporation, partnership or limited liability company organized or existing under the laws of the United States, any state of the United States thereof, any territory thereof or the District of ColumbiaColumbia (such Person, as the case may be, being herein called the “Successor Company”); provided that if that, in the case such Surviving Person is not a corporationlimited liability company or a partnership, such Person will form a Restricted Wholly Owned Subsidiary that is a corporation shall and cause such Subsidiary to become a co-obligor issuer of the Notes pursuant to a supplemental indenture reasonably satisfactory to the TrusteeNotes; (2) the Surviving Person Successor Company (if other than the Issuer) expressly assumes all the obligations of the Issuer Issuer, as the case may be, under the Notes Notes, this Indenture, the Security Documents and this Indenture pursuant to a supplemental indenture reasonably satisfactory to the TrusteeRegistration Rights Agreement; (3) immediately after such transactiontransaction and any related financing transactions, no Default or Event of Default exists;; and (4) any of the following is true: (a) on the date of such transaction immediately after giving pro forma effect thereto and any related financing transactions to such transaction as if the same such transaction had occurred at the beginning of the applicable four-quarter period, (A) the Issuer, or the Surviving Person, Successor Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.10(a); ) or (bB) the Fixed Charge Coverage Ratio of for the Issuer or Successor Company and the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, Restricted Subsidiaries would be greater than or equal to the actual Fixed Charge Coverage Ratio of the Issuer such ratio immediately prior to such transaction; or. (b) Notwithstanding clauses (3) and (4) of Section 5.01(a), the Issuer may merge or consolidate with a Restricted Subsidiary incorporated solely for the purposes of organizing the Issuer in another jurisdiction. (c) the Indebtedness to Consolidated Tangible Net Worth Ratio of Except as otherwise provided in Section 5.01(d), neither the Issuer nor any Restricted Subsidiary shall, directly or indirectly, lease all or substantially all of its properties or assets, in one or more related transactions, to any other Person. (d) This Section 5.01 will not apply to a sale, assignment, transfer, conveyance or other disposition (including any lease) of assets between or among the Surviving Person, after giving pro forma effect to such transaction Issuer and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer immediately prior to such transaction; andits Restricted Subsidiaries that are Guarantors. (5e) In connection with any such consolidation, merger, sale, assignment, transfer, conveyance or other disposition, the Issuer shall have delivered deliver, or cause to be delivered, to the Trustee Trustee, an Officer’s Officers’ Certificate and an Opinion of Counsel Counsel, each stating that such consolidation, merger or amalgamationmerger, or sale, assignment, lease, transfer, conveyance or other disposition and such the supplemental indenture, if any, indenture in respect thereto comply with this Indenture and constitutes the legal, valid and binding obligation of the Issuer enforceable against it in accordance with its termsthat all conditions precedent therein provided for relating to such transactions have been complied with. (bf) Sections 5.01(a)(1) through (5) above and Section 5.01(d)(1) shall not apply to: (a) Upon any Restricted Subsidiary of the Issuer mergingsuch consolidation, amalgamating or consolidating with or into the Issuer or another Restricted Subsidiary; or (b) the transfer of assets between or among the Issuer’s Restricted Subsidiariesmerger, or from any of the Issuer’s Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3), (4) and (5) above shall not apply to the sale, assignment, conveyance, transfer, lease conveyance or other disposition of all disposition, the successor Person formed by such consolidation or substantially all of the assets of into which the Issuer is merged or the Successor Company to an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing the Issuer in another state in the United States and/or for the sole purpose of forming or collapsing a holding company structure. (c) The Surviving Person which such transfer is made shall succeed to, and be substituted for, and may exercise every right and power of of, the Issuer under this Indenture with the same effect as if such successor Person had been named as the Issuer in this Indenture. In , and when a successor Person assumes all the obligations of its predecessor under this Indenture or the Notes, the predecessor shall be released from those obligations; provided, however, that in the case of a transfer by lease, however, the Issuer predecessor shall not be released from any the payment of principal of, premium, if any, and interest on the obligations or covenants under this IndentureNotes. (d) Unless the Note Guarantee of the applicable Subsidiary Guarantor is permitted to be released in connection with such transaction as described in Section 4.16 or Section 10.06, such Subsidiary Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or amalgamate or merge with or into (whether or not it is the surviving Person) another Person, other than the Issuer or another Subsidiary Guarantor, unless: (1) immediately after giving effect to that transaction, no Default or Event of Default exists; and (2) either: (a) the Person (if other than the Issuer or a Subsidiary Guarantor) acquiring the property in any such sale or disposition or the Person (if other than the Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation or merger assumes all the obligations of that Subsidiary Guarantor, as applicable, under this Indenture and its Note Guarantee pursuant to a supplemental indenture reasonably satisfactory to the Trustee; or (b) such transfer does not violate Section 4.11.

Merger, Consolidation or Sale of Assets. (a) a. The Issuer shall Guarantor may not directly or indirectly: (1) consolidate, amalgamate consolidate with or merge with or into another Person (whether or not it the Guarantor is the surviving Person) another corporation, Person or entity, whether or not affiliated with the Guarantor, unless (i) subject to the provisions of Section 9(b); or (2) sell, assign, lease, transfer, convey or otherwise dispose of all or substantially all of its properties or assets, taken as a whole, in one or more related transactions, to another Person, unless: (1) either: (a) the Issuer is the surviving corporation; or (b) the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the Issuer) or to which such sale, assignment, lease, transfer, conveyance or other disposition has been made (the “Surviving Person”) is a Person organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if such Surviving Person is not a corporation, a Restricted Subsidiary that is a corporation shall become a co-obligor of the Notes pursuant to a supplemental indenture reasonably satisfactory to the Trustee; (2) the Surviving Person (if other than the IssuerGuarantor) assumes all the obligations of the Issuer under the Notes and this Indenture Guarantor, pursuant to a supplemental indenture Guarantee in form and substance reasonably satisfactory to the Trustee; , under the Guarantee; (3ii) immediately after giving effect to such transaction, no Default or Event of Default exists; ; (4iii) the Guarantor, or any Person formed by or surviving any such consolidation or merger, would have Consolidated Net Worth (immediately after giving effect to such transaction) equal to or greater than the Consolidated Net Worth of the following is true: Guarantor immediately preceding the transaction; and (aiv) on the date of 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, the Issuer, or the Surviving Person, Company would be permitted by virtue of the Company's pro forma Fixed Charge Coverage Ratio, immediately after giving effect to such transaction, to incur at least $1.00 of additional Indebtedness pursuant to Section 4.10(a); (b) the Fixed Charge Coverage Ratio test set forth in Section 4.09 of the Issuer or Indenture; provided, however, that the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, would be greater than or equal to the actual Fixed Charge Coverage Ratio of the Issuer immediately prior to such transaction; or (c) the Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer immediately prior to such transaction; and (5) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating that such consolidation, merger or amalgamation, or sale, assignment, lease, transfer, conveyance or other disposition and such supplemental indenture, if any, comply with this Indenture and constitutes the legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms. (b) Sections 5.01(a)(1) through (5) above and Section 5.01(d)(1) shall not apply to: (a) any Restricted Subsidiary of the Issuer merging, amalgamating or consolidating with or into the Issuer or another Restricted Subsidiary; or (b) the transfer of assets between or among the Issuer’s Restricted Subsidiaries, or from any of the Issuer’s Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3), (4) and (5) above shall foregoing will not apply to the sale, assignment, conveyance, transfer, lease consolidation or merger of the Guarantor with and into either Issuer or another Guarantor. b. In the event of a sale or other disposition of all or substantially all of the assets of the Issuer to an Affiliate incorporated Guarantor, by way of merger, consolidation or organized solely for otherwise, or a sale or other disposition of all of the purpose capital stock of reincorporating or reorganizing the Issuer in another state Guarantor, then the Guarantor (in the United States and/or for the sole purpose event of forming a sale or collapsing other disposition, by way of such a holding company structure. (c) The Surviving Person shall succeed tomerger, and be substituted forconsolidation or otherwise, and may exercise every right and power of all of the Issuer capital stock of the Guarantor) or the corporation acquiring the property (in the event of a sale or other disposition of all of the assets of the Guarantor) will be released and relieved of any obligations under this Guarantee; provided that the Net Proceeds of such sale or other disposition are applied in accordance with Section 4.10 of the Indenture. In addition, in the case of a leaseevent the Management Committee designates the Guarantor to be an Unrestricted Subsidiary, however, then the Issuer Guarantor shall not be released from and relieved of any obligations under this Guarantee; provided that such designation is conducted in accordance with Section 4.07 of the obligations or covenants under this Indenture. (d) Unless the Note Guarantee of the applicable Subsidiary Guarantor is permitted to be released in connection with such transaction as described in Section 4.16 or Section 10.06, such Subsidiary Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or amalgamate or merge with or into (whether or not it is the surviving Person) another Person, other than the Issuer or another Subsidiary Guarantor, unless: (1) immediately after giving effect to that transaction, no Default or Event of Default exists; and (2) either: (a) the Person (if other than the Issuer or a Subsidiary Guarantor) acquiring the property in any such sale or disposition or the Person (if other than the Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation or merger assumes all the obligations of that Subsidiary Guarantor, as applicable, under this Indenture and its Note Guarantee pursuant to a supplemental indenture reasonably satisfactory to the Trustee; or (b) such transfer does not violate Section 4.11.

Merger, Consolidation or Sale of Assets. (a) The Issuer shall not Borrower may not, directly or indirectly: (1) consolidate, amalgamate consolidate or merge with or into another Person (whether or not it the Borrower is the surviving corporation); , or (2) sell, assign, lease, transfer, convey or otherwise dispose of all or substantially all of its the properties or assets, assets of the Borrower and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, ; unless: (1i) either: (aA) the Issuer Borrower is the surviving corporation; or (bB) the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the IssuerBorrower) or to which such sale, assignment, lease, transfer, conveyance or other disposition has been made (the “Surviving Person”) is a Person corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if such Surviving Person is not a corporation, a Restricted Subsidiary that is a corporation shall become a co-obligor of the Notes pursuant to a supplemental indenture reasonably satisfactory to the Trustee; (2ii) the Surviving Person formed by or surviving any such consolidation or merger (if other than the IssuerBorrower) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Issuer Borrower under this Agreement and the Notes and this Indenture other Loan Documents pursuant to a supplemental indenture agreements reasonably satisfactory to the TrusteeAdministrative Agent or each of the Lenders; (3iii) immediately after such transaction, no Default or Event of Default exists;; and (4iv) the Borrower or the Person formed by or surviving any of such consolidation or merger (if other than the following is true: (a) Borrower), or to which such sale, assignment, transfer, conveyance or other disposition has been made will, on the date of 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, the Issuer, or the Surviving Person, would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Debt to Cash Flow Ratio test set forth in Section 4.10(a); (b6.7(a) the Fixed Charge Coverage Ratio of the Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, would be greater than or equal to the actual Fixed Charge Coverage Ratio of the Issuer immediately prior to such transaction; or (c) the Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer immediately prior to such transaction; and (5) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating that such consolidation, merger or amalgamation, or sale, assignment, lease, transfer, conveyance or other disposition and such supplemental indenture, if any, comply with this Indenture and constitutes the legal, valid and binding obligation of the Issuer enforceable against it in accordance with its termshereof. (b) Sections 5.01(a)(1In addition, the Borrower may not, directly or indirectly, lease all or substantially all of its properties or assets, in one or more related transactions, to any other Person. (c) through (5) above and This Section 5.01(d)(1) shall 7.1 will not apply to: (ai) any Restricted Subsidiary a merger of the Issuer merging, amalgamating or consolidating Borrower with or into an Affiliate solely for the Issuer or purpose of reincorporating the Borrower in another Restricted Subsidiaryjurisdiction; or (bii) the transfer any merger or consolidation, or any sale, transfer, assignment, conveyance, lease or other disposition of assets between or among the Issuer’s Restricted Subsidiaries, or from any of the Issuer’s Borrower and its Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3), (4) and (5) above shall not apply to the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the assets of the Issuer to an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing the Issuer in another state in the United States and/or for the sole purpose of forming or collapsing a holding company structurethat are Guarantors. (c) The Surviving Person shall succeed to, and be substituted for, and may exercise every right and power of the Issuer under this Indenture. In the case of a lease, however, the Issuer shall not be released from any of the obligations or covenants under this Indenture. (d) Unless the Note Guarantee of the applicable Subsidiary Guarantor is permitted to be released in connection with such transaction as described in Section 4.16 or Section 10.06, such Subsidiary Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or amalgamate or merge with or into (whether or not it is the surviving Person) another Person, other than the Issuer or another Subsidiary Guarantor, unless: (1) immediately after giving effect to that transaction, no Default or Event of Default exists; and (2) either: (a) the Person (if other than the Issuer or a Subsidiary Guarantor) acquiring the property in any such sale or disposition or the Person (if other than the Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation or merger assumes all the obligations of that Subsidiary Guarantor, as applicable, under this Indenture and its Note Guarantee pursuant to a supplemental indenture reasonably satisfactory to the Trustee; or (b) such transfer does not violate Section 4.11.

Merger, Consolidation or Sale of Assets. (a) The Issuer shall not directly or indirectlyNeither of the Issuers may: (1) consolidate, amalgamate consolidate or merge with or into another Person (whether or not it such Issuer is the surviving corporationentity); or (2) directly or indirectly, sell, assign, transfer, lease, transfer, convey or otherwise dispose of all or substantially all of its the properties or assetsassets of the Issuers and the Restricted Subsidiaries, taken as a whole, in one or more related transactions, to another Person, unless: (1) either: (aA) the such Issuer is the surviving corporationentity; or (bB) the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the such Issuer) or to which such sale, assignment, lease, transfer, conveyance or other disposition has been made (the “Surviving Person”) is a Person organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided provided, however, that if Finance Corp. may not consolidate or merge with or into any Person other than a corporation satisfying such Surviving Person requirement so long as Antero Midstream Partners is not a corporation, a Restricted Subsidiary that is a corporation shall become a co-obligor of the Notes pursuant to a supplemental indenture reasonably satisfactory to the Trustee; (2) the Surviving Person formed by or surviving any such consolidation or merger (if other than the such Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made assumes all the obligations of the such Issuer under the Notes and Notes, this Indenture and any Registration Rights Agreement then in effect pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee; (3) immediately after such transaction, no Default or Event of Default exists;; and (4) in the case of a transaction involving Antero Midstream Partners and not Finance Corp., Antero Midstream Partners or the Person formed by or surviving any of the following is true: such consolidation or merger (a) if other than Antero Midstream Partners), or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made, will on the date of 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, the Issuer, or the Surviving Person, would Reference Period: (A) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.10(a4.09(a);; or (bB) have a Fixed Charge Coverage Ratio not less than the Fixed Charge Coverage Ratio of the Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, would be greater than or equal to the actual Fixed Charge Coverage Ratio of the Issuer immediately prior to such transaction; or (c) the Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer Antero Midstream Partners immediately prior to such transaction; and (5) the such Issuer shall have has delivered to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel Counsel, each stating that such consolidation, merger or amalgamation, or sale, assignment, lease, transfer, conveyance or other disposition and such supplemental indenture, indenture (if any, ) comply with this Indenture and constitutes the legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms. (b) Sections 5.01(a)(1) through (5) above and all conditions precedent therein relating to such transaction have been satisfied. provided that this Section 5.01(d)(1) shall not apply to: (a) any Restricted Subsidiary of the Issuer merging, amalgamating or consolidating with or into the Issuer or another Restricted Subsidiary; or (b) the transfer of assets between or among the Issuer’s Restricted Subsidiaries, or from any of the Issuer’s Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3), (4) and (5) above shall 5.01 will not apply to the any sale, assignment, transfer, conveyance, transfer, lease or other disposition of all assets between or substantially all among Antero Midstream Partners and its Restricted Subsidiaries, provided further that Sections 5.01(a)(3) and (4) will not apply to any merger or consolidation of the assets Antero Midstream Partners (A) with or into one of the Issuer to its Restricted Subsidiaries for any purpose or (B) with or into an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing the Issuer Antero Midstream Partners in another state in the United States and/or for the sole purpose of forming or collapsing a holding company structurejurisdiction. (cb) The Surviving Person shall succeed toNotwithstanding Section 5.01(a), and Antero Midstream Partners will be substituted for, and may exercise every right and power permitted to reorganize as any other form of entity in accordance with the Issuer under procedures established in this Indenture. In the case of a lease, however, the Issuer shall not be released from any of the obligations or covenants under this Indenture. (d) Unless the Note Guarantee of the applicable Subsidiary Guarantor is permitted to be released in connection with such transaction as described in Section 4.16 or Section 10.06, such Subsidiary Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or amalgamate or merge with or into (whether or not it is the surviving Person) another Person, other than the Issuer or another Subsidiary Guarantor, unless; provided that: (1) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of Antero Midstream Partners into a form of entity other than a limited partnership formed under Delaware law; (2) the entity so formed by or resulting from such reorganization is an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia; (3) the entity so formed by or resulting from such reorganization assumes all the obligations of Antero Midstream Partners under the Notes, this Indenture and any Registration Rights Agreement then in effect pursuant to a supplemental indenture in form reasonably satisfactory to the Trustee; (4) immediately after giving effect to that transaction, such reorganization no Default or Event of Default exists; and (25) either: such reorganization is not adverse to the Holders of the Notes (for purposes of this clause (5) it is stipulated that such reorganization shall not be considered adverse to the Holders of the Notes solely because the successor or survivor of such reorganization (a) the Person (if other than the Issuer is subject to federal or a Subsidiary Guarantor) acquiring the property in any such sale state income taxation as an entity or disposition or the Person (if other than the Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation or merger assumes all the obligations of that Subsidiary Guarantor, as applicable, under this Indenture and its Note Guarantee pursuant to a supplemental indenture reasonably satisfactory to the Trustee; or (b) such transfer does not violate is considered to be an “includible corporation” of an affiliated group of corporations within the meaning of Section 4.111504(b) of the Code or any similar state or local law).

Merger, Consolidation or Sale of Assets. (a) The Issuer shall not Borrower will not, directly or indirectly: (1a) consolidate, amalgamate consolidate or merge with or into another Person (whether or not it the Borrower is the surviving corporation); or (2b) sell, assign, lease, transfer, convey or otherwise dispose of all or substantially all of its the properties or assets, assets of the Borrower and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; unless, unlesssubject to Section 9.22: (1i) either: either (aA) the Issuer Borrower is the surviving corporation; or corporation or (bB) the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the IssuerBorrower) or to which such sale, assignment, lease, transfer, conveyance or other disposition has been made (the “Surviving Person”) is a Person corporation, partnership or limited liability company organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if such Surviving Person is not a corporation, a Restricted Subsidiary that is a corporation shall become a co-obligor of the Notes pursuant to a supplemental indenture reasonably satisfactory to the Trustee; (2ii) the Surviving Person formed by or surviving any such consolidation or merger (if other than the IssuerBorrower) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Issuer Borrower under the Notes and this Indenture Loan Documents pursuant to a supplemental indenture joinder agreements or other documents and agreements reasonably satisfactory to the TrusteeAdministrative Agent; (3iii) immediately after such transaction, no Default or Event of Default exists;; and (4iv) (A) the Borrower or the Person formed by or surviving any of such consolidation or merger (if other than the following is true: (a) Borrower), or to which such sale, assignment, transfer, conveyance or other disposition has been made will, on the date of such transaction after giving pro forma effect thereto and to any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, the Issuer, or the Surviving Person, would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the provisions of Section 4.10(a); 6.01(a) or (bB) the Fixed Charge Coverage Ratio of the Issuer Borrower or the Surviving Person, Person formed by or surviving any such consolidation or merger (if other than the Borrower) is greater after giving pro forma effect to such transaction consolidation or merger and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, would be greater period than or equal to the Borrower’s actual Fixed Charge Coverage Ratio of the Issuer immediately prior to such transaction; or (c) the Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer immediately prior to such transaction; and (5) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating that such consolidation, merger or amalgamation, or sale, assignment, lease, transfer, conveyance or other disposition and such supplemental indenture, if any, comply with this Indenture and constitutes the legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms. (b) Sections 5.01(a)(1) through (5) above and Section 5.01(d)(1) shall not apply to: (a) any Restricted Subsidiary of the Issuer merging, amalgamating or consolidating with or into the Issuer or another Restricted Subsidiary; or (b) the transfer of assets between or among the Issuer’s Restricted Subsidiaries, or from any of the Issuer’s Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3), (4) and (5) above shall not apply to the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the assets of the Issuer to an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing the Issuer in another state in the United States and/or for the sole purpose of forming or collapsing a holding company structureperiod. (c) The Surviving Person shall succeed to, and be substituted for, and may exercise every right and power of the Issuer under this Indenture. In the case of a lease, however, the Issuer shall not be released from any of the obligations or covenants under this Indenture. (d) Unless the Note Guarantee of the applicable Subsidiary Guarantor is permitted to be released in connection with such transaction as described in Section 4.16 or Section 10.06, such Subsidiary Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or amalgamate or merge with or into (whether or not it is the surviving Person) another Person, other than the Issuer or another Subsidiary Guarantor, unless: (1) immediately after giving effect to that transaction, no Default or Event of Default exists; and (2) either: (a) the Person (if other than the Issuer or a Subsidiary Guarantor) acquiring the property in any such sale or disposition or the Person (if other than the Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation or merger assumes all the obligations of that Subsidiary Guarantor, as applicable, under this Indenture and its Note Guarantee pursuant to a supplemental indenture reasonably satisfactory to the Trustee; or (b) such transfer does not violate Section 4.11.

Merger, Consolidation or Sale of Assets. (a) The Issuer Company shall not not, directly or indirectly: (1) consolidate, amalgamate consolidate or merge with or into another Person (whether or not it the Company is the surviving corporation); or (2) sell, assign, lease, transfer, convey or otherwise dispose of all or substantially all of its the properties or assets, assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless: (1) either: (aA) the Issuer Company is the surviving corporation; or (bB) the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, lease, transfer, conveyance or other disposition has been made (the “Surviving Person”) is a Person an entity organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that and, if such Surviving Person entity is not a corporation, a Restricted Subsidiary that is a corporation shall become a co-obligor of the Notes pursuant to is a supplemental indenture reasonably satisfactory to the Trusteecorporation organized or existing under any such laws; (2) the Surviving Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Issuer Company under the Notes and Notes, this Indenture and the Registration Rights Agreement pursuant to a supplemental indenture agreements reasonably satisfactory to the Trustee; (3) immediately after such transaction, no Default or Event of Default exists;; and (4) the Company or the Person formed by or surviving any of such consolidation or merger (if other than the following is true: (a) Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made would, on the date of 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, the Issuer, or the Surviving Person, would period (i) be permitted to incur at least $1.00 of additional Indebtedness pursuant to Section 4.10(a); (b) the Fixed Charge Coverage Ratio of the Issuer test set forth in Section 4.09(a) hereof; or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same (ii) have had occurred at the beginning of the applicable four-quarter period, would be a Fixed Charge Coverage Ratio greater than or equal to the actual Fixed Charge Coverage Ratio for the Company for such four-quarter period. In addition, the Company will not, directly or indirectly, lease all or substantially all of the Issuer immediately prior properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to such transaction; or (c) the Indebtedness any other Person. This Section 5.01 will not apply to Consolidated Tangible Net Worth Ratio of the Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer immediately prior to such transaction; and (5) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating that such consolidation, merger or amalgamation, or sale, assignment, lease, transfer, conveyance conveyance, lease or other disposition and such supplemental indenture, if any, comply with this Indenture and constitutes the legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms. (b) Sections 5.01(a)(1) through (5) above and Section 5.01(d)(1) shall not apply to: (a) any Restricted Subsidiary of the Issuer merging, amalgamating or consolidating with or into the Issuer or another Restricted Subsidiary; or (b) the transfer of assets between or among the Issuer’s Company and its Restricted Subsidiaries, or from ; provided that any of the Issuer’s Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3), (4) and (5) above shall not apply to the sale, assignment, transfer, conveyance, transfer, lease or other disposition of all assets from the Company or substantially all any Restricted Subsidiary to a Restricted Subsidiary that is not a Guarantor must not be prohibited by Section 4.07 hereof. Clauses (3) and (4) of this Section 5.01 will not apply to any merger or consolidation of the assets Company (a) with or into one of the Issuer to its Restricted Subsidiaries for any purpose or (b) with or into an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing the Issuer Company in another state in the United States and/or for the sole purpose of forming or collapsing a holding company structurejurisdiction. (c) The Surviving Person shall succeed to, and be substituted for, and may exercise every right and power of the Issuer under this Indenture. In the case of a lease, however, the Issuer shall not be released from any of the obligations or covenants under this Indenture. (d) Unless the Note Guarantee of the applicable Subsidiary Guarantor is permitted to be released in connection with such transaction as described in Section 4.16 or Section 10.06, such Subsidiary Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or amalgamate or merge with or into (whether or not it is the surviving Person) another Person, other than the Issuer or another Subsidiary Guarantor, unless: (1) immediately after giving effect to that transaction, no Default or Event of Default exists; and (2) either: (a) the Person (if other than the Issuer or a Subsidiary Guarantor) acquiring the property in any such sale or disposition or the Person (if other than the Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation or merger assumes all the obligations of that Subsidiary Guarantor, as applicable, under this Indenture and its Note Guarantee pursuant to a supplemental indenture reasonably satisfactory to the Trustee; or (b) such transfer does not violate Section 4.11.

Merger, Consolidation or Sale of Assets. (a) The Issuer shall not Issuers may not, directly or indirectly: (1) consolidate, amalgamate consolidate or merge with or into another Person (whether or not it is the Issuers are the surviving corporation); ) or (2) sell, assign, lease, transfer, convey or otherwise dispose of all or substantially all of its the properties or assets, taken as a wholeassets of the Issuers, in one or more related transactions, to another PersonPerson other than another Issuer or a Guarantor, unless: (1) either: : (aA) the Issuer is Issuers are the surviving corporationPerson; or or (bB) the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the IssuerIssuers) or to which such sale, assignment, lease, transfer, conveyance or other disposition has been made (the “Surviving Person”) is a Person corporation or so long as one of the issuers of the Notes shall remain a corporation, a limited partnership or limited liability company organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if such Surviving Person is not a corporation, a Restricted Subsidiary that is a corporation shall become a co-obligor of the Notes pursuant to a supplemental indenture reasonably satisfactory to the Trustee; (2) the Surviving Person formed by or surviving any such consolidation or merger (if other than the Issuer) Issuers or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Issuer Issuers, under the Notes and Notes, this Indenture and the Registration Rights Agreement pursuant to a supplemental indenture reasonably satisfactory to the Trustee; (3) immediately after such transaction no Default or Event of Default exists; and (4) except with respect to a consolidation or merger of the Issuers with or into a Guarantor, the Issuers or the Person formed by or surviving any such consolidation or merger (if other than the Issuers), or to which such sale, assignment, transfer, conveyance or other disposition has been made shall, on the date of such transaction after giving pro form effect thereto and any related financing transactions as if 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 Leverage Ratio test set forth in the first paragraph of Section 4.09. (b) A Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or merge with or into (whether or not such Guarantor is the surviving Person), another Person, other than Media or another Guarantor, unless: (1) either (A) such Guarantor is the surviving corporation; or (B) the Person formed by or surviving any such sale, consolidation or merger (if other than such Guarantor) or to which such sale or other disposition has been made is a corporation, limited partnership or limited liability company organized or existing under the laws of the United States, any state of the United States or the District of Columbia; (2) the Person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation or merger assumes all the obligations of that Guarantor under the Indenture, its Subsidiary Guarantee and the Registration Rights Agreement pursuant to a supplemental indenture reasonably satisfactory to the Trustee; (3) immediately after giving effect to that transaction, no Default or Event of Default exists;; and (4) such Guarantor, or the Person formed by or surviving any of the following is true: such consolidation or merger (a) if other than such Guarantor), or to which such sale or other disposition has been made shall, on the date of 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, the Issuer, or the Surviving Person, would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Leverage Ratio test set forth in the first paragraph of Section 4.10(a); (b) the Fixed Charge Coverage Ratio of the Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, would be greater than or equal to the actual Fixed Charge Coverage Ratio of the Issuer immediately prior to such transaction; or4.09 hereof. (c) Neither the Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer Issuers nor any Guarantor may, directly or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer immediately prior to such transaction; and (5) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating that such consolidation, merger or amalgamation, or sale, assignment, lease, transfer, conveyance or other disposition and such supplemental indenture, if any, comply with this Indenture and constitutes the legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms. (b) Sections 5.01(a)(1) through (5) above and Section 5.01(d)(1) shall not apply to: (a) any Restricted Subsidiary of the Issuer merging, amalgamating or consolidating with or into the Issuer or another Restricted Subsidiary; or (b) the transfer of assets between or among the Issuer’s Restricted Subsidiaries, or from any of the Issuer’s Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3), (4) and (5) above shall not apply to the sale, assignment, conveyance, transferindirectly, lease or other disposition of all or substantially all of the assets of the Issuer their properties or assets, in one or more related transactions, to an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing the Issuer in another state in the United States and/or for the sole purpose of forming or collapsing a holding company structureany other Person. (c) The Surviving Person shall succeed to, and be substituted for, and may exercise every right and power of the Issuer under this Indenture. In the case of a lease, however, the Issuer shall not be released from any of the obligations or covenants under this Indenture. (d) Unless the Note Guarantee of the applicable Subsidiary Guarantor is permitted to be released in connection with such transaction as described in Section 4.16 or Section 10.06, such Subsidiary Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or amalgamate or merge with or into (whether or not it is the surviving Person) another Person, other than the Issuer or another Subsidiary Guarantor, unless: (1) immediately after giving effect to that transaction, no Default or Event of Default exists; and (2) either: (a) the Person (if other than the Issuer or a Subsidiary Guarantor) acquiring the property in any such sale or disposition or the Person (if other than the Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation or merger assumes all the obligations of that Subsidiary Guarantor, as applicable, under this Indenture and its Note Guarantee pursuant to a supplemental indenture reasonably satisfactory to the Trustee; or (b) such transfer does not violate Section 4.11.

Merger, Consolidation or Sale of Assets. (a) The Issuer shall not may not, directly or indirectly: (1) consolidate, amalgamate consolidate or merge with or into another Person (whether or not it the Issuer is the surviving corporationentity); or (2) sell, assign, transfer, lease, transfer, convey or otherwise dispose of all or substantially all of its the properties or assetsassets of the Issuer and its Subsidiaries, taken as a whole, in one or more related transactions, to another Person, unless: (1) either: (aA) the Issuer is the surviving corporationentity; or (bB) the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the Issuer) or to which such sale, assignment, transfer, lease, transfer, conveyance or other disposition has been made (the “Surviving Person”) is a Person organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if such Surviving Person is not a corporation, a Restricted Subsidiary that is a corporation shall become a co-obligor of the Notes pursuant to a supplemental indenture reasonably satisfactory to the Trustee; (2) the Surviving 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 has been made assumes all the obligations of the Issuer under the Notes and this Indenture pursuant to a supplemental indenture or other agreement reasonably satisfactory to the Trustee; (3) immediately after such transaction, no Default or Event of Default exists; (4) in the case of a transaction involving the Issuer, the Issuer or the Person formed by or surviving any of such consolidation or merger (if other than the following is trueIssuer), or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made, will, either: (aA) be, on the date of 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, the Issuer, or the Surviving Person, would be permitted to incur at least $1.00 of additional Indebtedness pursuant to Section 4.10(a); (b) the Fixed Charge Coverage Ratio test set forth in Section 4.09(a); or (B) have a Fixed Charge Coverage Ratio, on the date of the Issuer or the Surviving Person, such transaction and after giving pro forma effect to such transaction thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, would be greater not less than or equal to the actual Fixed Charge Coverage Ratio of the Issuer immediately prior to such transaction; or (c) the Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer immediately prior to such transaction; and (5) the Issuer shall have has delivered to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel Counsel, each stating that such consolidation, merger or amalgamation, or sale, assignment, lease, transfer, conveyance or other disposition and such supplemental indenture, indenture or other agreement (if any, ) comply with this Indenture and constitutes the legal, valid and binding obligation all conditions precedent therein relating to such transaction have been satisfied; provided that clause (4) shall not apply to any sale of assets of a Restricted Subsidiary to the Issuer enforceable against it in accordance with its termsor another Restricted Subsidiary or the merger or consolidation of a Restricted Subsidiary into any Restricted Subsidiary or the Issuer. (b) Sections 5.01(a)(1) through (5) above and Section 5.01(d)(1) shall not apply to: (a) any Restricted Subsidiary of the Issuer merging, amalgamating or consolidating with or into the Issuer or another Restricted Subsidiary; or (b) the transfer of assets between or among the Issuer’s Restricted Subsidiaries, or from any of the Issuer’s Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3), (4) and (5) above shall not apply to the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the assets of the Issuer to an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing the Issuer in another state in the United States and/or for the sole purpose of forming or collapsing a holding company structure. (c) The Surviving Person shall succeed to, and be substituted for, and may exercise every right and power of the Issuer under this Indenture. In the case of a lease, however, the Issuer shall not be released from any of the obligations or covenants under this Indenture. (d) Unless the Note Guarantee of the applicable Subsidiary Guarantor is permitted to be released in connection with such transaction as described in Section 4.16 or Section 10.06, such Subsidiary A Guarantor may not sell or otherwise dispose of all or substantially all of its properties or assets to, or consolidate with or amalgamate or merge with or into (whether or not it such Guarantor is the surviving Person) ), another Person, other than the Issuer or another Subsidiary Guarantor, unless:except as permitted by Sections 10.04 and 10.05 hereof. (1c) immediately after giving effect to that transactionNotwithstanding anything in this Section 5.01, no Default or Event of Default exists; and (2) either: (a) the Person (if other than the Issuer or a Subsidiary Guarantor) acquiring the property in any such sale or disposition or the Person (if other than the Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation or merger assumes all the obligations of that Subsidiary Guarantor, as applicable, Transactions will be permitted under this Indenture and its Note Guarantee pursuant to a supplemental indenture reasonably satisfactory to the Trustee; or (b) such transfer does not violate Section 4.11Indenture.

Merger, Consolidation or Sale of Assets. (a) The Issuer shall not will not, directly or indirectly: (1) consolidate, amalgamate consolidate or merge with or into another Person, (2) consummate a Division as the Dividing Person (whether or not it the Issuer is the surviving corporation); entity) or (23) sell, assign, lease, transfer, convey convey, lease or otherwise dispose of all or substantially all of its the properties or assets, assets of the Issuer and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another PersonPerson (other than in connection with the Transactions), unless: (1) either: : (a) the Issuer is the surviving corporationPerson; or or (b) the Person formed by or surviving any such consolidation, amalgamation merger or merger Division (if other than the Issuer) or to which such sale, assignment, lease, transfer, conveyance conveyance, lease or other disposition has been made (the “Surviving Person”) is a Person an entity organized or existing under the laws of England and Wales or the laws of the United States, any state of the United States or the District of Columbia; provided that Columbia (such Person, the “Surviving Entity”) and, if such Surviving Person entity is not a corporation, a Restricted Subsidiary that is a corporation shall become a co-obligor of the Notes pursuant to is a supplemental indenture reasonably satisfactory to the Trusteecorporation organized or existing under any such laws; (2) the Surviving Person Entity (if other than the Issuer) or the Person to which such sale, assignment, transfer, conveyance, lease or other disposition has been made, provides a Note Guarantee on the same terms and conditions as those set forth in the Indenture and applicable to the other Guarantors, assumes all the obligations of the Issuer under the Notes and this Indenture Indenture, pursuant to a supplemental indenture reasonably satisfactory to the Trusteeindenture; (3) immediately after such transaction, no Default or Event of Default exists; (4) any of the following is true: (a) on Issuer or the date of such transaction Surviving Entity would, 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, the Issuer, or the Surviving Person, would (a) be permitted to incur at least $1.00 of additional Indebtedness pursuant to Section 4.10(a); as Ratio Debt, (b) the have had a Fixed Charge Coverage Ratio of the Issuer equal to or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, would be greater than or equal to the actual Fixed Charge Coverage Ratio of for the Issuer immediately prior to for such transaction; or four-quarter period or (c) the Indebtedness have had a Consolidated Total Debt Ratio equal to Consolidated Tangible Net Worth Ratio of or less than such ratio for the Issuer or the Surviving Person, after giving pro forma effect to for such transaction and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer immediately prior to such transactionfour-quarter period; and (5) the Issuer Surviving Entity (if other than the Issuer) shall have delivered deliver, or cause to be delivered, to the Trustee an Officer’s Certificate and an Opinion of Counsel Counsel, each stating that such consolidation, merger or amalgamationmerger, or Division, sale, assignment, lease, transfer, conveyance or other disposition and such supplemental indenture, if any, comply with this Indenture and constitutes the legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms. (b) Sections 5.01(a)(1) through (5) above and Section 5.01(d)(1) shall not apply to: (a) any Restricted Subsidiary of the Issuer merging, amalgamating or consolidating with or into the Issuer or another Restricted Subsidiary; or (b) the transfer of assets between or among the Issuer’s Restricted Subsidiaries, or from any of the Issuer’s Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3), (4) and (5) above shall not apply to the saleconveyance, assignment, conveyance, transfer, lease or other disposition complies with the requirements of this Indenture; (b) Section 5.01(a) will not apply to any sale, assignment, transfer, conveyance, lease, Division or other disposition of assets between or among the Issuer and any Guarantor. Clauses (3) and (4) of Section 5.01(a) will not apply to (a) any merger, consolidation or amalgamation of any Restricted Subsidiary with or into the Issuer, (b) any consolidation, amalgamation or merger of the Issuer, or sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all part of the properties and assets of the Issuer to any Guarantor, (c) a merger, consolidation or amalgamation of the Issuer with or into an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing the Issuer in another state in jurisdiction so long as the United States and/or for the sole purpose amount of forming or collapsing a holding company structure. (c) The Surviving Person shall succeed to, and be substituted for, and may exercise every right and power Indebtedness of the Issuer under this Indenture. In the case of a lease, however, the Issuer shall and its Restricted Subsidiaries is not be released from any of the obligations increased thereby or covenants under this Indenture. (d) Unless the Note Guarantee conversion of the applicable Subsidiary Guarantor is permitted to be released in connection with such transaction as described in Section 4.16 or Section 10.06, such Subsidiary Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or amalgamate or merge with or into (whether or not it is the surviving Person) another Person, other than the Issuer or another Subsidiary Guarantor, unless: (1) immediately after giving effect to that transaction, no Default or Event of Default exists; and (2) either: (a) the Person (if other than the Issuer or a Restricted Subsidiary Guarantor) acquiring into a corporation, partnership, limited partnership, limited liability company or trust organized or existing under the property in laws of the United States, any such sale state or disposition territory thereof or the Person (if other than District of Columbia. In addition, the Issuer or a any Restricted Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation or merger assumes all the obligations of that Subsidiary Guarantor, as applicable, under this Indenture and may change its Note Guarantee pursuant to a supplemental indenture reasonably satisfactory to the Trustee; or (b) such transfer does not violate Section 4.11name.

Merger, Consolidation or Sale of Assets. (a) The Issuer shall not Borrower will not, directly or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not it Borrower is the surviving corporation); ) or (2) sell, assign, lease, transfer, convey convey, lease or otherwise dispose of all or substantially all of the assets of Borrower and its properties or assetsRestricted Subsidiaries, taken as a whole, in one or more related transactions, to another Person, unless: (1) either: : (a) the Issuer Borrower is the surviving corporationor continuing entity; or or (b) the Person formed by or surviving or continuing following any such consolidation, arrangement, amalgamation or merger (if other than the Issuer) or to which such sale, assignment, lease, transfer, conveyance conveyance, lease or other disposition has been made (the “Surviving Person”) is a Person an entity organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if Columbia (such Person, the “Surviving Person is not a corporation, a Restricted Subsidiary that is a corporation shall become a co-obligor of the Notes pursuant to a supplemental indenture reasonably satisfactory to the TrusteeEntity”); (2) the Surviving Person Entity (if other than Borrower) or the Issuer) Person to which such sale, assignment, transfer, conveyance, lease or other disposition has been made assumes all the obligations of Borrower, as applicable, under this Agreement and the Issuer under the Notes and this Indenture Security Documents, pursuant to a supplemental indenture documents or instruments in form reasonably satisfactory to the TrusteeAdministrative Agent; (3) immediately after such transaction, no Default or Event of Default exists[reserved]; (4) [reserved]; (5) to the extent any assets of the Person which is merged, consolidated or amalgamated with or into the Surviving Entity are assets of the type which would constitute Collateral under the Security Documents, the Surviving Entity will take such action as may be reasonably necessary to cause such property and assets to be made subject to the Lien of the Security Documents in the manner and to the extent required in this Agreement or any of the following is true: (a) on the date of Security Documents and shall take all reasonably necessary action so that 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, the Issuer, or the Surviving Person, would be permitted to incur at least $1.00 of additional Indebtedness pursuant to Section 4.10(a); (b) the Fixed Charge Coverage Ratio of the Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, would be greater than or equal Liens are perfected to the actual Fixed Charge Coverage Ratio of extent required by the Issuer immediately prior to such transaction; or (c) the Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer immediately prior to such transactionSecurity Documents; and (56) the Issuer shall have delivered Collateral owned by or transferred to the Trustee an Officer’s Certificate Surviving Entity shall: (a) continue to constitute Collateral under this Agreement and an Opinion of Counsel each stating that such consolidationthe Security Documents, merger or amalgamation, or sale, assignment, lease, transfer, conveyance or other disposition and such supplemental indenture, if any, comply with this Indenture and constitutes (b) be subject to the legal, valid and binding obligation Lien in favor of the Issuer enforceable against it in accordance with its termsCollateral Agent, for the benefit of the Secured Parties, and (c) not be subject to any Liens other than Permitted Liens. (b) Sections 5.01(a)(1) through (5) above and This Section 5.01(d)(1) shall not apply to: (a) any Restricted Subsidiary of the Issuer merging, amalgamating or consolidating with or into the Issuer or another Restricted Subsidiary; or (b) the transfer of assets between or among the Issuer’s Restricted Subsidiaries, or from any of the Issuer’s Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3), (4) and (5) above shall 6.07 will not apply to the (i) any sale, assignment, transfer, conveyance, transfer, lease or other disposition of all assets between or substantially all among Borrower and/or any Guarantor, (ii) any consolidation, amalgamation or other combination or merger of the assets of the Issuer to Borrower with or into an Affiliate incorporated or organized solely for the purpose of changing the legal domicile of Borrower, reincorporating such or reorganizing changing the Issuer legal form of Borrower in another state in jurisdiction so long as the United States and/or for the sole purpose amount of forming Indebtedness of Borrower and its Restricted Subsidiaries is not increased thereby, (iii) any consolidation, amalgamation or collapsing a holding company structure. (c) The Surviving Person shall succeed toother combination, and be substituted for, and may exercise every right and power of the Issuer under this Indenture. In the case of a lease, however, the Issuer shall not be released from any of the obligations merger or covenants under this Indenture. (d) Unless the Note Guarantee of the applicable Subsidiary Guarantor is permitted to be released in connection with such transaction as described in Section 4.16 or Section 10.06, such Subsidiary Guarantor may not sell or otherwise dispose transfer of all or substantially part of the properties and assets of any Restricted Subsidiary to or with any of Borrower or Guarantors, (iv) any consolidation, amalgamation or other combination, merger or transfer of all or part of its the properties and assets to, of any Restricted Subsidiary to or consolidate with or amalgamate or merge with or into any other Restricted Subsidiary and (whether or not it is the surviving Person) another Person, other than the Issuer or another Subsidiary Guarantor, unless: (1) immediately after giving effect to that transaction, no Default or Event of Default exists; and (2) either: (av) the Person (if other than the Issuer Transactions or a Subsidiary Guarantor) acquiring the property in any such sale or disposition or the Person (if other than the Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation or merger assumes all the obligations of that Subsidiary Guarantor, as applicable, under this Indenture and its Note Guarantee pursuant to a supplemental indenture reasonably satisfactory to the Trustee; or (b) such transfer does not violate Section 4.11Permitted Reorganization.

Merger, Consolidation or Sale of Assets. (a) The Issuer shall not Neither the Lead Borrower nor Carnival plc will, directly or indirectly: (1) consolidate, amalgamate consolidate or merge with or into another Person (whether or not it the Lead Borrower or Carnival plc (as applicable) is the surviving corporationPerson); , or (2) sell, assign, transfer, lease, transfer, convey or otherwise dispose of all or substantially all of its the properties or assets, assets of the Company and its Subsidiaries which are Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless: (1i) either: : (a) the Issuer Lead Borrower or Carnival plc (as applicable) is the surviving corporationPerson; or or (b) the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the IssuerLead Borrower or Carnival plc (as applicable)) or to which such sale, assignment, transfer, 110 lease, transfer, conveyance or other disposition has been made (the “Surviving Person”) is a Person an entity organized or existing under the laws of the United StatesSwitzerland, Canada or any state of the United States or the District of Columbia; provided that if such Surviving Person is not a corporation, a Restricted Subsidiary that is a corporation shall become a co-obligor of the Notes pursuant to a supplemental indenture reasonably satisfactory to the TrusteePermitted Jurisdiction; (2ii) the Surviving Person formed by or surviving any such consolidation or merger (if other than the IssuerLead Borrower or Carnival plc (as applicable)) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made assumes (a) by a Joinder entered into with the Administrative Agent, all the obligations of Lead Borrower or Carnival plc (as applicable) under this Agreement (including Carnival plc’s Guarantee, if applicable) and (b) all obligations of the Issuer Lead Borrower or Carnival plc (as applicable) under the Notes Intercreditor Agreement, any Additional Intercreditor Agreement and this Indenture pursuant to a supplemental indenture reasonably satisfactory the Security Documents, subject to the TrusteeAgreed Security Principles; (3iii) immediately after such transaction, no Default or Event of Default existsis continuing; (4iv) the Lead Borrower or Carnival plc (as applicable) or the Person formed by or surviving any of such consolidation or merger (if other than the following is true: Lead Borrower or Carnival plc (a) as applicable)), or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made would, on the date of 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, the Issuer, or the Surviving Person, would be permitted to incur at least $1.00 of additional Indebtedness pursuant to Section 4.10(a); (b) the Fixed Charge Coverage Ratio of the Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, would be greater than or equal to the actual Fixed Charge Coverage Ratio of the Issuer immediately prior to such transaction; or (c) the Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer immediately prior to such transactiontest set forth in Section 6.2.1(a); and (5v) the Issuer shall have delivered Lead Borrower delivers to the Trustee Administrative Agent an Officer’s Certificate and an Opinion of Counsel Counsel, in each case, stating that such consolidation, merger or amalgamationtransfer and, or in the case in which a Xxxxxxx is entered into, such Xxxxxxx, comply with this Section 6.2.4 and that all conditions precedent provided for in this Agreement relating to such transaction have been complied with. Clauses (iii) and (iv) of this Section 6.2.4(a) shall not apply to any sale, assignment, transfer, lease, transfer, conveyance or other disposition and such supplemental indenture, if any, comply with this Indenture and constitutes the legal, valid and binding obligation of all or substantially all of the Issuer enforceable against it assets to or merger or consolidation of the Lead Borrower or Carnival plc (as applicable) with or into a Guarantor and clause (iv) of this Section 6.2.4(a) will not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger or consolidation of the Lead Borrower or Carnival plc (as applicable) with or into an Affiliate solely for the purpose of reincorporating the Lead Borrower or Carnival plc (as applicable) in accordance with its termsanother jurisdiction for tax reasons. (b) Sections 5.01(a)(1A Subsidiary Guarantor (other than a Subsidiary Guarantor whose Guarantee is to be released in accordance with the terms of the Guarantee, this Agreement, the Intercreditor Agreement and any Additional Intercreditor Agreement as provided in Section 12.3) through (5) above and Section 5.01(d)(1) shall not apply towill not, directly or indirectly: (a1) consolidate or merge with or into another Person (whether or not such Subsidiary Guarantor is the surviving Person), or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of such Subsidiary Guarantor and its Subsidiaries which are Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless: (i) immediately after giving effect to that transaction, no Default or Event of Default is continuing; (ii) either: 111 (A) the Person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation or merger assumes all the obligations of that Subsidiary Guarantor under its Guarantee and this Agreement, the Intercreditor Agreement, any Additional Intercreditor Agreement and the Security Documents to which such Subsidiary Guarantor is a party, pursuant to a Joinder; or (B) such sale, assignment, transfer, lease, conveyance or other disposition of assets does not violate the provisions of this Agreement (including Section 6.2.5); and (iii) the Lead Borrower delivers to the Administrative Agent an Officer’s Certificate and Opinion of Counsel, in each case, stating that such consolidation, merger or transfer and, in the case in which a Xxxxxxx is entered into, such Xxxxxxx, comply with this Section 6.2.4 and that all conditions precedent provided for in this Agreement relating to such transaction have been complied with. (c) Notwithstanding the provisions of paragraph (b) above, (x)(a) any Restricted Subsidiary of the Issuer merging, amalgamating may consolidate or consolidating merge with or into the Issuer or another Restricted Subsidiary; sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties and assets to any Guarantor and (b) the transfer any Guarantor may consolidate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of assets between all or among the Issuer’s Restricted Subsidiaries, or from any substantially all of the Issuer’s properties and assets of such Guarantor and its Subsidiaries which are Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3), (4) another Guarantor and (5y) above shall not apply to any Guarantor may consolidate or merge with or into an Affiliate incorporated or organized for the purpose of changing the legal domicile of such Guarantor, reincorporating such Guarantor in another jurisdiction or changing the legal form of such Guarantor. (d) Upon any consolidation or merger, or any sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the property and assets of the Issuer Borrowers or Carnival plc in accordance with Section 6.2.4 of this Agreement, any surviving entity formed by such consolidation or into which either of the Borrowers or Carnival plc, as applicable, is merged or to an Affiliate incorporated which such sale, conveyance, transfer, lease or organized solely for the purpose of reincorporating or reorganizing the Issuer in another state in the United States and/or for the sole purpose of forming or collapsing a holding company structure. (c) The Surviving Person other disposition is made, shall succeed to, and be substituted for, and may exercise every right and power of of, the Issuer Company under this Indenture. In Agreement with the case of a lease, however, same effect as if such surviving entity had been named as the Issuer Company herein; provided that the Company shall not be released from any its obligation to pay the Obligations in the case of the obligations or covenants under this Indenture. (d) Unless the Note Guarantee of the applicable Subsidiary Guarantor is permitted to be released in connection with such transaction as described in Section 4.16 or Section 10.06, such Subsidiary Guarantor may not sell or otherwise dispose a lease of all or substantially all of its assets to, or consolidate with or amalgamate or merge with or into (whether or not it is the surviving Person) another Person, other than the Issuer or another Subsidiary Guarantor, unless: (1) immediately after giving effect to that transaction, no Default or Event of Default exists; and (2) either: (a) the Person (if other than the Issuer or a Subsidiary Guarantor) acquiring the property in any such sale or disposition or the Person (if other than the Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation or merger assumes all the obligations of that Subsidiary Guarantor, as applicable, under this Indenture and its Note Guarantee pursuant to a supplemental indenture reasonably satisfactory to the Trustee; or (b) such transfer does not violate Section 4.11assets.

Merger, Consolidation or Sale of Assets. (a) The Issuer shall not Borrower may not, directly or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not it the Borrower is the surviving corporationPerson); or (2) sell, assign, lease, transfer, convey or otherwise dispose of all or substantially all of its the properties or assets, assets of the Borrower and its Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:unless (subject, in the case of (1) of this part (a), to Clause 14.24(e) (Insolvency): (1) either: : (a) the Issuer Borrower is the surviving corporationPerson and the laws of all relevant jurisdictions recognise that the Borrower as surviving Person automatically and without any action on the part of any Person is bound by all the obligations of the Finance Documents and any Additional Intercreditor Agreement; or or (b) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the IssuerBorrower) or to which such sale, assignment, lease, transfer, conveyance or other disposition has been made (the “Surviving Person”x) is a Person corporation, limited liability company, trust or limited partnership organized or existing under the laws of the United Statesan Eligible Jurisdiction, any state of the United States or the District of Columbia; provided that if such Surviving Person is not a corporation, a Restricted Subsidiary that is a corporation shall become a co-obligor of the Notes pursuant to a supplemental indenture reasonably satisfactory to the Trustee; and (2y) the Surviving Person (if other than the Issuer) expressly assumes all the obligations of the Issuer Borrower under the Notes Finance Documents and this Indenture pursuant to a supplemental indenture reasonably satisfactory to the Trusteeany Additional Intercreditor Agreement; (32) immediately after giving effect to such transaction, no Default or Event of Default exists;; and (43) any of the following is true: either (a) the ratio of the principal amount of the Total Debt to the Adjusted EBITDA of the Borrower or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Borrower), or to which such sale, assignment, transfer, conveyance or other disposition has been made, will, on the date of such transaction transaction, after giving pro forma effect thereto and to any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, no greater than such ratio was prior to such transaction or (ii) solely in the Issuercase of a transaction that is a consolidation, amalgamation or merger, at the Surviving time of entry into definitive documentation with respect to such transaction (A) the ratio of the principal amount of the Total Debt of such Person to the Fair Market Value of such Person does not exceed 80% or (B) such Person (i) has common or preferred equity publicly listed on an internationally recognised stock exchange and (ii) with respect to such publicly listed equity, has a market capitalisation greater than US$500,000,000. In addition, the Borrower may not, directly or indirectly, lease all or substantially all of its properties or assets, in one or more related transactions, to any other Person; provided that the foregoing shall not prohibit the chartering out of Vessels in the ordinary course of a Permitted Business. For purposes of the foregoing, would 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 Subsidiaries, the Equity Interests of which constitute all or substantially all of the properties and assets of the Borrower, will be permitted deemed to incur at least $1.00 be the transfer of additional Indebtedness pursuant to Section 4.10(a);all or substantially all of the properties and assets of the Borrower. (b) Subject to Clause 14.24(e) (Insolvency) the Fixed Charge Coverage Ratio Borrower will not permit any Guarantor to, directly or indirectly, consolidate, amalgamate or merge with or into or acquire another Person (whether or not the Borrower or such Guarantor is the surviving Person) unless: (1) subject to the guarantee release provisions described under paragraph 12 below, such Guarantor is the surviving Person and the laws of all relevant jurisdictions recognise that the Guarantor as surviving Person automatically and without any action on the part of any Person is bound by all the obligations of the Issuer Finance Documents and any Additional Intercreditor Agreement or the Surviving PersonPerson formed by or surviving any such consolidation, after giving pro forma effect to amalgamation, merger or acquisition (if other than the Borrower or an Obligor) and expressly assumes all the obligations of such transaction Guarantor under the Finance Documents and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, would be greater than or equal to the actual Fixed Charge Coverage Ratio of the Issuer Additional Intercreditor Agreement; and (2) immediately prior to after such transaction; or, no Default or Event of Default exists. (c) the Indebtedness Subject to Consolidated Tangible Net Worth Ratio of the Issuer or the Surviving PersonClause 14.24(e) (Insolvency), after giving pro forma effect this paragraph 11 will not apply to such transaction and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer immediately prior to such transaction; and (5) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating that such consolidation, amalgamation or merger or amalgamationof, or any such sale, assignment, lease, transfer, conveyance or other disposition and such supplemental indenture, if any, comply with this Indenture and constitutes the legal, valid and binding obligation of all or substantially all of the Issuer enforceable against it properties or assets of the Borrower or a Guarantor or a Wholly Owned Subsidiary of such Person with or to an Affiliate solely for the purpose, and with the effect, of reorganizing the Borrower or a Guarantor or a Wholly Owned Subsidiary, as the case may be, in accordance an Eligible Jurisdiction. In addition, nothing in this paragraph 11 will prohibit any Subsidiary from consolidating or amalgamating with, merging with or into or conveying, transferring or leasing, in one transaction or a series of transactions, all or substantially all of its termsassets to another Subsidiary or reconstituting itself in another jurisdiction for the purpose of reflagging a vessel. (bd) Sections 5.01(a)(1) through (5) above and Section 5.01(d)(1) shall not apply to: (a) Upon any Restricted Subsidiary of the Issuer mergingconsolidation, amalgamating amalgamation or consolidating with or into the Issuer or another Restricted Subsidiary; or (b) the transfer of assets between or among the Issuer’s Restricted Subsidiariesmerger, or from any of the Issuer’s Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3), (4) and (5) above shall not apply to the sale, assignment, conveyance, transfer, lease lease, conveyance or other disposition of all or substantially all of the assets of the Issuer Borrower or another Obligor in accordance with this paragraph 11, the successor Person formed by such consolidation or into or with which the Borrower or such other Obligor, as applicable, is merged or to an Affiliate incorporated which such sale, assignment, transfer, lease, conveyance or organized solely for other disposition is made shall, subject to Clause 26 (Changes to the purpose Obligors) of reincorporating or reorganizing the Issuer in another state in the United States and/or for the sole purpose of forming or collapsing a holding company structure. (c) The Surviving Person shall this Agreement, succeed to, and be substituted forfor (so that from and after the date of such consolidation, merger, sale, lease, conveyance or other disposition, the provisions of this Agreement referring to the Borrower or such other Obligor, as applicable, shall refer instead to the successor Person, as applicable, and not to the Borrower or such other Obligor, as applicable, and such predecessor Person will automatically be released and discharged from its obligations under the Finance Documents), and may exercise every right and power of the Issuer Borrower or such other Obligor, as applicable, under the Finance Documents with the same effect as if such successor Person, as applicable, had been named as the Borrower or an Obligor, as applicable, herein; provided that the predecessor Borrower shall not be relieved from the obligation to pay the principal of and interest on borrowings incurred under this Indenture. In Agreement or its obligations under Clause 22 (Indemnities and Break Costs), except in the case of a sale, assignment, transfer, lease, however, the Issuer shall not be released from any of the obligations conveyance or covenants under this Indenture. (d) Unless the Note Guarantee of the applicable Subsidiary Guarantor is permitted to be released in connection with such transaction as described in Section 4.16 or Section 10.06, such Subsidiary Guarantor may not sell or otherwise dispose other disposition of all or substantially all of its the Borrower’s assets to, or consolidate with or amalgamate or merge with or into (whether or not it is that meets the surviving Person) another Person, other than the Issuer or another Subsidiary Guarantor, unless: (1) immediately after giving effect to that transaction, no Default or Event requirements of Default exists; and (2) either: (a) the Person (if other than the Issuer or a Subsidiary Guarantor) acquiring the property in any such sale or disposition or the Person (if other than the Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation or merger assumes all the obligations of that Subsidiary Guarantor, as applicable, under this Indenture and its Note Guarantee pursuant to a supplemental indenture reasonably satisfactory to the Trustee; or (b) such transfer does not violate Section 4.11paragraph 11.

Merger, Consolidation or Sale of Assets. (a) The Issuer shall not Neither the Parent Guarantor nor either of the Co-Issuers will, directly or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not it is the Parent Guarantor or the Co-Issuers are the surviving corporation); ) or (2) sell, assign, lease, transfer, convey convey, lease or otherwise dispose of all or substantially all of its the properties or assets, assets of the Parent Guarantor and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless: (1) either: : (a) the Issuer Parent Guarantor, or a Co-Issuer, as applicable, is the surviving corporationor continuing entity; or or (b) the Person formed by or surviving or continuing following any such consolidation, arrangement, amalgamation or merger (if other than the Parent Guarantor, or a Co-Issuer, as applicable) or to which such sale, assignment, lease, transfer, conveyance conveyance, lease or other disposition has been made is an entity (the “Surviving Person”x) is a Person organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that Columbia or (y) or incorporated or organized under the laws of Canada or any province or territory thereof (such Person, the “Surviving Entity”) and, in the case of SBP Finance (or any of its successors), if such the Surviving Person Entity thereof is not a corporation, a Restricted Subsidiary that is a corporation shall become a co-obligor of the Notes is a corporation organized or existing under any such laws; provided that, in the case of clause (y) hereof, this Indenture shall be amended or supplemented, without the consent of any Holder of Notes pursuant to Section 9.01(a)(3), to provide for customary tax gross-up provisions with respect to payments made under this Indenture and the Notes and a supplemental indenture reasonably satisfactory provision to allow for a redemption of all (but not less than all) the TrusteeNotes at a price equal to 100% of the aggregate principal amount thereof, plus, accrued and unpaid interest, if any, in the event a tax gross up is required; provided that the Trustee shall not be responsible or liable for the form, terms or adequacy of such provisions; (2) the Surviving Person Entity (if other than the Parent Guarantor, or a Co-Issuer, as applicable) or the Person to which such sale, assignment, transfer, conveyance, lease or other disposition has been made assumes all the obligations of the Issuer Parent Guarantor, or a Co-Issuer, as applicable, under the Notes and Notes, this Indenture and the Security Documents, pursuant to a supplemental indenture or other documents or instruments in form reasonably satisfactory to the Trustee; (3) immediately after such transaction, no Default or Event of Default exists; (4) any of the following is true: (a) on the date of 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 fourCo-quarter period, the IssuerIssuers shall deliver, or the Surviving Personcause to be delivered, would be permitted to incur at least $1.00 of additional Indebtedness pursuant to Section 4.10(a); (b) the Fixed Charge Coverage Ratio of the Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, would be greater than or equal to the actual Fixed Charge Coverage Ratio of the Issuer immediately prior to such transaction; or (c) the Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer immediately prior to such transaction; and (5) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel Counsel, each stating to the effect that such consolidation, merger or arrangement, amalgamation, or merger, sale, assignment, lease, transfer, conveyance or other disposition and such supplemental indenture, if any, comply with this Indenture and constitutes the legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms. (b) Sections 5.01(a)(1) through (5) above and Section 5.01(d)(1) shall not apply to: (a) any Restricted Subsidiary of the Issuer merging, amalgamating or consolidating with or into the Issuer or another Restricted Subsidiary; or (b) the transfer of assets between or among the Issuer’s Restricted Subsidiaries, or from any of the Issuer’s Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3), (4) and (5) above shall not apply to the saleconveyance, assignment, conveyance, transfer, lease or other disposition complies with the requirements of all or substantially all of this Indenture; (5) to the extent any assets of the Issuer Person which is merged, consolidated or amalgamated with or into the Surviving Entity are assets of the type which would constitute Collateral under the Security Documents, the Surviving Entity will take such action as may be reasonably necessary to an Affiliate incorporated or organized solely for cause such property and assets to be made subject to the purpose Lien of reincorporating or reorganizing the Issuer in another state Security Documents in the United States and/or for manner and to the sole purpose of forming extent required in this Indenture or collapsing a holding company structure. (c) The Surviving Person shall succeed to, and be substituted for, and may exercise every right and power of the Issuer under this Indenture. In the case of a lease, however, the Issuer shall not be released from any of the obligations or covenants under this Indenture. (d) Unless Security Documents and shall take all reasonably necessary action so that such Liens are perfected to the Note Guarantee of extent required by the applicable Subsidiary Guarantor is permitted to be released in connection with such transaction as described in Section 4.16 or Section 10.06, such Subsidiary Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or amalgamate or merge with or into (whether or not it is the surviving Person) another Person, other than the Issuer or another Subsidiary Guarantor, unless: (1) immediately after giving effect to that transaction, no Default or Event of Default existsSecurity Documents; and (26) either: the Collateral owned by or transferred to the Surviving Entity shall: (a) the Person (if other than the Issuer or a Subsidiary Guarantor) acquiring the property in any such sale or disposition or the Person (if other than the Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation or merger assumes all the obligations of that Subsidiary Guarantor, as applicable, continue to constitute Collateral under this Indenture and its Note Guarantee pursuant to a supplemental indenture reasonably satisfactory the Security Documents, (b) be subject to the Trustee; orLien in favor of the Collateral Agent for the benefit of the Notes Secured Parties, and (c) not be subject to any Liens other than Permitted Liens. (b) This Section 5.01 will not apply to (i) any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Parent Guarantor, the Co-Issuers and/or any other Guarantor, (ii) any consolidation, amalgamation or other combination or merger of the Parent Guarantor, the Co-Issuers with or into an Affiliate for purpose of changing the legal domicile of such Parent Guarantor or the Co-Issuers, reincorporating such or changing the legal form of such Parent Guarantor or the Co-Issuers in another jurisdiction so long as the amount of Indebtedness of the Parent Guarantor and its Restricted Subsidiaries is not increased thereby, (iii) any consolidation, amalgamation or other combination, merger or transfer does not violate Section 4.11of all or part of the properties and assets of any Restricted Subsidiary to or with any of the Parent Guarantor, the Co-Issuers or Guarantors, (iv) any consolidation, amalgamation or other combination, merger or transfer of all or part of the properties and assets of any Restricted Subsidiary to or with any other Restricted Subsidiary and (v) the Transactions, any Permitted Reorganization, any Permitted Change of Control or IPO Reorganization Transaction.

Merger, Consolidation or Sale of Assets. (a) The Issuer shall not Company will not, directly or indirectly: (1) consolidate, amalgamate consolidate or merge with or into another Person (whether or not it the Company is the surviving corporation); or (2) sell, assign, lease, transfer, convey or otherwise dispose of all or substantially all of its the properties or assets, assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless: (1) either: (aA) the Issuer Company is the surviving corporation; or (bB) the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, lease, transfer, conveyance or other disposition has been made (the “Surviving Person”) is a Person an entity organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that and, if such Surviving Person entity is not a corporation, a Restricted Subsidiary that is a corporation shall become a co-obligor of the Notes pursuant to is a supplemental indenture reasonably satisfactory to the Trusteecorporation organized or existing under any such laws; (2) the Surviving Person formed by or surviving any such consolidation or merger (if other than the IssuerCompany) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Issuer Company under the Notes and Notes, this Indenture and the Parity Lien Security Documents, pursuant to a supplemental indenture agreements reasonably satisfactory to the Trustee; (3) immediately after such transaction, no Default or Event of Default exists;; and (4) the Company or the Person formed by or surviving any of such consolidation or merger (if other than the following is true: (a) Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made would, on the date of 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, the Issuer, or the Surviving Person, would period (i) be permitted to incur at least $1.00 of additional Indebtedness pursuant to Section 4.10(a); (b) the Fixed Charge Coverage Ratio of the Issuer test set forth in Section 4.09(a) hereof; or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same (ii) have had occurred at the beginning of the applicable four-quarter period, would be a Fixed Charge Coverage Ratio greater than or equal to the actual Fixed Charge Coverage Ratio for the Company for such four-quarter period. In addition, the Company will not, directly or indirectly, lease all or substantially all of the Issuer immediately prior properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to such transaction; or (c) the Indebtedness any other Person. This Section 5.01 will not apply to Consolidated Tangible Net Worth Ratio of the Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer immediately prior to such transaction; and (5) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating that such consolidation, merger or amalgamation, or sale, assignment, lease, transfer, conveyance conveyance, lease or other disposition and such supplemental indenture, if any, comply with this Indenture and constitutes the legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms. (b) Sections 5.01(a)(1) through (5) above and Section 5.01(d)(1) shall not apply to: (a) any Restricted Subsidiary of the Issuer merging, amalgamating or consolidating with or into the Issuer or another Restricted Subsidiary; or (b) the transfer of assets between or among the Issuer’s Restricted Subsidiaries, or from any of Company and the Issuer’s Restricted Subsidiaries to the IssuerGuarantors. Sections 5.01(a)(3), Clauses (3) and (4) and (5) above shall of this Section 5.01 will not apply to the sale, assignment, conveyance, transfer, lease (1) any merger or other disposition of all or substantially all consolidation of the assets Company with or into one of the Issuer to its Restricted Subsidiaries for any purpose, (2) with or into an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing the Issuer Company in another state in the United States and/or for the sole purpose of forming jurisdiction or collapsing a holding company structure. (c) The Surviving Person shall succeed to, and be substituted for, and may exercise every right and power of the Issuer under this Indenture. In in the case of a leaseGNET, however, the Issuer shall not be released from any of the obligations with or covenants under this Indenture. (d) Unless the Note Guarantee of the applicable Subsidiary Guarantor is permitted to be released into Xxxxxxx in connection with such transaction as described in Section 4.16 or Section 10.06, such Subsidiary Guarantor may not sell or otherwise dispose the consummation of all or substantially all of its assets to, or consolidate with or amalgamate or merge with or into (whether or not it is the surviving Person) another Person, other than the Issuer or another Subsidiary Guarantor, unless: (1) immediately after giving effect to that transaction, no Default or Event of Default exists; and (2) either: (a) the Person (if other than the Issuer or a Subsidiary Guarantor) acquiring the property in any such sale or disposition or the Person (if other than the Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation or merger assumes all the obligations of that Subsidiary Guarantor, as applicable, under this Indenture and its Note Guarantee pursuant to a supplemental indenture reasonably satisfactory to the Trustee; or (b) such transfer does not violate Section 4.11Merger.

Merger, Consolidation or Sale of Assets. (a) The Issuer shall not may not, directly or indirectly: (1) consolidate, amalgamate consolidate or merge with or into another Person (whether or not it the Issuer is the surviving corporation); or (2) sell, assign, lease, transfer, convey or otherwise dispose of all or substantially all of its the properties or assets, assets of the Issuer and its Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless: (1) either: : (a) the Issuer is the surviving corporation; or or (b) the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the Issuer or the Co-Issuer) or to which such sale, assignment, lease, transfer, conveyance or other disposition has been made (the “Surviving Person”) is a Person corporation or limited liability company organized or existing under the laws of the United States, any state of the United States or States, the District of Columbia; provided that if such Surviving Person is not a corporation, a Restricted Subsidiary that is a corporation shall become a co-obligor of the Notes pursuant to a supplemental indenture reasonably satisfactory to the TrusteeColumbia or any territory thereof; (2) the Surviving Person formed by or surviving any such consolidation or merger (if other than the Issuer or the Co-Issuer) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Issuer under the Notes and Notes, this Indenture and the Registration Rights Agreement pursuant to a supplemental indenture agreements reasonably satisfactory to the Trustee; (3) immediately after such transaction, transaction no Default or Event of Default exists;; and (4) the Issuer or the Person formed by or surviving any of such consolidation or merger (if other than the following is true: (a) Issuer or the Co-Issuer), or to which such sale, assignment, transfer, conveyance or other disposition has been made, will, on the date of such transaction after giving pro forma effect thereto and to any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, the Issuer, or the Surviving Person, would be permitted to incur at least $1.00 of additional Indebtedness pursuant to Section 4.10(a); (b) the Fixed Charge Coverage Ratio of the Issuer or the Surviving Person, after giving pro forma effect Exception. This Section 5.01 will not apply to such transaction and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, would be greater than or equal to the actual Fixed Charge Coverage Ratio of the Issuer immediately prior to such transaction; or (c) the Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer immediately prior to such transaction; and (5) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating that such consolidation, merger or amalgamation, or a sale, assignment, lease, transfer, conveyance or other disposition and such supplemental indenture, if any, comply with this Indenture and constitutes the legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms. (b) Sections 5.01(a)(1) through (5) above and Section 5.01(d)(1) shall not apply to: (a) any Restricted Subsidiary of the Issuer merging, amalgamating or consolidating with or into the Issuer or another Restricted Subsidiary; or (b) the transfer of assets between or among the Issuer’s Issuer and its Restricted Subsidiaries, or from any of . Notwithstanding the Issuer’s Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3foregoing clauses (3) and (4), (4i) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Issuer or to another Restricted Subsidiary and (5ii) above shall not apply to the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the assets of the Issuer to may merge with an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing the Issuer in another state in of the United States and/or for so long as the sole purpose amount of forming Indebtedness of the Issuer and its Restricted Subsidiaries is not increased thereby. In the event of any transaction described in and complying with the conditions listed in the preceding paragraph in which the Issuer is not the continuing corporation, the successor Person formed or collapsing a holding company structure. (c) The Surviving Person remaining shall succeed to, and be substituted for, and may exercise every right and power of the Issuer under this Indenture. In the case of a lease, howeverof, the Issuer shall not be released from any of the obligations or covenants under this Indenture. (d) Unless the Note Guarantee of the applicable Subsidiary Guarantor is permitted to be released in connection with such transaction as described in Section 4.16 or Section 10.06, such Subsidiary Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or amalgamate or merge with or into (whether or not it is the surviving Person) another Person, other than and the Issuer or another Subsidiary Guarantor, unless: (1) immediately after giving effect to that transaction, no Default or Event of Default exists; and (2) either: (a) the Person (if other than the Issuer or a Subsidiary Guarantor) acquiring the property in any such sale or disposition or the Person (if other than the Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation or merger assumes will be discharged from all the obligations of that Subsidiary Guarantor, as applicable, and covenants under this Indenture and its Note Guarantee pursuant to a supplemental indenture reasonably satisfactory to the Trustee; orNotes. (b) such transfer does not violate Section 4.11The Issuer will deliver to the Trustee prior to the consummation of each proposed transaction an Officers’ Certificate certifying that the conditions set forth above are satisfied and an Opinion of Counsel, which opinion may contain customary exceptions and qualifications, that the proposed transaction and the supplemental indenture, if any, comply with this Indenture.

Merger, Consolidation or Sale of Assets. (a) The Neither Issuer shall not directly or indirectly: (1) consolidatewill consolidate with, amalgamate or merge with or into another Person (whether into, or not it is the surviving corporation); or (2) sell, assign, lease, transferconvey, convey transfer or otherwise dispose of (a “transfer”) all or substantially all of its properties assets (as an entirety or assets, taken substantially as a whole, an entirety in one transaction or more a series of related transactions), to another any Person unless: (i) such Issuer shall be the continuing Person, unless: (1) either: (a) the Issuer is the surviving corporation; or (b) or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the such Issuer) formed by such consolidation or into which such Issuer is merged or to which the properties and assets of such sale, assignment, lease, transfer, conveyance Issuer are transferred shall be a corporation or other disposition has been made (the “Surviving Person”) is a Person limited liability company organized or and existing under the laws of the United States, States or any state of the United States State thereof or the District of Columbia; provided that if such Surviving Person is not a corporationColumbia and shall expressly assume, a Restricted Subsidiary that is a corporation shall become a co-obligor of the Notes pursuant to by a supplemental indenture indenture, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee; (2) the Surviving Person (if other than the Issuer) assumes , all of the obligations of the such Issuer under the Notes and Senior Notes, this Indenture pursuant to a supplemental indenture reasonably satisfactory to and the Trustee; Collateral Documents, and the obligations under this Indenture shall remain in full force and effect; (3ii) immediately before and immediately after giving effect to such transaction, no Default or Event of Default exists; shall have occurred and be continuing; (4iii) any of the following is true: (a) on the date of immediately after giving effect to such transaction after giving on a pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, the Issuer, basis Holdings or the Surviving Person, would be permitted to such Person could incur at least $1.00 of additional Indebtedness pursuant to the first paragraph of Section 4.10(a); 4.7 hereof; and (biv) the Fixed Charge Coverage Ratio of immediately thereafter, the Issuer or the Surviving Personother surviving entity, after giving pro forma effect as the case may be, shall have a Consolidated Net Worth equal to such transaction and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, would be or greater than or equal to the actual Fixed Charge Coverage Ratio Consolidated Net Worth of the Issuer immediately prior to such transaction; or. (cb) the Indebtedness to Consolidated Tangible Net Worth Ratio In connection with any consolidation, merger or transfer of assets contemplated by this Section 5.1, the Issuer undergoing such transfer shall deliver or the Surviving Personcause to be delivered, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer immediately prior to such transaction; and (5) the Issuer shall have delivered Trustee, in form and substance reasonably satisfactory to the Trustee Trustee, an Officer’s Officers’ Certificate and an Opinion of Counsel Counsel, each stating that such consolidation, merger or amalgamation, or sale, assignment, lease, transfer, conveyance or other disposition transfer and such the supplemental indenture, if any, indenture in respect thereto comply with this Indenture Section 5.1 and constitutes the legal, valid and binding obligation of the Issuer enforceable against it in accordance with its termsthat all conditions precedent herein provided for relating to such transaction or transactions have been complied with. (bc) Sections 5.01(a)(1) through (5) above and This Section 5.01(d)(1) shall not apply to: (a) any Restricted Subsidiary of the Issuer merging, amalgamating or consolidating with or into the Issuer or another Restricted Subsidiary; or (b) the transfer of assets between or among the Issuer’s Restricted Subsidiaries, or from any of the Issuer’s Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3), (4) and (5) above 5.1 shall not apply to the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all sale of the stock or assets of the Issuer to an Affiliate incorporated Issuers or organized solely for the purpose any Subsidiary of reincorporating or reorganizing the Issuer in another state in the United States and/or for the sole purpose of forming or collapsing a holding company structure. (c) The Surviving Person shall succeed to, and be substituted for, and may exercise every right and power either of the Issuer under this Indenture. In the case of a lease, however, the Issuer shall not be released from any of the obligations or covenants under this IndentureIssuers in accordance with Section 4.10 hereof. (d) Unless the Note Guarantee of the applicable Subsidiary Guarantor is permitted to be released in connection with such transaction as described in Section 4.16 or Section 10.06, such Subsidiary Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or amalgamate or merge with or into (whether or not it is the surviving Person) another Person, other than the Issuer or another Subsidiary Guarantor, unless: (1) immediately after giving effect to that transaction, no Default or Event of Default exists; and (2) either: (a) the Person (if other than the Issuer or a Subsidiary Guarantor) acquiring the property in any such sale or disposition or the Person (if other than the Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation or merger assumes all the obligations of that Subsidiary Guarantor, as applicable, under this Indenture and its Note Guarantee pursuant to a supplemental indenture reasonably satisfactory to the Trustee; or (b) such transfer does not violate Section 4.11.

Merger, Consolidation or Sale of Assets. (a) The Issuer shall not Parent Borrower will not, directly or indirectly: (1) consolidate, amalgamate consolidate or merge with or into another Person (whether or not it the Parent Borrower is the surviving corporation); or (2) sell, assign, lease, transfer, convey or otherwise dispose of all or substantially all of its the properties or assets, assets of the Parent Borrower and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; unless, unlesssubject to Section 9.22: (1i) either: either (aA) the Issuer Parent Borrower is the surviving corporation; or corporation or (bB) the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the IssuerParent Borrower) or to which such sale, assignment, lease, transfer, conveyance or other disposition has been made (the “Surviving Person”) is a Person corporation, partnership or limited liability company organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if such Surviving Person is not a corporation, a Restricted Subsidiary that is a corporation shall become a co-obligor of the Notes pursuant to a supplemental indenture reasonably satisfactory to the Trustee; (2ii) the Surviving Person formed by or surviving any such consolidation or merger (if other than the IssuerParent Borrower) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Issuer Parent Borrower under the Notes and this Indenture Loan Documents pursuant to a supplemental indenture joinder agreements or other documents and agreements reasonably satisfactory to the Trustee;Administrative Agent; US-DOCS\155682452.9 US-DOCS\155682452.9 (3iii) immediately after such transaction, no Default or Event of Default exists;; and (4iv) (A) the Parent Borrower or the Person formed by or surviving any of such consolidation or merger (if other than the following is true: (a) Parent Borrower), or to which such sale, assignment, transfer, conveyance or other disposition has been made will, on the date of such transaction after giving pro forma effect thereto and to any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, the Issuer, or the Surviving Person, would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the provisions of Section 4.10(a); 6.01(a) or (bB) the Fixed Charge Coverage Ratio of the Issuer Parent Borrower or the Surviving Person, Person formed by or surviving any such consolidation or merger (if other than the Parent Borrower) is greater after giving pro forma effect to such transaction consolidation or merger and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, would be greater period than or equal to the Parent Borrower’s actual Fixed Charge Coverage Ratio of for the Issuer immediately prior to such transaction; or (c) the Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer immediately prior to such transaction; and (5) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating that such consolidation, merger or amalgamation, or sale, assignment, lease, transfer, conveyance or other disposition and such supplemental indenture, if any, comply with this Indenture and constitutes the legal, valid and binding obligation of the Issuer enforceable against it in accordance with its termsperiod. (b) Sections 5.01(a)(1In addition, the Parent Borrower 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. (c) through (5) above and This Section 5.01(d)(1) 6.08 shall not apply to: to (ai) a merger of the Parent Borrower with an Affiliate solely for the purpose of reincorporating the Parent Borrower in another jurisdiction or forming a direct holding company of the Parent Borrower; and (ii) any Restricted Subsidiary of the Issuer mergingsale, amalgamating transfer, assignment, conveyance, lease or consolidating with or into the Issuer or another Restricted Subsidiary; or (b) the transfer other disposition of assets between or among the Issuer’s Parent Borrower and its Restricted Subsidiaries, including by way of merger or from consolidation. (d) Upon any of the Issuer’s Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3)consolidation or merger, (4) and (5) above shall not apply to the or any sale, assignment, conveyance, transfer, lease lease, conveyance or other disposition of all or substantially all of the assets of the Issuer Parent Borrower and its Restricted Subsidiaries taken as a whole in a transaction that is subject to, and that complies with the provisions of, Sections 6.08(a) through and including 6.08(d), the successor corporation formed by such consolidation or into or with which the Parent Borrower is merged or to an Affiliate incorporated which such sale, assignment, transfer, lease, conveyance or organized solely for the purpose of reincorporating or reorganizing the Issuer in another state in the United States and/or for the sole purpose of forming or collapsing a holding company structure. (c) The Surviving Person other disposition is made shall succeed to, and be substituted forfor (so that from and after the date of such consolidation, merger, sale, lease, conveyance or other disposition, the provisions of this Agreement and the other Loan Documents referring to the “Parent Borrower” shall refer instead to the successor corporation and not to the Parent Borrower), and may exercise every right and power of the Issuer Parent Borrower under this Indenture. In Agreement and the other Loan Documents with the same effect as if such successor Person had been named as the Parent Borrower herein; provided, however, that the predecessor Parent Borrower shall not be relieved from its payment obligations hereunder except in the case of a lease, however, the Issuer shall not be released from any sale of all of the obligations or covenants under this IndentureParent Borrower’s assets in a transaction that is subject to, and that complies with the provisions of, Section 6.08(a) through and including 6.08(d). (de) Unless A Borrower (other than the Note Guarantee of the applicable Subsidiary Guarantor is permitted to be released in connection with such transaction as described in Section 4.16 Parent Borrower) will not, directly or Section 10.06indirectly, such Subsidiary Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or amalgamate or merge with or into another Person (whether or not it other than the Parent Borrower), unless either (A) such Borrower is the surviving Person) another Person, other than the Issuer Person or another Subsidiary Guarantor, unless: (1) immediately after giving effect to that transaction, no Default or Event of Default exists; and (2) either: (aB) the Person (if other than the Issuer or a Subsidiary Guarantor) acquiring the property in any such sale or disposition or the Person (if other than the Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation or merger assumes all the obligations of that Subsidiary Guarantor, as applicable, under this Indenture and its Note Guarantee pursuant to is a supplemental indenture reasonably satisfactory to the Trustee; or (b) such transfer does not violate Section 4.11Loan Party.

Merger, Consolidation or Sale of Assets. (a) The Issuer shall not Neither of the Issuers may, directly or indirectly: (1x) consolidate, amalgamate consolidate or merge with or into another Person (whether or not it such Issuer is the surviving corporationsurvivor); or (2y) sell, assign, transfer, lease, transfer, convey or otherwise dispose of all or substantially all of its properties or assets, taken as a whole, in one or more related transactions, to another Person, ; unless: (1i) either: : (aA) the such Issuer is the surviving corporationentity; or or (bB) the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the such Issuer) or to which such sale, assignment, transfer, lease, transfer, conveyance or other disposition has shall have been made (the “Surviving Person”) is a Person an entity organized or existing under the laws of the United States, any state of the United States thereof or the District of Columbia; Columbia (provided that if such Surviving Person is El Paso Finance may not a corporation, a Restricted Subsidiary that is consolidate or merge with or into any entity other than a corporation shall become satisfying such requirement for so long as the Partnership remains a co-obligor of the Notes pursuant to a supplemental indenture reasonably satisfactory to the Trusteepartnership); (2ii) the Surviving Person formed by or surviving any such consolidation or merger (if other than the such Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made expressly assumes all the obligations of the such Issuer under the Notes and this Indenture pursuant to a supplemental indenture agreements reasonably satisfactory to the Trustee; (3iii) immediately after such transaction, transaction no Default or Event of Default exists; (4iv) such Issuer or the Person formed by or surviving any of the following is true:such consolidation or merger (if other than such Issuer): (aA) shall have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of such Issuer immediately preceding the transaction; and (B) shall, on the date of 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, the Issuer, or the Surviving Person, would be permitted to incur at least $1.00 of additional Indebtedness pursuant to Section 4.10(a); (b) the Fixed Charge Coverage Ratio of test set forth in Section 4.09(a); provided, however, that this clause (B) shall be suspended during any period in which the Issuer or Partnership and the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, would be greater than or equal Restricted Subsidiaries are not subject to the actual Fixed Charge Coverage Ratio of the Issuer immediately prior to such transaction; or (c) the Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer immediately prior to such transactionSuspended Covenants; and (5C) the Issuer shall have has delivered to the Trustee an Officer’s Officers' Certificate and an Opinion of Counsel Counsel, each stating that such consolidation, merger or amalgamationtransfer and, if a supplemental indenture is required, such supplemental indenture comply with this Indenture and all conditions precedent therein relating to such transaction have been satisfied. (b) Notwithstanding Section 5.01(a), the Partnership is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that: (i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Partnership into a form of entity other than a limited partnership formed under Delaware law; (ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia; (iii) the entity so formed by or resulting from such reorganization assumes all of the obligations of the Partnership under the Notes and this Indenture pursuant to agreements reasonably satisfactory to the Trustee; (iv) immediately after such reorganization no Default or Event of Default exists; and (v) such reorganization is not adverse to the Holders of the Notes (for purposes of this clause (v) it is stipulated that such reorganization shall not be considered adverse to the Holders of the Notes solely because the successor or survivor of such reorganization (1) is subject to federal or state income taxation as an entity or (2) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law). (c) Section 5.01(a) shall not apply to a merger or consolidation or any sale, assignment, transfer, lease, transfer, conveyance or other disposition and such supplemental indenture, if any, comply with this Indenture and constitutes the legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms. (b) Sections 5.01(a)(1) through (5) above and Section 5.01(d)(1) shall not apply to: (a) any Restricted Subsidiary of the Issuer merging, amalgamating or consolidating with or into the Issuer or another Restricted Subsidiary; or (b) the transfer of assets between or among the Issuer’s Partnership and any of its Restricted Subsidiaries. (d) No Subsidiary Guarantor may consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, whether or from not affiliated with such Subsidiary Guarantor, but excluding the Partnership or another Subsidiary Guarantor, unless (i) subject to the provisions of Section 5.01(e), the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantor's Guarantee of the Issuer’s Restricted Subsidiaries Notes and the Indenture pursuant to the Issuer. Sections 5.01(a)(3), (4) a supplemental indenture and (5ii) above shall not apply immediately after giving effect to such transaction, no Default or Event of Default exists. Any Subsidiary Guarantor may be merged or consolidated with or into any one or more Subsidiary Guarantors. 76 (e) In the sale, assignment, conveyance, transfer, lease event of a sale or other disposition of all or substantially all of the assets of the Issuer to an Affiliate incorporated any Subsidiary Guarantor, by way of merger, consolidation or organized solely for the purpose of reincorporating otherwise, or reorganizing the Issuer in another state in the United States and/or for the sole purpose of forming a sale or collapsing a holding company structure. (c) The Surviving Person shall succeed to, and be substituted for, and may exercise every right and power of the Issuer under this Indenture. In the case of a lease, however, the Issuer shall not be released from any of the obligations or covenants under this Indenture. (d) Unless the Note Guarantee of the applicable Subsidiary Guarantor is permitted to be released in connection with such transaction as described in Section 4.16 or Section 10.06, such Subsidiary Guarantor may not sell or otherwise dispose other disposition of all or substantially all of its assets to, or consolidate with or amalgamate or merge with or into (whether or not it is the surviving Person) another Person, other than the Issuer or another Equity Interests of any Subsidiary Guarantor, unless: then such Subsidiary Guarantor (1) immediately after giving effect to that transactionin the event of a sale or other disposition, no Default by way of such a merger, consolidation or Event otherwise, of Default exists; and (2) either: (a) all of the Person (if other than the Issuer or a Equity Interests of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all or substantially all of the assets of such Subsidiary Guarantor) will be released and relieved of any obligations under its Guarantee; provided that the Partnership applies the Net Proceeds of such sale or other disposition or in accordance with the Person (if other than the Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation or merger assumes all the obligations of that Subsidiary Guarantor, as applicable, provisions set forth under this Indenture Sections 3.09 and its Note Guarantee pursuant to a supplemental indenture reasonably satisfactory to the Trustee; or (b) such transfer does not violate Section 4.114.07.

Merger, Consolidation or Sale of Assets. (a) The Issuer shall not directly or indirectlyTransMontaigne Partners may not: (1) consolidate, amalgamate consolidate or merge with or into another Person (whether or not it TransMontaigne Partners is the surviving corporationentity); or (2) directly or indirectly sell, assign, transfer, lease, transfer, convey or otherwise dispose of all or substantially all of its the properties or assetsassets of TransMontaigne Partners and the Restricted Subsidiaries, taken as a whole, in one or more related transactions, to another Person, unless: (1) either: (aA) the Issuer TransMontaigne Partners is the surviving corporationentity; or (bB) the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the IssuerTransMontaigne Partners) or to which such sale, assignment, lease, transfer, conveyance or other disposition has been made (the “Surviving Person”) is a Person organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if such Surviving Person is not a corporation, a Restricted Subsidiary that is a corporation shall become a co-obligor of the Notes pursuant to a supplemental indenture reasonably satisfactory to the Trustee; (2) the Surviving Person formed by or surviving any such consolidation or merger (if other than TransMontaigne Partners) or the Issuer) Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made assumes all the obligations of the Issuer TransMontaigne Partners under the Notes and this Indenture pursuant to a supplemental indenture agreements reasonably satisfactory to the Trustee; (3) immediately after such transaction, no Default or Event of Default exists; (4) TransMontaigne Partners or the Person formed by or surviving any of the following is truesuch consolidation or merger (if other than TransMontaigne Partners), or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made, will: (aA) on the date of such transaction after giving pro forma effect Pro Forma Effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter periodReference Period, the Issuer, or the Surviving Person, would be permitted to incur at least $1.00 of additional Indebtedness pursuant to Section 4.10(a);Ratio Debt; or (bB) the have a Fixed Charge Coverage Ratio Ratio, on the date of the Issuer or the Surviving Person, such transaction and after giving pro forma effect to such transaction Pro Forma Effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter periodReference Period, would be greater not less than or equal to the actual Fixed Charge Coverage Ratio of the Issuer immediately prior to such transaction; or (c) the Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer TransMontaigne Partners immediately prior to such transaction; and (5) the Issuer shall have TransMontaigne Partners has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel Counsel, each stating that such consolidation, merger or amalgamation, or sale, assignment, lease, transfer, conveyance or other disposition and such supplemental indenture, indenture (if any, ) comply with this Indenture and constitutes the legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms. (b) Sections 5.01(a)(1) through (5) above and all conditions precedent therein relating to such transaction have been satisfied. This Section 5.01(d)(1) shall not apply to: (a) any Restricted Subsidiary of the Issuer merging, amalgamating or consolidating with or into the Issuer or another Restricted Subsidiary; or (b) the transfer of assets between or among the Issuer’s Restricted Subsidiaries, or from any of the Issuer’s Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3), (4) and (5) above shall 5.01 will not apply to the any sale, assignment, transfer, conveyance, transfer, lease or other disposition of all assets between or substantially all among TransMontaigne Partners and its Restricted Subsidiaries, and Sections 5.01(a)(3) and (4) will not apply to any merger or consolidation of the assets TransMontaigne Partners (A) with or into one of the Issuer to its Restricted Subsidiaries for any purpose or (B) with or into an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing the Issuer TransMontaigne Partners in another state in jurisdiction under the law of the United States and/or for or any state thereof or the sole purpose District of forming or collapsing a holding company structureColumbia. (cb) The Surviving Person shall succeed toNotwithstanding Section 5.01(a), and TransMontaigne Partners will be substituted for, and may exercise every right and power permitted to reorganize as any other form of entity in accordance with the Issuer under procedures established in this Indenture. In the case of a lease, however, the Issuer shall not be released from any of the obligations or covenants under this Indenture. (d) Unless the Note Guarantee of the applicable Subsidiary Guarantor is permitted to be released in connection with such transaction as described in Section 4.16 or Section 10.06, such Subsidiary Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or amalgamate or merge with or into (whether or not it is the surviving Person) another Person, other than the Issuer or another Subsidiary Guarantor, unless; provided that: (1) immediately after giving effect to that transactionthe reorganization involves the conversion (by merger, no Default sale, contribution or Event exchange of Default exists; andassets or otherwise) of TransMontaigne Partners into a form of entity other than a limited partnership formed under Delaware law; (2) either: (a) the Person (if other than the Issuer or a Subsidiary Guarantor) acquiring the property in any such sale or disposition or the Person (if other than the Issuer or a Subsidiary Guarantor) entity so formed by or surviving resulting from such reorganization is an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia; (3) the entity so formed by or resulting from such consolidation or amalgamation or merger reorganization assumes all the obligations of that Subsidiary Guarantor, as applicable, TransMontaigne Partners under the Notes and this Indenture and its Note Guarantee pursuant to a supplemental indenture agreements reasonably satisfactory to the Trustee; orand (b4) immediately after such transfer does not violate Section 4.11reorganization no Event of Default exists.

Merger, Consolidation or Sale of Assets. (a) The Issuer shall not not, directly or indirectly: (1A) consolidate, amalgamate consolidate or merge with or into another Person (whether or not it the Issuer is the surviving corporationPerson); or (2B) sell, lease, assign, lease, transfer, convey or otherwise dispose of all or substantially all of its the properties or assetsassets of the Issuer and its Restricted Subsidiaries, taken as a whole, in one or more related transactions, to another Person, unless: (1i) either: : (aA) the Issuer is the surviving corporationPerson; or or (bB) the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the Issuer) or to which such sale, assignment, leasetransfer, conveyance or other disposition has been made, is a Person organized or existing under the laws of Peru; (ii) the Person formed by or surviving any such consolidation or merger (if other than the Issuer, the “Successor Issuer”) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made (the “Surviving Person”) is a Person organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if such Surviving Person is not a corporation, a Restricted Subsidiary that is a corporation shall become a co-obligor of the Notes pursuant to a supplemental indenture reasonably satisfactory to the Trustee; (2) the Surviving Person (if other than the Issuer) assumes all the obligations of the Issuer under the Notes and this Indenture pursuant to a supplemental indenture reasonably satisfactory to the Trusteeindenture; (3iii) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Issuer or any Subsidiary of the Successor Issuer as a result of such transaction as having been incurred by the Successor Issuer or such Subsidiary at the time of such transaction), no Default or Event of Default existsshall have occurred and be continuing; (4iv) any of the following is true: (a) on the date of immediately after giving effect to such transaction after giving on a pro forma effect thereto basis and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter periodfour fiscal quarters, either: (1) the Issuer, Issuer or the Surviving PersonSuccessor Issuer would, would on the date of such transaction, be permitted to incur at least $1.00 U.S.$1.00 of additional Indebtedness pursuant to both the Consolidated Debt to EBITDA Ratio and the Fixed Charge Coverage Ratio tests set forth in the first paragraph of Section 4.10(a4.1(c);; or (b2) (A) the Fixed Charge Coverage Ratio of for the Successor Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, its Restricted Subsidiaries would be greater than or equal to the actual Fixed Charge Coverage Ratio of such ratio for the Issuer and its Restricted Subsidiaries immediately prior to such transaction; or , and (cB) the Indebtedness Consolidated Debt to Consolidated Tangible Net Worth EBITDA Ratio of for the Successor Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, its Restricted Subsidiaries would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of such ratio for the Issuer and its Restricted Subsidiaries immediately prior to such transaction; and; (5v) the Issuer shall have delivered to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel Counsel, each stating that such consolidation, merger or amalgamation, or sale, assignment, lease, transfer, conveyance or other disposition transfer and such supplemental indenture, if any, comply with this Indenture; and (vi) each Subsidiary Guarantor (unless it is the other party to the transactions above, in which case clause (i) of this paragraph shall apply), if any, shall have by supplemental indenture confirmed that its Note Guarantee shall apply to such Person’s obligations in respect of this Indenture and constitutes the legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms. (b) Sections 5.01(a)(1) through (5) above and Notes. This Section 5.01(d)(1) 4.3 shall not apply to: (a) to any consolidation or merger, or any sale, assignment, transfer, conveyance, lease or other disposition of assets from a Restricted Subsidiary of the Issuer merging, amalgamating or consolidating with or into the Issuer or another Restricted Subsidiary; or (b) the transfer of assets between or among the Issuer’s Restricted Subsidiaries, or from any of the Issuer’s Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3)For purposes of this Section 4.3, (4) and (5) above shall not apply to the sale, assignmentlease, conveyance, transferassignment, lease transfer or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Issuer, which properties and assets, if held by the Issuer instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Issuer on a consolidated basis, shall be deemed to an Affiliate incorporated be the transfer of all or organized solely for substantially all of the purpose properties and assets of reincorporating or reorganizing the Issuer. The Successor Issuer in another state in the United States and/or for the sole purpose of forming or collapsing a holding company structure. (c) The Surviving Person shall succeed to, and be substituted for, and may exercise every right and power of of, the Issuer under this Indenture. In , but, in the case of a lease, howeverlease of all or substantially all its assets, the predecessor Issuer shall not be released from any the obligation to pay the principal of and interest on the obligations or covenants under this IndentureNotes. (d) Unless the Note Guarantee of the applicable Subsidiary Guarantor is permitted to be released in connection with such transaction as described in Section 4.16 or Section 10.06, such Subsidiary Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or amalgamate or merge with or into (whether or not it is the surviving Person) another Person, other than the Issuer or another Subsidiary Guarantor, unless: (1) immediately after giving effect to that transaction, no Default or Event of Default exists; and (2) either: (a) the Person (if other than the Issuer or a Subsidiary Guarantor) acquiring the property in any such sale or disposition or the Person (if other than the Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation or merger assumes all the obligations of that Subsidiary Guarantor, as applicable, under this Indenture and its Note Guarantee pursuant to a supplemental indenture reasonably satisfactory to the Trustee; or (b) such transfer does not violate Section 4.11.

Merger, Consolidation or Sale of Assets. ‌ (a) The Issuer Company shall not directly or indirectlynot: (1i) consolidate, amalgamate consolidate or merge with or into another Person (whether or not it the Company is the surviving corporation); , or (2ii) sell, assign, lease, transfer, convey convey, lease or otherwise dispose of all or substantially all of its the properties or assets, taken as a wholeand assets of the Company, in one or more related transactions, to another Person, unlessunless at the time and after giving effect thereto: (1) either: : (aA) the Issuer Company is the surviving corporation; or or (bB) the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, lease, transfer, conveyance or other disposition has will have been made (the “Surviving PersonEntity”) (x) is a Person corporation organized or existing under the laws of the United States, any state of the United States thereof or the District of Columbia; provided that if such Surviving Person is not a corporationColumbia and (y) assumes, a Restricted Subsidiary that is a corporation shall become a co-obligor by supplemental indenture, all the obligations of the Notes pursuant to a supplemental indenture reasonably satisfactory to Company under the TrusteeNotes, this Indenture and the Collateral Documents; (2) the Surviving Person immediately after giving effect to such transaction on a pro forma basis (if other than the Issuer) assumes all the obligations and treating any Indebtedness not previously an obligation of the Issuer under Company or any of its Restricted Subsidiaries which becomes the Notes and this Indenture pursuant to obligation of the Company or any of its Restricted Subsidiaries as a supplemental indenture reasonably satisfactory to result of such transaction as having been incurred at the Trustee; (3) immediately after time of such transaction), no Default or Event of Default exists; (43) any of the following is true: (a) on the date of such transaction immediately after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-four- quarter period, (A) the Issuer, Company or the Surviving PersonEntity (if other than the Company) would, would on the date of such transaction, be permitted to incur Incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Coverage Ratio test set forth in Section 4.10(a4.08(a), or (B) the Consolidated Coverage Ratio would not be lower than it was immediately prior to giving effect to such transaction; (b4) each Guarantor, unless such Guarantor is the Fixed Charge Coverage Ratio Person with which the Company has entered into a transaction under this Section 5.01, will have confirmed in writing that its Note Guarantee will continue to apply to the obligations of the Issuer Company or the Surviving Person, after giving pro forma effect to such transaction Entity in accordance with the Notes and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, would be greater than or equal to the actual Fixed Charge Coverage Ratio of the Issuer immediately prior to such transaction; or (c) the Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer immediately prior to such transactionthis Indenture; and (5) the Issuer shall have delivered prior to the Trustee execution of any supplemental indenture pursuant to this Article V, the Company delivers to the Trustee, in addition to the documents required by Section 9.05, an Officer’s Certificate and an Opinion of Counsel each stating that such consolidation, merger or amalgamation, or sale, assignment, lease, transfer, conveyance or other disposition transaction and such supplemental indenture, if any, indenture comply with this Indenture Indenture, including this Section 5.01 and constitutes the legal, valid that all conditions precedent provided for herein relating to such transaction and binding obligation of the Issuer enforceable against it in accordance with its termsany such assumption have been complied with. (b) Sections 5.01(a)(1) through No Guarantor may (5) above and Section 5.01(d)(1) shall not apply to: (a) other than any Restricted Subsidiary of the Issuer merging, amalgamating or consolidating with or into the Issuer or another Restricted Subsidiary; or (b) the transfer of assets between or among the Issuer’s Restricted Subsidiaries, or from any of the Issuer’s Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3), (4) and (5) above shall not apply to the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the assets of the Issuer to an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing the Issuer in another state in the United States and/or for the sole purpose of forming or collapsing a holding company structure. (c) The Surviving Person shall succeed to, and be substituted for, and may exercise every right and power of the Issuer under this Indenture. In the case of a lease, however, the Issuer shall not be released from any of the obligations or covenants under this Indenture. (d) Unless the Guarantor whose Note Guarantee of the applicable Subsidiary Guarantor is permitted to be released in connection accordance with the terms of this Indenture in a transaction not prohibited by Section 4.09 and Section 12.04) (i) consolidate or merge with or into another Person (whether or not such transaction as described in Section 4.16 Guarantor is the surviving Person), or Section 10.06(ii) sell, such Subsidiary Guarantor may not sell assign, transfer, convey, lease or otherwise dispose of all or substantially all of its the properties and assets to, or consolidate with or amalgamate or merge with or into (whether or not it is of the surviving Person) another Person, other than the Issuer or another Subsidiary Guarantor, in one or more related transactions to another Person unless: (1) immediately after giving effect to the other Person is the Company or any Restricted Subsidiary that is a Guarantor or that becomes a Guarantor concurrently with the transaction, no Default or Event of Default exists; andor (2) either: (aA) the Person (if other than the Issuer or a Subsidiary Guarantor) acquiring the property in any such sale or disposition or the Person (if other than the Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation merger (if other than the Guarantor) or merger assumes all to which such sale, lease, conveyance or other disposition shall have been made is a corporation organized and existing under the obligations laws of that Subsidiary Guarantor, as applicable, under this Indenture and its Note Guarantee pursuant to a supplemental indenture reasonably satisfactory to the Trustee; or (b) such transfer does not violate Section 4.11.United States or any state thereof or the District of Columbia;

Merger, Consolidation or Sale of Assets. i. In the event that the Company shall be a party to any transaction (aincluding without limitation (i) The Issuer shall not directly any recapitalization or indirectly: reclassification of the Common Stock (1) consolidate, amalgamate or merge with or into another Person (whether or not it is the surviving corporation); or (2) sell, assign, lease, transfer, convey or otherwise dispose of all or substantially all of its properties or assets, taken as a whole, in one or more related transactions, to another Person, unless: (1) either: (a) the Issuer is the surviving corporation; or (b) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issuer) or to which such sale, assignment, lease, transfer, conveyance or other disposition has been made (the “Surviving Person”) is a Person organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if such Surviving Person is not a corporation, a Restricted Subsidiary that is a corporation shall become a co-obligor of the Notes pursuant to a supplemental indenture reasonably satisfactory to the Trustee; (2) the Surviving Person (if other than the Issuer) assumes all the obligations of the Issuer under the Notes and this Indenture pursuant to a supplemental indenture reasonably satisfactory to the Trustee; (3) immediately after such transaction, no Default or Event of Default exists; (4) any of the following is true: (a) on the date of 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, the Issuer, or the Surviving Person, would be permitted to incur at least $1.00 of additional Indebtedness pursuant to Section 4.10(a); (b) the Fixed Charge Coverage Ratio of the Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, would be greater than or equal to the actual Fixed Charge Coverage Ratio of the Issuer immediately prior to such transaction; or (c) the Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer immediately prior to such transaction; and (5) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating that such consolidation, merger or amalgamation, or sale, assignment, lease, transfer, conveyance or other disposition and such supplemental indenture, if any, comply with this Indenture and constitutes the legal, valid and binding obligation of the Issuer enforceable against it change in accordance with its terms. (b) Sections 5.01(a)(1) through (5) above and Section 5.01(d)(1) shall not apply to: (a) any Restricted Subsidiary of the Issuer merging, amalgamating or consolidating with or into the Issuer or another Restricted Subsidiary; or (b) the transfer of assets between or among the Issuer’s Restricted Subsidiariespar value, or from any par value to no par value, or from no par value to par value, or as a result of a subdivision or combination of the Issuer’s Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3Common Stock), (4ii) and any consolidation of the Company with, or merger of the Company into, any other Person, any merger of another Person into the Company (5other than a merger which does not result in a reclassification, conversion, exchange or cancellation of outstanding shares of Common Stock of the Company), (iii) above shall not apply to the sale, assignment, conveyance, transfer, lease any sale or other disposition transfer of all or substantially all of the assets of the Issuer Company or (iv) any compulsory share exchange) pursuant to an Affiliate incorporated which either shares of Common Stock shall be converted into the right to receive other securities, cash or organized solely for the purpose of reincorporating or reorganizing the Issuer other property, or, in another state in the United States and/or for the sole purpose of forming or collapsing a holding company structure. (c) The Surviving Person shall succeed to, and be substituted for, and may exercise every right and power of the Issuer under this Indenture. In the case of a lease, however, the Issuer shall not be released from any of the obligations sale or covenants under this Indenture. (d) Unless the Note Guarantee of the applicable Subsidiary Guarantor is permitted to be released in connection with such transaction as described in Section 4.16 or Section 10.06, such Subsidiary Guarantor may not sell or otherwise dispose transfer of all or substantially all of its the assets toof the Company, the holders of Common Stock shall be entitled to receive other securities, cash or consolidate with or amalgamate or merge with or into (whether or not it is other property, then lawful provision shall be made as part of the surviving Person) another Person, other than terms of such transaction whereby the Issuer or another Subsidiary Guarantor, unlessHolder of each Convertible Debenture then outstanding shall have the right thereafter to convert such Convertible Debenture only into: (1) in the case of any such transaction that does not constitute a Common Stock Fundamental Change and subject to funds being legally available for such purpose under applicable law at the time of such conversion, the kind and amount of the securities, cash or other property that would have been receivable upon such recapitalization, reclassification, consolidation, merger, sale, transfer or share exchange by a holder of the number of shares of Common Stock issuable upon conversion of such Convertible Debenture immediately prior to such recapitalization, reclassification, consolidation, merger, sale, transfer or share exchange, after giving effect effect, in the case of any Non-Stock Fundamental Change, to that transaction, no Default or Event any adjustment in the Conversion Price in accordance with clause (i) of Default existssubsection (c) of this Section 6.4; and (2) eitherin the case of any such transaction that constitutes a Common Stock Fundamental Change, common stock of the kind received by holders of Common Stock as a result of such Common Stock Fundamental Change in an amount determined in accordance with clause (ii) of subsection (c) of this Section 6.4. ii. The company or the Person formed by such consolidation or resulting from such merger or which acquired such assets or which acquires the Companys shares, as the case may be, shall make provision in its certificate or articles of incorporation or other constituent document to establish such right. Such certificate or articles of incorporation or other constituent document shall provide for adjustments which, for events subsequent to the effective date of such certificate or articles of incorporation or other constituent document, shall be as nearly equivalent as may be practicable to the adjustments provided for in this Article VI. The above provisions shall similarly apply to successive transactions of the foregoing type. iii. Notwithstanding any other provision of this Section 6.4 to the contrary, if any Fundamental Change occurs, then the Conversion Price in effect will be adjusted immediately after such Fundamental Change as follows: (a1) in the case of a Non-Stock Fundamental Change, the Conversion Price of the Convertible Debentures immediately following such Non-Stock Fundamental Change shall be the lower of (A) the Person (if Conversion Price in effect immediately prior to such Non- Stock Fundamental Change, but after giving effect to any other than the Issuer or a Subsidiary Guarantor) acquiring the property in any such sale or disposition or the Person (if other than the Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation or merger assumes all the obligations of that Subsidiary Guarantor, as applicable, under this Indenture and its Note Guarantee prior adjustments effected pursuant to Section 6.3, and (B) the product of (1) the greater of the Applicable Price and the then applicable Reference Market Price and (2) a supplemental indenture reasonably satisfactory to fraction, the Trusteenumerator of which is $50 and the denominator of which is (x) the amount of the Optional Redemption Price set forth in Section 3.2 for $50 in principal amount of Convertible Debentures if the redemption date were the date of such Non-Stock Fundamental Change (or, for the twelve-month periods commencing December 18, 1996, December 18, 1997 and December 18, 1998, the product of 105.750%, 105.175% and 104.600%, respectively, times $50) plus (y) any then-accrued and unpaid interest on $50 principal amount of Convertible Debentures; orand (b2) in the case of a Common Stock Fundamental Change, the Conversion Price of the Convertible Debentures immediately following such transfer does not violate Common Stock Fundamental Change shall be the Conversion Price in effect immediately prior to such Common Stock Fundamental Change, but after giving effect to any other prior adjustments effected pursuant to Section 4.116.3, multiplied by a fraction, the numerator of which is the Purchaser Stock Price and the denominator of which is the Applicable Price; provided, however, that in the event of a Common Stock Fundamental Change in which (A) 100% of the value of the consideration received by a holder of Common Stock is common stock of the successor, acquiror or other third party (and cash, if any, paid with respect to any fractional interests in such common stock resulting from such Common Stock Fundamental Change) and (B) all of the Common Stock shall have been exchanged for, converted into or acquired for, common stock of the successor, acquiror or other third party (and any cash with respect to fractional interests), the Conversion Price of the Convertible Debentures immediately following such Common Stock Fundamental Change shall be the Conversion Price in effect immediately prior to such Common Stock Fundamental Change multiplied by a fraction, the numerator of which is one (1) and the denominator of which is the number of shares of common stock of the successor, acquiror or other third party received by a holder of one share of Common Stock as a result of such Common Stock Fundamental Change.

Merger, Consolidation or Sale of Assets. (a) The Issuer Company shall not not, directly or indirectly: (1) consolidate, amalgamate consolidate or merge with or into another Person or consummate a Division as the Dividing Person (whether or not it the Company is the surviving corporationcorporation or Division Successor, as applicable); or (2) sell, assign, lease, transfer, convey or otherwise dispose of all or substantially all of its the properties or assets, assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless: (1) either: : (a) in the Issuer case of a Division where the Company is the Dividing Person, either all Division Successors shall become co-issuers of the Notes or the Division, as to any Division Successor that will not be a co-issuer, is permitted by Section 4.10 or (b) in the case of any consolidation or merger either (i) the Company is the surviving corporation; or or (bii) the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the IssuerCompany) or to which such sale, assignment, lease, transfer, conveyance or other disposition has been made (the “Surviving PersonEntity”) is a Person corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if such Surviving Person is not a corporation, a Restricted Subsidiary that is a corporation shall become a co-obligor of the Notes pursuant to a supplemental indenture reasonably satisfactory to the Trustee; (2) the Surviving Person (if other than the Issuer) Entity or Division Successor, as applicable expressly assumes all the obligations of the Issuer Company under the Notes and this Indenture pursuant to a supplemental indenture reasonably satisfactory to the Trustee; (3) immediately after such transaction, no Default or Event of Default existsshall have occurred and be continuing; (4) any of the following is true: (a) Company or the Surviving Entity or Division Successor, as applicable would, on the date of 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, the Issuer, or the Surviving Person, would either (A) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.10(a); 4.09(a) or (bB) have a Fixed Charge Coverage Ratio of not less than the Fixed Charge Coverage Ratio of the Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, would be greater than or equal to the actual Fixed Charge Coverage Ratio of the Issuer Company immediately prior to such transaction; or (c) the Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer merger, sale, assignment, transfer, lease, conveyance or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer immediately prior to such transactionother disposition; and (5) the Issuer shall have Company or the Surviving Entity or Division Successor, as applicable has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel Counsel, each stating that such consolidation, merger or amalgamationmerger, or sale, assignment, lease, transfer, conveyance conveyance, lease or other disposition and such supplemental indenture, if any, comply with this Indenture and constitutes as evidence of the legalsatisfaction of the conditions precedent set forth in this Section 5.01, valid in which event it will be conclusive and binding obligation on the Holders. In addition, the Company will not, directly or indirectly, lease all or substantially all of the Issuer enforceable against it properties and assets of the Company and its Restricted Subsidiaries taken as a whole, in accordance with its termsone or more related transactions, to any other Person. (b) Sections 5.01(a)(1) through (5) above and Section 5.01(d)(1) shall 5.01 will not apply to: : (a1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction within the United States of America; or (2) any Restricted Subsidiary of the Issuer mergingconsolidation or merger, amalgamating or consolidating with any sale, assignment, transfer, conveyance, lease or into the Issuer or another Restricted Subsidiary; or (b) the transfer other disposition of assets between or among the Issuer’s Company and its Restricted Subsidiaries, or from any of the Issuer’s Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3), (4) and (5) above shall not apply to the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the assets of the Issuer to an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing the Issuer in another state in the United States and/or for the sole purpose of forming or collapsing a holding company structure. (c) The Surviving Person shall succeed to, and be substituted for, and may exercise every right and power of the Issuer under this Indenture. In the case of a lease, however, the Issuer shall not be released from any of the obligations or covenants under this Indenture. (d) Unless the Note Guarantee of the applicable Subsidiary Guarantor is permitted to be released in connection with such transaction as described in Section 4.16 or Section 10.06, such Subsidiary Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or amalgamate or merge with or into (whether or not it is the surviving Person) another Person, other than the Issuer or another Subsidiary Guarantor, unless: (1) immediately after giving effect to that transaction, no Default or Event of Default exists; and (2) either: (a) the Person (if other than the Issuer or a Subsidiary Guarantor) acquiring the property in any such sale or disposition or the Person (if other than the Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation or merger assumes all the obligations of that Subsidiary Guarantor, as applicable, under this Indenture and its Note Guarantee pursuant to a supplemental indenture reasonably satisfactory to the Trustee; or (b) such transfer does not violate Section 4.11.

Merger, Consolidation or Sale of Assets. (a) The Issuer shall not will not, directly or indirectly: (1) consolidate, amalgamate consolidate or merge with or into another Person (whether or not it the Issuer is the surviving corporation); or (2) sell, assign, lease, transfer, convey or otherwise dispose of all or substantially all of its the properties or assets, assets of the Issuer and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless: (1) either: : (a) the Issuer is the surviving corporation; or or (b) the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the Issuer) or to which such sale, assignment, lease, transfer, conveyance or other disposition has been made (the “Surviving PersonEntity”) is a Person corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if such Surviving Person is not a corporation, a Restricted Subsidiary that is a corporation shall become a co-obligor of the Notes pursuant to a supplemental indenture reasonably satisfactory to the Trustee; (2) the Surviving Person (if other than the Issuer) Entity expressly assumes all the obligations of the Issuer under the Notes and Notes, this Indenture Indenture, if in effect, pursuant to a agreements, supplemental indenture reasonably satisfactory indentures or other documents, as required, and shall expressly assume all the obligations of the Issuer under the applicable Collateral Documents and shall cause such amendments, supplements and other instruments to be executed, filed and recorded in such jurisdictions as may be required by applicable law to preserve and protect the Liens on the Collateral owned by or transferred to the TrusteeSurviving Entity, together with such financing statements or comparable documents as may be required to perfect any security interests in such Collateral which may be perfected by the filing of a financing statement or similar document under the Uniform Commercial Code or other similar statute or regulation of the relevant states or jurisdictions; (3) immediately after such transaction, no Default or Event of Default existsshall have occurred and be continuing; (4) any of the following is true: (a) Issuer or the Surviving Entity would, on the date of 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, the Issuer, or the Surviving Person, would either (A) be permitted to incur at least $1.00 of additional Indebtedness pursuant to Section 4.10(a); (b) the Fixed Charge Coverage Ratio test set forth in Section 3.2 or (B) have a Fixed Charge Coverage Ratio of not less than the Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, would be greater than or equal to the actual Fixed Charge Coverage Ratio of the Issuer immediately prior to such transaction; or (c) the Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer merger, sale, assignment, transfer, lease, conveyance or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer immediately prior to such transactionother disposition; and (5) the Issuer shall have delivered to the Trustee and the Collateral Agent an Officer’s Certificate and an Opinion of Counsel Counsel, each stating that such consolidation, merger or amalgamation, or sale, assignment, lease, transfer, conveyance or other disposition transfer and such supplemental indenture, indenture and other documents or instruments (if any, ) comply with this Indenture and constitutes the legal, valid Collateral Documents and an Opinion of Counsel stating that such supplemental indenture and other document or instrument (if any) is a legal and binding obligation of the Issuer agreement enforceable against it the Successor Company; provided that in accordance with its termsgiving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact. (b) Sections 5.01(a)(1In addition, the Issuer will not, directly or indirectly, lease all or substantially all of the properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person. (c) through (5) above and This Section 5.01(d)(1) shall 4.1 will not apply to: (1) a merger of the Issuer with a Guarantor solely for the purpose of reincorporating the Issuer in another jurisdiction; or (2) any consolidation or merger, or any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Issuer and any Guarantors; provided that in each case of the immediately preceding clauses (1) and (2), either: (a) any Restricted Subsidiary of the Issuer merging, amalgamating or consolidating with or into is the Issuer or another Restricted Subsidiarysurviving corporation in such transaction; or (b) the transfer of assets between Person formed by or among surviving any such consolidation or merger (if other than the Issuer’s Restricted Subsidiaries, ) or from any of the Issuer’s Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3), (4) and (5) above shall not apply to the which a sale, assignment, transfer, conveyance, transferlease, lease or other disposition of all or substantially all of the properties or assets of the Issuer to an Affiliate incorporated has been made is treated for U.S. federal income tax purposes as a corporation organized or organized solely for existing under the purpose laws of reincorporating or reorganizing the Issuer in another United States, any state in of the United States and/or for the sole purpose of forming or collapsing a holding company structure. (c) The Surviving Person shall succeed to, and be substituted for, and may exercise every right and power of the Issuer under this Indenture. In the case of a lease, however, the Issuer shall not be released from any of the obligations or covenants under this Indenture. (d) Unless the Note Guarantee of the applicable Subsidiary Guarantor is permitted to be released in connection with such transaction as described in Section 4.16 or Section 10.06, such Subsidiary Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or amalgamate or merge with or into (whether or not it is the surviving Person) another Person, other than the Issuer or another Subsidiary Guarantor, unless: (1) immediately after giving effect to that transaction, no Default or Event of Default exists; and (2) either: (a) the Person (if other than the Issuer or a Subsidiary Guarantor) acquiring the property in any such sale or disposition or the Person (if other than the Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation or merger assumes all the obligations District of that Subsidiary Guarantor, as applicable, under this Indenture and its Note Guarantee pursuant to a supplemental indenture reasonably satisfactory to the Trustee; or (b) such transfer does not violate Section 4.11Columbia.

Merger, Consolidation or Sale of Assets. (a) The Issuer shall not will not, directly or indirectly: (1) consolidate, amalgamate consolidate or merge with or into another Person, (2) consummate a Division as the Dividing Person (whether or not it the Issuer is the surviving corporation); entity) or (23) sell, assign, lease, transfer, convey convey, lease or otherwise dispose of all or substantially all of its the properties or assets, assets of the Issuer and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another PersonPerson (other than in connection with the Transactions), unless: (1) either: : (a) the Issuer is the surviving corporationPerson; or or (b) the Person formed by or surviving any such consolidation, amalgamation merger or merger Division (if other than the Issuer) or to which such sale, assignment, lease, transfer, conveyance conveyance, lease or other disposition has been made (the “Surviving Person”) is a Person an entity organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if Columbia (such Person, the “Surviving Person is not a corporation, a Restricted Subsidiary that is a corporation shall become a co-obligor of the Notes pursuant to a supplemental indenture reasonably satisfactory to the TrusteeEntity”); (2) the Surviving Person Entity (if other than the Issuer) or the Person to which such sale, assignment, transfer, conveyance, lease or other disposition has been made assumes all the obligations of the Issuer under the Notes and this Indenture Indenture, pursuant to a supplemental indenture reasonably satisfactory indenture, and the Security Documents pursuant to the Trusteeterms thereof, as applicable; (3) immediately after such transaction, no Default or Event of Default exists; (4) any of the following is true: (a) on Issuer or the date of such transaction Surviving Entity would, 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, the Issuer, or the Surviving Person, would (a) be permitted to incur at least $1.00 of additional Indebtedness pursuant to Section 4.10(a); as Ratio Debt, (b) the have had a Fixed Charge Coverage Ratio of the Issuer equal to or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, would be greater than or equal to the actual Fixed Charge Coverage Ratio of for the Issuer immediately prior to for such transaction; or four-quarter period or (c) the Indebtedness have had a Consolidated Total Debt Ratio equal to Consolidated Tangible Net Worth Ratio of or less than such ratio for the Issuer or the Surviving Person, after giving pro forma effect to for such transaction and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer immediately prior to such transaction; andfour-quarter period; (5) the Issuer Surviving Entity (if other than the Issuer) shall have delivered deliver, or cause to be delivered, to the Trustee an Officer’s Certificate and an Opinion of Counsel Counsel, each stating to the effect that such consolidation, merger or amalgamationmerger, or Division, sale, assignment, lease, transfer, conveyance or other disposition and such supplemental indenture, if any, comply with this Indenture and constitutes the legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms. (b) Sections 5.01(a)(1) through (5) above and Section 5.01(d)(1) shall not apply to: (a) any Restricted Subsidiary of the Issuer merging, amalgamating or consolidating with or into the Issuer or another Restricted Subsidiary; or (b) the transfer of assets between or among the Issuer’s Restricted Subsidiaries, or from any of the Issuer’s Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3), (4) and (5) above shall not apply to the saleconveyance, assignment, conveyance, transfer, lease or other disposition complies with the requirements of this Indenture; (6) to the extent any property or assets of the Surviving Entity are property or assets of the type that would constitute Collateral under the Security Documents, the Surviving Entity shall take such action as may be reasonably necessary or required to cause such property and assets to be made subject to a Lien securing the Notes pursuant to this Indenture and the Security Documents in the manner and to the extent required by this Indenture or any of the Security Documents and shall take all reasonably necessary action so that such Lien is perfected, preserved and protected to the extent required by this Indenture and the Security Documents; (7) the Collateral owned by or sold, assigned, conveyed, leased, transferred or otherwise disposed of to the Surviving Entity shall (a) continue to constitute Collateral under this Indenture and the Security Documents, (b) be subject to the Lien in favor of the Notes Collateral Agent for the benefit of the Trustee and the Holders of the Notes and (c) not be subject to any Lien other than Permitted Liens or other Liens as permitted pursuant to Section 4.12 hereof; and (8) the Surviving Entity (if other than the Issuer) shall become a party to the Intercreditor Agreements by joinder or supplement. (b) Section 5.01(a) will not apply to any sale, assignment, transfer, conveyance, lease, Division or other disposition of assets between or among the Issuer and any Guarantor or any transfer of title or other disposition of assets subject to or pursuant to any Floorplan Financing Agreement. Clauses (3) and (4) of Section 5.01(a) will not apply to (a) any merger, consolidation or amalgamation of any Restricted Subsidiary with or into the Issuer, (b) any consolidation, amalgamation or merger of the Issuer into, or sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all part of the properties and assets of the Issuer to to, any Guarantor, (c) a merger, consolidation or amalgamation of the Issuer with or into an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing the Issuer in another state in jurisdiction so long as the United States and/or for the sole purpose amount of forming or collapsing a holding company structure. (c) The Surviving Person shall succeed to, and be substituted for, and may exercise every right and power Indebtedness of the Issuer under this Indenture. In the case of a lease, however, the Issuer shall and its Restricted Subsidiaries is not be released from any of the obligations increased thereby or covenants under this Indenture. (d) Unless the Note Guarantee conversion of the applicable Subsidiary Guarantor is permitted to be released in connection with such transaction as described in Section 4.16 or Section 10.06, such Subsidiary Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or amalgamate or merge with or into (whether or not it is the surviving Person) another Person, other than the Issuer or another Subsidiary Guarantor, unless: (1) immediately after giving effect to that transaction, no Default or Event of Default exists; and (2) either: (a) the Person (if other than the Issuer or a Restricted Subsidiary Guarantor) acquiring into a corporation, partnership, limited partnership, limited liability company or trust, organized or existing under the property in laws of the United States, any such sale or disposition state thereof or the Person (if other than District of Columbia. In addition, the Issuer or a any Restricted Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation or merger assumes all the obligations of that Subsidiary Guarantor, as applicable, under this Indenture and may change its Note Guarantee pursuant to a supplemental indenture reasonably satisfactory to the Trustee; or (b) such transfer does not violate Section 4.11name.

Merger, Consolidation or Sale of Assets. (a) The Issuer shall not directly will not, in a single transaction or indirectly: (1) consolidateseries of related transactions, amalgamate consolidate or merge with or into another Person any Person, or Transfer (whether or not it is cause or permit any Restricted Subsidiary of the surviving corporation); or (2Issuer to Transfer) sell, assign, lease, transfer, convey or otherwise dispose of all or substantially all of the Issuer’s assets (determined on a consolidated basis for the Issuer and its properties Subsidiaries) whether as an entirety or assets, taken substantially as a whole, in one or more related transactions, an entirety to another any Person, unless: (1) either: (aA) the Issuer is the surviving corporationor continuing Person; or (bB) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issuer) formed by such consolidation or to into which the Issuer is merged or the Transferee of such sale, assignment, lease, transfer, conveyance or other disposition has been made assets (the “Issuer Surviving PersonEntity”): (i) is a Person corporation, partnership or limited liability company organized or and validly existing under the laws of the United States, States or any state of the United States State thereof or the District of Columbia; provided that if such Surviving in the case where the surviving Person is not a corporation, a Restricted Subsidiary that is a corporation shall become a co-obligor of the Notes pursuant to is a corporation; and (ii) expressly assumes, by supplemental indenture reasonably (in form and substance satisfactory to the Trustee;) executed and delivered to the Trustee, the due and punctual payment of the principal of and premium, if any, and interest on all of the Notes and the performance of every covenant under the Notes, this Indenture and the Registration Rights Agreement on the part of the Issuer to be performed or observed; and (2iii) each of the conditions specified in paragraph (c) below is satisfied. For purposes of the foregoing, the Transfer in a single transaction or series of related transactions of all or substantially all of the assets of one or more Restricted Subsidiaries of the Issuer, the Capital Stock of which constitutes all or substantially all of the assets of the Issuer (determined on a consolidated basis for the Issuer and its Subsidiaries), shall be deemed to be the Transfer of all or substantially all of the assets of the Issuer. (b) No Guarantor will, and the Issuer will not cause or permit any such Guarantor to, consolidate with or merge with or into any Person unless (1) either (A) such Guarantor shall be the surviving or continuing Person; or (B) the Surviving Person (if other than the Issuera Guarantor) assumes all the obligations of the Issuer under the Notes and this Indenture pursuant to a formed by such consolidation or into which such Guarantor is merged shall expressly assume, by supplemental indenture reasonably (in form and substance satisfactory to the Trustee;) executed and delivered to the Trustee, all of the obligations of such Guarantor under its Guarantee and the performance of every covenant under such Guarantor’s Guarantee and this Indenture on the part of such Guarantor to be performed or observed; and (3C) each of the conditions specified in paragraph (c) below (other than clause (1) thereof) is satisfied. The requirements of clauses (a) and (b) of this Section 5.01 shall not apply to (x) a consolidation or merger of any Guarantor with and into the Issuer or any other Guarantor, so long as the Issuer or a Guarantor survives such consolidation or merger, or (y) a Transfer of any Subsidiary Guarantor that complies with Section 4.10. (c) The following additional conditions shall apply to each transaction described in Sections 5.01(a) or 5.01(b), except that clause (1) below shall not apply to a transaction described in Section 5.01(b): (1) immediately after giving effect to such transaction and the assumption contemplated above (including giving effect to any Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction, no Default or Event of Default exists;): (4A) any of the following is true: Issuer (a) on the date of 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, the Issuer, or the Issuer Surviving PersonEntity, would be permitted to if applicable) could incur at least $1.00 of additional Indebtedness pursuant to Section 4.10(a);the Coverage Ratio Exception; or (bB) the Fixed Charge Consolidated Coverage Ratio of the Issuer (or the Issuer Surviving PersonEntity, if applicable) and the Restricted Subsidiaries is equal to or greater than immediately prior to such acquisition or merger; (2) immediately before and immediately after giving pro forma effect to such transaction and the assumption contemplated above (including giving effect to any related financing transactions as if the same had occurred at the beginning Indebtedness incurred or anticipated to be incurred and any Lien granted in connection with or in respect of the applicable four-quarter periodtransaction), would be greater than or equal to the actual Fixed Charge Coverage Ratio of the Issuer immediately prior to such transaction; or (c) the Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer or the Surviving Person, after giving pro forma effect to such transaction no Default has occurred and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer immediately prior to such transactionis continuing; and (53) the Issuer shall have delivered to the Trustee an Officer’s Certificate officers’ certificate and an Opinion opinion of Counsel counsel, each stating that such consolidation, merger or amalgamation, or sale, assignment, lease, transfer, conveyance or other disposition and such supplemental indenturetransaction and, if any, comply with this Indenture and constitutes the legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms. (b) Sections 5.01(a)(1) through (5) above and Section 5.01(d)(1) shall not apply to: (a) any Restricted Subsidiary of the Issuer merging, amalgamating or consolidating with or into the Issuer or another Restricted Subsidiary; or (b) the transfer of assets between or among the Issuer’s Restricted Subsidiaries, or from any of the Issuer’s Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3), (4) and (5) above shall not apply to the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the assets of the Issuer to an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing the Issuer in another state in the United States and/or for the sole purpose of forming or collapsing a holding company structure. (c) The Surviving Person shall succeed to, and be substituted for, and may exercise every right and power of the Issuer under this Indenture. In the case of a lease, however, the Issuer shall not be released from any of the obligations or covenants under this Indenture. (d) Unless the Note Guarantee of the applicable Subsidiary Guarantor supplemental indenture is permitted to be released required in connection with such transaction as described in Section 4.16 or Section 10.06transaction, such Subsidiary Guarantor may not sell or otherwise dispose supplemental indenture comply with the applicable provisions of this Indenture, that all or substantially all of its assets to, or consolidate with or amalgamate or merge with or into (whether or not it is the surviving Person) another Person, other than the Issuer or another Subsidiary Guarantor, unless: (1) immediately after giving effect to that transaction, no Default or Event of Default exists; and (2) either: (a) the Person (if other than the Issuer or a Subsidiary Guarantor) acquiring the property conditions precedent in any such sale or disposition or the Person (if other than the Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation or merger assumes all the obligations of that Subsidiary Guarantor, as applicable, under this Indenture relating to such transaction have been satisfied and its Note Guarantee pursuant to a that supplemental indenture reasonably satisfactory to the Trustee; or (b) such transfer does not violate Section 4.11is enforceable.

Merger, Consolidation or Sale of Assets. (a) The Issuer shall will not directly or indirectly: (1) consolidate, amalgamate consolidate or merge with or into another Person (whether into, or not it is the surviving corporation); or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the Issuer's consolidated properties or assets in one or more related transactions, to another corporation or other Person unless: (i) the Issuer is the surviving corporation or the Person (if other than the Issuer) formed by such consolidation or into which the Issuer is merged or the Person that acquires by conveyance, transfer or lease substantially all of the properties and assets of the Issuer (the "Surviving Entity") shall be a corporation organized and validly existing under the laws of the United States or any state thereof or the District of Columbia; (ii) if the Issuer is not the surviving corporation, the Surviving Entity assumes all the obligations of the Issuer under the Securities and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; (iii) immediately after such transaction, no Default or Event of Default exists; (iv) except in the case of a merger of the Issuer with or into a Wholly Owned Restricted Subsidiary of the Issuer or a merger entered into solely for the purpose of reincorporating the Issuer in another jurisdiction, the Issuer or the Surviving Entity, as the case may be, (A) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the 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 Debt pursuant to the Consolidated Fixed Charge Coverage Ratio test set forth in Section 4.12(a); and (v) the Issuer or the Surviving Entity, as the case may be, shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, sale, assignment transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to such transaction have been satisfied. (b) Each Guarantor (other than any Guarantor whose Guarantee is to be released in accordance with the terms of the Guarantee and this Indenture in connection with any transaction complying with the provisions of Section 4.16) will not, and the Issuer will not cause or permit any Guarantor to, consolidate with or merge with or into, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, taken as a whole, in one or more related transactions, assets to another Person, unless: (1) either: (a) any Person other than the Issuer or any other Guarantor unless: (i) such Guarantor is the surviving corporationcorporation or the Person (if other than a Guarantor) formed by such consolidation or into which such Guarantor is merged or the Person that acquires by conveyance, transfer or lease substantially all of the properties and assets of such Guarantor shall be a corporation organized and existing under the laws of the United States or any State thereof or the District of Columbia; or (bii) the such entity or Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the IssuerGuarantor) or the entity or Person to which such sale, assignment, transfer, lease, transfer, conveyance or other disposition has shall have been made (assumes all of the “Surviving Person”) is a Person organized or existing obligations of the Guarantor under the laws of the United States, any state of the United States or the District of Columbia; provided that if such Surviving Person is not a corporation, a Restricted Subsidiary that is a corporation shall become a co-obligor of the Notes Guarantee pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; ; (2) the Surviving Person (if other than the Issuer) assumes all the obligations of the Issuer under the Notes and this Indenture pursuant to a supplemental indenture reasonably satisfactory to the Trustee; (3iii) immediately after giving effect to such transaction, no Default or Event of Default exists; (4) any of the following is true: (a) on the date of 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, the Issuer, or the Surviving Person, would be permitted to incur at least $1.00 of additional Indebtedness pursuant to Section 4.10(a); (b) the Fixed Charge Coverage Ratio of the Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, would be greater than or equal to the actual Fixed Charge Coverage Ratio of the Issuer immediately prior to such transaction; or (c) the Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer immediately prior to such transaction; and (5) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating that such consolidation, merger or amalgamation, or sale, assignment, lease, transfer, conveyance or other disposition and such supplemental indenture, if any, comply with this Indenture and constitutes the legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms. (b) Sections 5.01(a)(1) through (5) above and Section 5.01(d)(1) shall not apply to: (a) any Restricted Subsidiary of the Issuer merging, amalgamating or consolidating with or into the Issuer or another Restricted Subsidiary; or (b) the transfer of assets between or among the Issuer’s Restricted Subsidiaries, or from any of the Issuer’s Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3), (4) and (5) above shall not apply to the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the assets of the Issuer to an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing the Issuer in another state in the United States and/or for the sole purpose of forming or collapsing a holding company structure. (c) The Surviving Person shall succeed to, and be substituted for, and may exercise every right and power of the Issuer under this Indenture. In the case of a lease, however, the Issuer shall not be released from any of the obligations or covenants under this Indenture. (d) Unless the Note Guarantee of the applicable Subsidiary Guarantor is permitted to be released in connection with such transaction as described in Section 4.16 or Section 10.06, such Subsidiary Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or amalgamate or merge with or into (whether or not it is the surviving Person) another Person, other than the Issuer or another Subsidiary Guarantor, unless: (1iv) immediately after giving effect to that such transaction, no Default or Event of Default exists; and (2) either: (a) the Person (if other than the Issuer could satisfy the provisions of clause (iv) of Section 5.01(a). Any merger or consolidation of a Subsidiary Guarantor) acquiring the property in any such sale or disposition or the Person (if other than Guarantor with and into the Issuer (with the Issuer being the surviving entity) or a Subsidiary Guarantoranother Guarantor need only comply with clauses (iv)(A) formed by or surviving any such consolidation or amalgamation or merger assumes all the obligations and (v) of that Subsidiary Guarantor, as applicable, under this Indenture and its Note Guarantee pursuant to a supplemental indenture reasonably satisfactory to the Trustee; or (b) such transfer does not violate Section 4.115.01(a).

Merger, Consolidation or Sale of Assets. (a) The From and after the Escrow Release Date, the Issuer shall not will not, directly or indirectly: (1) consolidate, amalgamate consolidate or merge with or into another Person or consummate a Division as the Dividing Person (whether or not it the Issuer is the surviving corporationPerson); or (2) sell, assign, lease, transfer, convey or otherwise dispose of all or substantially all of its the properties or assets, assets of the Issuer and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless: (1) eitherEither: (aA) the Issuer is the surviving corporationentity; or (bB) the Person formed by or surviving any such consolidation, amalgamation merger or merger Division (if other than the Issuer) or to which such sale, assignment, lease, transfer, conveyance or other disposition has been made (the “Surviving Person”) is a Person an entity organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if such Surviving Person is not a corporation, a Restricted Subsidiary that is a corporation shall become a co-obligor of the Notes pursuant to a supplemental indenture reasonably satisfactory to the Trustee; (2) the Surviving Person formed by or surviving any such consolidation, merger or Division (if other than the Issuer) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Issuer under the Notes and this Indenture pursuant to a supplemental indenture reasonably satisfactory to the Trustee; (3) immediately after such transaction, no Default or Event of Default exists;; and (4) the Issuer or the Person formed by or surviving any of such consolidation, merger or Division (if other than the following is true: (a) Issuer), or to which such sale, assignment, transfer, conveyance or other disposition has been made would, on the date of 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-four- quarter period, the Issuer, or the Surviving Person, would ; (A) be permitted to incur at least $1.00 of additional Indebtedness pursuant to Section 4.10(a); (b) the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) of the Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, would be this Indenture; or (B) have a Fixed Charge Coverage Ratio that is greater than or equal to the actual Fixed Charge Coverage Ratio of the Issuer immediately prior to such transaction; or (c) the Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer immediately prior to such transaction; and (5) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating that such consolidation, merger or amalgamation, or sale, assignment, lease, transfer, conveyance or other disposition and such supplemental indenture, if any, comply with this Indenture and constitutes the legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms. (b) Sections 5.01(a)(1The Issuer will not, directly or indirectly, lease all or substantially all of the properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person. (c) through Clauses (53) above and (4) of Section 5.01(d)(15.01(a) of this Indenture shall not apply to: : (a1) any Restricted Subsidiary a merger of the Issuer merging, amalgamating or consolidating with or into an Affiliate solely for the purpose of reincorporating the Issuer in another jurisdiction; and (2) any consolidation or another Restricted Subsidiary; merger, or (b) the transfer any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Issuer’s Issuer and its Restricted SubsidiariesSubsidiaries or, or from so long as the Issuer is a surviving Person and any other surviving Person is a Restricted Subsidiary of the Issuer’s Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3), (4) and (5) above shall not apply to the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the assets any Division of the Issuer to an Affiliate incorporated or organized solely for as the purpose of reincorporating or reorganizing the Issuer in another state in the United States and/or for the sole purpose of forming or collapsing a holding company structureDividing Person. (c) The Surviving Person shall succeed to, and be substituted for, and may exercise every right and power of the Issuer under this Indenture. In the case of a lease, however, the Issuer shall not be released from any of the obligations or covenants under this Indenture. (d) Unless the Note Guarantee of the applicable Subsidiary Guarantor is permitted to be released in connection with such transaction as described in Section 4.16 or Section 10.06, such Subsidiary Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or amalgamate or merge with or into (whether or not it is the surviving Person) another Person, other than the Issuer or another Subsidiary Guarantor, unless: (1) immediately after giving effect to that transaction, no Default or Event of Default exists; and (2) either: (a) the Person (if other than the Issuer or a Subsidiary Guarantor) acquiring the property in any such sale or disposition or the Person (if other than the Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation or merger assumes all the obligations of that Subsidiary Guarantor, as applicable, under this Indenture and its Note Guarantee pursuant to a supplemental indenture reasonably satisfactory to the Trustee; or (b) such transfer does not violate Section 4.11.

Merger, Consolidation or Sale of Assets. (a) The Issuer shall may not directly or indirectly: (1) consolidate, amalgamate consolidate or merge with or into another Person (whether or not it the Issuer is the surviving corporation); , or (2) sell, assign, lease, transfer, convey or otherwise dispose of all or substantially all of its properties or assets, taken as a whole, assets in one or more related transactions, to another Person, unless: (1) either: Person unless (a) the Issuer is the surviving corporation; or (b) corporation or the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the Issuer) or to which such sale, assignment, lease, transfer, conveyance or other disposition has shall have been made (the “Surviving Person”) is a Person corporation organized or existing under the laws of the United States, any state of the United States thereof or the District of Columbia; provided that if such Surviving Person is not a corporation, a Restricted Subsidiary that is a corporation shall become a co-obligor of the Notes pursuant to a supplemental indenture reasonably satisfactory to the Trustee; (2b) the Surviving Person formed by or surviving any such consolidation or merger (if other than the Issuer) or the Person to which such sale, assignment, transfer, conveyance or other disposition shall have been made assumes all the obligations of the 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; , (3c) immediately after such transaction, transaction no Default or Event of Default exists; exists and (4d) the Issuer or the Person formed by or surviving any of such consolidation or merger (if other than the following is true: Issuer), or to which such sale, assignment, transfer, conveyance or other disposition shall have been made (ai) on will, at the date time of such transaction and after giving pro forma effect thereto and any related financing transactions as if the same such transaction had occurred at the beginning of the applicable four-quarter period, the Issuer, or the Surviving Person, would be permitted to incur at least $1.00 of additional Indebtedness pursuant to Section 4.10(a); (b) the Fixed Charge Coverage Ratio test set forth in the first paragraph of the Issuer Section 4.09 hereof or the Surviving Person, (ii) would (together with its Restricted Subsidiaries) have a higher Fixed Charge Coverage Ratio immediately after such transaction (after giving pro forma effect to thereto as if such transaction and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, would be greater ) than or equal to the actual Fixed Charge Coverage Ratio of the Issuer and its Restricted Subsidiaries immediately prior to such transaction; or . The 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 (c) the Indebtedness to Consolidated Tangible Net Worth Ratio of a merger between the Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer immediately prior to such transaction; and (5) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating that such consolidation, merger or amalgamation, or sale, assignment, lease, transfer, conveyance or other disposition and such supplemental indenture, if any, comply with this Indenture and constitutes the legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms. (b) Sections 5.01(a)(1) through (5) above and Section 5.01(d)(1) shall not apply to: (a) any Restricted Subsidiary of the Issuer merging, amalgamating or consolidating with or into the Issuer or another Restricted Subsidiary; or (b) the transfer of assets between or among the Issuer’s Restricted Subsidiaries, or from any of the Issuer’s Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3), (4) and (5) above shall not apply to the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the assets of the Issuer to an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing the Issuer in another state in State of the United States and/or for so long as, in each case, the sole purpose amount of forming or collapsing a holding company structure. (c) The Surviving Person shall succeed to, and be substituted for, and may exercise every right and power Indebtedness of the Issuer under this Indentureand its Restricted Subsidiaries is not increased thereby. In the case of a lease, however, the The Issuer shall not be released from any of the obligations or covenants under this Indenture. (d) Unless the Note Guarantee of the applicable Subsidiary Guarantor is permitted to be released in connection with such transaction as described in Section 4.16 or Section 10.06, such Subsidiary Guarantor may not sell or otherwise dispose of lease all or substantially all of its assets to, or consolidate with or amalgamate or merge with or into (whether or not it is the surviving to any Person) another Person, other than the Issuer or another Subsidiary Guarantor, unless: (1) immediately after giving effect to that transaction, no Default or Event of Default exists; and (2) either: (a) the Person (if other than the Issuer or a Subsidiary Guarantor) acquiring the property in any such sale or disposition or the Person (if other than the Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation or merger assumes all the obligations of that Subsidiary Guarantor, as applicable, under this Indenture and its Note Guarantee pursuant to a supplemental indenture reasonably satisfactory to the Trustee; or (b) such transfer does not violate Section 4.11.

Merger, Consolidation or Sale of Assets. (a) The Issuer shall not directly or indirectlyNeither of the Issuers may: (1) consolidate, amalgamate consolidate or merge with or into another Person (whether or not it such Issuer is the surviving corporationentity); or (2) directly or indirectly sell, assign, transfer, lease, transfer, convey or otherwise dispose of all or substantially all of its the properties or assetsassets of the Issuers and the Restricted Subsidiaries, taken as a whole, in one or more related transactions, to another Person, unless: (1) either: (aA) the such Issuer is the surviving corporationentity; or (bB) the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the such Issuer) or to which such sale, assignment, lease, transfer, conveyance or other disposition has been made (the “Surviving Person”) is a Person organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided provided, however, that if Finance Corp. may not consolidate or merge with or into any Person other than a corporation satisfying such Surviving Person requirement so long as TransMontaigne Partners is not a corporation, a Restricted Subsidiary that is a corporation shall become a co-obligor of the Notes pursuant to a supplemental indenture reasonably satisfactory to the Trustee; (2) the Surviving Person formed by or surviving any such consolidation or merger (if other than the such Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made assumes all the obligations of the such Issuer under the Notes and this Indenture pursuant to a supplemental indenture agreements reasonably satisfactory to the Trustee; (3) immediately after such transaction, no Default or Event of Default exists; (4) in the case of a transaction involving TransMontaigne Partners and not Finance Corp., TransMontaigne Partners or the Person formed by or surviving any of the following is truesuch consolidation or merger (if other than TransMontaigne Partners), or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made, will: (aA) on the date of 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 periodReference Period, the Issuer, or the Surviving Person, would be permitted to incur at least $1.00 of additional Indebtedness pursuant to Section 4.10(a); (b) the Fixed Charge Coverage Ratio test set forth in Section 5.09(a); or (B) have a Fixed Charge Coverage Ratio, on the date of the Issuer or the Surviving Person, such transaction and after giving pro forma effect to such transaction thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter periodReference Period, would be greater not less than or equal to the actual Fixed Charge Coverage Ratio of the Issuer immediately prior to such transaction; or (c) the Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer TransMontaigne Partners immediately prior to such transaction; and (5) the such Issuer shall have has delivered to the Trustee an Officer’s Officers’ Certificate and an Opinion of Counsel Counsel, each stating that such consolidation, merger or amalgamation, or sale, assignment, lease, transfer, conveyance or other disposition and such supplemental indenture, indenture (if any, ) comply with this Indenture and constitutes the legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms. (b) Sections 5.01(a)(1) through (5) above and all conditions precedent therein relating to such transaction have been satisfied. provided that this Section 5.01(d)(1) shall not apply to: (a) any Restricted Subsidiary of the Issuer merging, amalgamating or consolidating with or into the Issuer or another Restricted Subsidiary; or (b) the transfer of assets between or among the Issuer’s Restricted Subsidiaries, or from any of the Issuer’s Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3), (4) and (5) above shall 6.01 will not apply to the any sale, assignment, transfer, conveyance, transfer, lease or other disposition of all assets between or substantially all among TransMontaigne Partners and its Restricted Subsidiaries, provided further that Sections 6.01(a)(3) and (4) will not apply to any merger or consolidation of the assets TransMontaigne Partners (A) with or into one of the Issuer to its Restricted Subsidiaries for any purpose or (B) with or into an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing the Issuer TransMontaigne Partners in another state in jurisdiction under the law of the United States and/or for or any state thereof or the sole purpose District of forming or collapsing a holding company structureColumbia. (cb) The Surviving Person shall succeed toNotwithstanding Section 6.01(a), and TransMontaigne Partners will be substituted for, and may exercise every right and power permitted to reorganize as any other form of entity in accordance with the Issuer under procedures established in this Indenture. In the case of a lease, however, the Issuer shall not be released from any of the obligations or covenants under this Indenture. (d) Unless the Note Guarantee of the applicable Subsidiary Guarantor is permitted to be released in connection with such transaction as described in Section 4.16 or Section 10.06, such Subsidiary Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or amalgamate or merge with or into (whether or not it is the surviving Person) another Person, other than the Issuer or another Subsidiary Guarantor, unless; provided that: (1) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of TransMontaigne Partners into a form of entity other than a limited partnership formed under Delaware law; (2) the entity so formed by or resulting from such reorganization is an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia; (3) the entity so formed by or resulting from such reorganization assumes all the obligations of TransMontaigne Partners under the Notes and this Indenture pursuant to agreements reasonably satisfactory to the Trustee; (4) immediately after giving effect to that transaction, such reorganization no Default or Event of Default exists; and (25) either: such reorganization is, in the good faith judgment of an Officer of the General Partner, not materially adverse to the Holders of the Notes (for purposes of this clause (5) it is stipulated that such reorganization shall not be considered materially adverse to the Holders of the Notes solely because the successor or survivor of such reorganization (a) the Person (if other than the Issuer is subject to federal or a Subsidiary Guarantor) acquiring the property in any such sale state income taxation as an entity or disposition or the Person (if other than the Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation or merger assumes all the obligations of that Subsidiary Guarantor, as applicable, under this Indenture and its Note Guarantee pursuant to a supplemental indenture reasonably satisfactory to the Trustee; or (b) such transfer does not violate is considered to be an “includible corporation” of an affiliated group of corporations within the meaning of Section 4.111504(b) of the Code or any similar state or local law).

Merger, Consolidation or Sale of Assets. (a) The Issuer shall not Borrower will not, directly or indirectly: (1) consolidate, amalgamate %3. consolidate or merge with or into another Person (whether or not it the Borrower is the surviving corporation); or (2b) sell, assign, lease, transfer, convey or otherwise dispose of all or substantially all of its the properties or assets, assets of the Borrower and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; unless, unlesssubject to Section 9.22: (1i) either: either (aA) the Issuer Borrower is the surviving corporation; or corporation or (bB) the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the IssuerBorrower) or to which such sale, assignment, lease, transfer, conveyance or other disposition has been made (the “Surviving Person”) is a Person corporation, partnership or limited liability company organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if such Surviving Person is not a corporation, a Restricted Subsidiary that is a corporation shall become a co-obligor of the Notes pursuant to a supplemental indenture reasonably satisfactory to the Trustee; (2ii) the Surviving Person formed by or surviving any such consolidation or merger (if other than the IssuerBorrower) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Issuer Borrower under the Notes and this Indenture Loan Documents pursuant to a supplemental indenture joinder agreements or other documents and agreements reasonably satisfactory to the TrusteeAdministrative Agent; (3iii) immediately after such transaction, no Default or Event of Default exists;; and (4iv) (A) the Borrower or the Person formed by or surviving any of such consolidation or merger (if other than the following is true: (a) Borrower), or to which such sale, assignment, transfer, conveyance or other disposition has been made will, on the date of such transaction after giving pro forma effect thereto and to any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, the Issuer, or the Surviving Person, would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the provisions of Section 4.10(a); 6.01(a) or (bB) the Fixed Charge Coverage Ratio of the Issuer Borrower or the Surviving Person, Person formed by or surviving any such consolidation or merger (if other than the Borrower) is greater after giving pro forma effect to such transaction consolidation or merger and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, would be greater period than or equal to the Borrower’s actual Fixed Charge Coverage Ratio of for the Issuer immediately prior to such transaction; orperiod. (ca) In addition, the Indebtedness Borrower shall not, directly or indirectly, lease all or substantially all of its properties or assets, in one or more related transactions, to Consolidated Tangible Net Worth Ratio of the Issuer or the Surviving any other Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer immediately prior to such transaction; and (5) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating that such consolidation, merger or amalgamation, or sale, assignment, lease, transfer, conveyance or other disposition and such supplemental indenture, if any, comply with this Indenture and constitutes the legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms. (b) Sections 5.01(a)(1) through (5) above and This Section 5.01(d)(1) 6.08 shall not apply to: to (ai) a merger of the Borrower with an Affiliate solely for the purpose of reincorporating the Borrower in another jurisdiction or forming a direct holding company of the Borrower; and (ii) any Restricted Subsidiary of the Issuer mergingsale, amalgamating transfer, assignment, conveyance, lease or consolidating with or into the Issuer or another Restricted Subsidiary; or (b) the transfer other disposition of assets between or among the Issuer’s Borrower and its Restricted Subsidiaries, including by way of merger or from consolidation. (c) Upon any of the Issuer’s Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3)consolidation or merger, (4) and (5) above shall not apply to the or any sale, assignment, conveyance, transfer, lease lease, conveyance or other disposition of all or substantially all of the assets of the Issuer Borrower and its Restricted Subsidiaries taken as a whole in a transaction that is subject to, and that complies with the provisions of, Sections 6.08(a) through and including 6.08(d), the successor corporation formed by such consolidation or into or with which the Borrower is merged or to an Affiliate incorporated which such sale, assignment, transfer, lease, conveyance or organized solely for the purpose of reincorporating or reorganizing the Issuer in another state in the United States and/or for the sole purpose of forming or collapsing a holding company structure. (c) The Surviving Person other disposition is made shall succeed to, and be substituted forfor (so that from and after the date of such consolidation, merger, sale, lease, conveyance or other disposition, the provisions of this Agreement and the other Loan Documents referring to the “Borrower” shall refer instead to the successor corporation and not to the Borrower), and may exercise every right and power of the Issuer Borrower under this Indenture. In Agreement and the other Loan Documents with the same effect as if such successor Person had been named as the Borrower herein; provided, however, that the predecessor Borrower shall not be relieved from its payment obligations hereunder except in the case of a lease, however, the Issuer shall not be released from any sale of all of the obligations or covenants under this Indenture. (d) Unless the Note Guarantee of the applicable Subsidiary Guarantor Borrower’s assets in a transaction that is permitted to be released in connection with such transaction as described in Section 4.16 or Section 10.06, such Subsidiary Guarantor may not sell or otherwise dispose of all or substantially all of its assets subject to, or consolidate and that complies with or amalgamate or merge with or into (whether or not it is the surviving Personprovisions of, Section 6.08(a) another Person, other than the Issuer or another Subsidiary Guarantor, unless: (1) immediately after giving effect to that transaction, no Default or Event of Default exists; and (2) either: (a) the Person (if other than the Issuer or a Subsidiary Guarantor) acquiring the property in any such sale or disposition or the Person (if other than the Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation or merger assumes all the obligations of that Subsidiary Guarantor, as applicable, under this Indenture through and its Note Guarantee pursuant to a supplemental indenture reasonably satisfactory to the Trustee; or (b) such transfer does not violate Section 4.11including 6.08(d).

Merger, Consolidation or Sale of Assets. (a) The Issuer shall will not directly or indirectly: (1) consolidate, amalgamate consolidate or merge with or into another Person (whether or not it is the surviving corporation); ) or (2) sell, assign, transfer, lease, transfer, convey or otherwise dispose of all or substantially all of its properties and assets as an entirety or assets, taken substantially as a whole, an entirety in one or more related transactions, to another Person, unless: (1i) either: : (a) the Issuer is the surviving corporationPerson; or or (b) the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the Issuer) or to which such sale, assignment, lease, transfer, conveyance conveyance, lease or other disposition has been made (the “Surviving Person”) is a Person an entity organized or existing under the laws of an Approved Jurisdiction (other than the United States, any state Federal Republic of the United States or the District of Columbia; provided that if such Surviving Person is not a corporation, a Restricted Subsidiary that is a corporation shall become a co-obligor of the Notes pursuant to a supplemental indenture reasonably satisfactory to the TrusteeNigeria); (2ii) the Surviving Person formed by or surviving any such consolidation or merger with the Issuer (if other than the Issuer) or the Person to which such sale, assignment, transfer, conveyance, lease or other disposition has been made assumes all the obligations of the Issuer under the Senior Notes and this Senior Notes Indenture pursuant to a supplemental indenture reasonably satisfactory to and, if applicable, the TrusteeSubordination Deed or any Additional Subordination Deed; (3iii) immediately after such transaction, no Default or Event of Default exists; (4iv) the Issuer or the Person formed by or surviving any of such consolidation or merger (if other than the following is true: (a) Issuer), or to which such sale, assignment, transfer, conveyance, lease or other disposition has been made would, on the date of 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, the Issuer, or the Surviving Person, would period (A) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Net Leverage Ratio test set forth in Section 4.10(a); 4.09(a) hereof or (bB) the Fixed Charge Coverage have a Consolidated Net Leverage Ratio of the Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, would be not greater than or equal to the actual Fixed Charge Coverage Ratio of the Issuer it was immediately prior to such transaction; or (c) the Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer immediately prior to such transaction; and (5v) the Issuer shall have delivered delivers to the Trustee Trustee, in form and substance reasonably satisfactory to the Trustee, an Officer’s 's Certificate and an Opinion of Counsel Counsel, in each case, stating that such consolidation, merger or amalgamation, or sale, assignment, lease, transfer, conveyance or other disposition transfer and such supplemental indenture, if any, indenture comply with this covenant and that all conditions precedent in this Senior Notes Indenture relating to such transaction have been satisfied and that this Senior Notes Indenture and constitutes the Senior Notes constitute legal, valid and binding obligation obligations of the Issuer Issuer, or the Person formed by or surviving any such consolidation or merger (as applicable) enforceable against it in accordance with its their terms. (b) Sections 5.01(a)(1) through A Guarantor (5) above and Section 5.01(d)(1) shall not apply to: (a) any Restricted Subsidiary of the Issuer merging, amalgamating or consolidating with or into the Issuer or another Restricted Subsidiary; or (b) the transfer of assets between or among the Issuer’s Restricted Subsidiaries, or from any of the Issuer’s Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3), (4) and (5) above shall not apply to the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the assets of the Issuer to an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing the Issuer in another state in the United States and/or for the sole purpose of forming or collapsing than a holding company structure. (c) The Surviving Person shall succeed to, and be substituted for, and may exercise every right and power of the Issuer under this Indenture. In the case of a lease, however, the Issuer shall not be released from any of the obligations or covenants under this Indenture. (d) Unless the Guarantor whose Note Guarantee of the applicable Subsidiary Guarantor is permitted to be released in connection accordance with the terms of the Note Guarantee and Section 10.05 hereof) will not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not such transaction as described in Section 4.16 Guarantor is the surviving corporation) or Section 10.06(2) sell, such Subsidiary Guarantor may not sell assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of such Guarantor and its assets toSubsidiaries that are Restricted Subsidiaries taken as a whole, in one or consolidate with or amalgamate or merge with or into (whether or not it is the surviving Person) more related transactions, to another Person, other than the Issuer or another Subsidiary Guarantor, unless: (1i) either: (A) such Guarantor is the surviving Person; or (B) the Person formed by or surviving any such consolidation or merger (if other than such Guarantor) or the Person to which such sale, assignment, transfer, conveyance, lease or other disposition has been made assumes all the obligations of such Guarantor under its Note Guarantee and this Senior Notes Indenture pursuant to a supplemental indenture, and, if applicable, the Subordination Deed or any Additional Subordination Deed; (ii) immediately after giving pro forma effect to that transactionsuch transaction or transactions (and treating any Indebtedness which becomes an obligation of the surviving corporation as a result of such transaction as having been incurred by the surviving corporation at the time of such transaction or transactions), no Default or Event of Default exists; and (2) either: (aiii) the Person (if other than Issuer delivers to the Issuer Trustee an Officer's Certificate and Opinion of Counsel, in each case, stating that such consolidation, merger or a Subsidiary Guarantor) acquiring transfer and such supplemental indenture comply with this covenant and that all conditions precedent in this Senior Notes Indenture relating to such transaction have been satisfied and that this Senior Notes Indenture and the property in any such sale or disposition Note Guarantee constitute legal, valid and binding obligations of the Guarantor or the Person (if other than the Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation and merger (as applicable) enforceable in accordance with their terms. (c) [Reserved]. (d) This Section 5.01 will not apply to (i) any consolidation or merger assumes all of any Restricted Subsidiary that is not a Guarantor with and into the obligations Issuer or a Guarantor; (ii) any consolidation or merger of that Subsidiary any Guarantor with or into the Issuer or any other Guarantor; or (iii) any Permitted Reorganization effected in compliance with the definition thereof; provided that, as applicablein the case of Sections 5.01(d)(i) and (ii) hereof, under this Indenture Sections 5.01(a)(ii) and its Note Guarantee pursuant 5.01(a)(v) hereof will be complied with. Sections 5.01(a)(iii), 5.01(a)(iv) and 5.01(b)(ii) hereof will not apply to a supplemental indenture reasonably satisfactory any merger or consolidation of the Issuer or any Guarantor with or into an Affiliate solely for the purpose of reincorporating the Issuer or such Guarantor in another jurisdiction. This Section 5.01 will not apply to the Trustee; or (b) such transfer does not violate any transaction undertaken in accordance with Section 4.115.03 hereof.

Merger, Consolidation or Sale of Assets. (a) The Issuer shall not will not, directly or indirectly: (1) consolidate, amalgamate consolidate or merge with or into another Person (whether or not it the Issuer is the surviving corporation); or (2) sell, assign, lease, transfer, convey or otherwise dispose of all or substantially all of its the properties or assets, assets of the Issuer and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless: (1) either: : (a) the Issuer is the surviving corporation; or or (b) the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the Issuer) or to which such sale, assignment, lease, transfer, conveyance or other disposition has been made (the “Surviving PersonEntity”) is a Person corporation, partnership, limited liability company or other business organization organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if such Surviving Person is not a corporation, a Restricted Subsidiary that is a corporation shall become a co-obligor of the Notes pursuant to a supplemental indenture reasonably satisfactory to the Trustee; (2) the Surviving Person (if other than the Issuer) Entity expressly assumes all the obligations of the Issuer under the Notes and Notes, this Indenture Indenture, if in effect, pursuant to a agreements, supplemental indenture reasonably satisfactory indentures or other documents, as required, and shall expressly assume all the obligations of the Issuer under the applicable Notes Collateral Documents and shall cause such amendments, supplements and other instruments to be executed, filed and recorded in such jurisdictions as may be required by applicable law to preserve and protect the Liens on the Collateral owned by or transferred to the TrusteeSurviving Entity, together with such financing statements or comparable documents as may be required to perfect any security interests in such Collateral which may be perfected by the filing of a financing statement or similar document under the Uniform Commercial Code or other similar statute or regulation of the relevant states or jurisdictions; (3) immediately after such transaction, no Default or Event of Default existsshall have occurred and be continuing; (4) any of the following is true: (a) Issuer or the Surviving Entity would, on the date of 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, the Issuer, or the Surviving Person, would either (A) be permitted to incur at least $1.00 of additional Indebtedness pursuant to Section 4.10(a); (b) the Fixed Charge Coverage Ratio test set forth in Section 3.2(a) or (B) have a Fixed Charge Coverage Ratio of not less than the Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, would be greater than or equal to the actual Fixed Charge Coverage Ratio of the Issuer immediately prior to such transaction; or (c) the Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer merger, sale, assignment, transfer, lease, conveyance or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer immediately prior to such transactionother disposition; and (5) if the Issuer is not the surviving corporation, the Issuer shall have delivered to the Trustee and the Notes Collateral Agent an Officer’s Certificate and an Opinion of Counsel Counsel, each stating that such consolidation, merger or amalgamation, or sale, assignment, lease, transfer, conveyance or other disposition transfer and such supplemental indenture, indenture and other documents or instruments (if any, ) comply with this Indenture and constitutes the legal, valid Notes Collateral Documents and an Opinion of Counsel stating that such supplemental indenture and other document or instrument (if any) is a legal and binding obligation agreement enforceable against the Successor Company; provided that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact. In addition, the Issuer will not, directly or indirectly, lease all or substantially all of the properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person. This “Merger, Consolidation or Sale of Assets” covenant will not apply to: (1) a merger of the Issuer enforceable against it with a Restricted Subsidiary solely for the purpose of reincorporating the Issuer in accordance with its terms.another jurisdiction; or (b2) Sections 5.01(a)(1any consolidation or merger, or any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Issuer and any Restricted Subsidiaries or between or among any Restricted Subsidiaries; provided that in each case of the immediately preceding clauses (1) through and (5) above and Section 5.01(d)(1) shall not apply to2), either: (a) any Restricted Subsidiary of the Issuer merging, amalgamating or consolidating with or into is the Issuer or another Restricted Subsidiarysurviving corporation in such transaction; or (b) the transfer of assets between Person formed by or among surviving any such consolidation or merger (if other than the Issuer’s Restricted Subsidiaries, ) or from any of the Issuer’s Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3), (4) and (5) above shall not apply to the which a sale, assignment, transfer, conveyance, transferlease, lease or other disposition of all or substantially all of the properties or assets of the Issuer to an Affiliate incorporated has been made is treated for U.S. federal income tax purposes as a corporation organized or organized solely for existing under the purpose laws of reincorporating or reorganizing the Issuer in another United States, any state in of the United States and/or for or the sole purpose District of forming or collapsing a holding company structureColumbia. (cb) The Surviving Person shall succeed to, and be substituted for, and may exercise every right and power of the Issuer under this Indenture. In the case of a lease, however, the Issuer shall not be released from any of the obligations or covenants under this Indenture. (d) Unless the Note Guarantee of the applicable Subsidiary Guarantor is permitted to be released in connection with such transaction as described in Section 4.16 or Section 10.06, such Subsidiary A Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or amalgamate or merge with or into (whether or not it such Guarantor or Issuer is the surviving Person) another Person, other than the Issuer or another Subsidiary Guarantor, unless: (1) immediately after giving effect to that transaction, no Default or Event of Default exists; and (2) either: (aA) the Person Surviving Entity is a corporation, limited liability company, partnership, limited partnership, trust or other entity organized or existing under the laws of the United States, any state of the United States or the District of Columbia or the jurisdiction in which such Guarantor is organized or existing prior to the transaction (such Guarantor or such Person, as the case may be, being herein called the “Successor Guarantor”) and the Surviving Entity (if other than the Issuer or a Subsidiary such Guarantor) acquiring expressly assumes all the property obligations of the Guarantor under the Notes and this Indenture pursuant to a supplemental indenture and shall expressly assume all the obligations of the Guarantor under the applicable Notes Collateral Documents and shall cause such amendments, supplements and other instruments to be executed, filed and recorded in any such sale or disposition or jurisdictions as may be required by applicable law to preserve and protect the Person (if other than Liens on the Issuer or a Subsidiary Guarantor) formed Collateral owned by or surviving transferred to the Surviving Entity, together with such financing statements or comparable documents as may be required to perfect any security interests in such consolidation Collateral which may be perfected by the filing of a financing statement or amalgamation similar document under the UCC or merger other similar statute or regulation of the relevant states or jurisdictions any assumes all the obligations of that Subsidiary Guarantor, as applicable, Guarantor under this Indenture and its Note Guarantee pursuant to a supplemental indenture reasonably satisfactory to the Trusteeindenture; or (bB) such transfer does consolidation or merger is not violate Section 4.11prohibited under this Indenture. The Successor Guarantor, if other than such Guarantor, will succeed to, and be substituted for, such Guarantor under this Indenture, such Guarantor’s Note Guarantee and the Notes Collateral Documents to which such Guarantor is a party and such Guarantor will automatically be released and discharged from its obligations under this Indenture, such Guarantor’s Note Guarantee and the Notes Collateral Documents to which such Guarantor is a party. Notwithstanding the foregoing, any Guarantor may (i) consolidate or merge with or into or sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets to another Guarantor or the Issuer, (ii) consolidate or merge with or into the Issuer or an Affiliate of the Issuer solely for the purpose of reincorporating or reorganizing such Guarantor in the United States, any state or territory thereof or the District of Columbia, (iii) convert into a corporation, partnership, limited partnership, limited liability company, trust or other entity organized or existing under the laws of the jurisdiction of organization of such Guarantor or a jurisdiction in the United States, any state or territory thereof or the District of Columbia or (iv) liquidate or dissolve or change its legal form if the Board of Directors of the Issuer or the senior management of the Issuer determines in good faith that such action is in the best interests of the Issuer and is not materially disadvantageous to the Holders, in each case, without regard to the requirements set forth in the preceding paragraph.

Merger, Consolidation or Sale of Assets. (a) The Issuer shall not will not, directly or indirectly: (1) consolidate, amalgamate consolidate or merge with or into another Person (whether or not it the Issuer is the surviving corporation); ) or (2) sell, assign, lease, transfer, convey or otherwise dispose of all or substantially all of the properties and assets of the Issuer and its properties or assets, Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless: (1i) either: : (aA) the Issuer is the surviving corporation; or or (bB) the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the Issuer) or to which such sale, assignment, lease, transfer, conveyance or other disposition has will have been made (the “Surviving Person”1) is a Person organized or existing under the laws of the United States, any state of the United States thereof or the District of Columbia; provided that if such Surviving Person is not a corporation, a Restricted Subsidiary that is a corporation shall become a co-obligor of the Notes pursuant to a supplemental indenture reasonably satisfactory to the Trustee; Columbia and (2) the Surviving Person (if other than the Issuer) assumes all the obligations of the Issuer under the Notes and Notes, this Indenture and the Registration Rights Agreement pursuant to a supplemental indenture agreements reasonably satisfactory to the Trustee; (3ii) immediately after giving effect to such transaction, no Default or Event of Default exists; (4iii) any of the following is true: immediately after giving effect to such transaction on a pro forma basis, (a) on the date of Issuer or the Person formed by or surviving any such transaction after giving pro forma effect thereto and any related financing transactions as consolidation or merger (if the same had occurred at the beginning of the applicable four-quarter period, other than the Issuer), or the Surviving Personto which such sale, would assignment, transfer, conveyance or other disposition will have been made will be permitted to incur Incur at least $1.00 of additional Indebtedness pursuant to under Section 4.10(a); 4.09(a) or (b) the Fixed Charge Coverage Ratio immediately after such transactions would be higher than prior to such transaction; (iv) each Guarantor, unless such Guarantor is the Person with which the Issuer has entered into a transaction under this covenant, will have by amendment to its Note Guarantee confirmed that its Note Guarantee will apply to the obligations of the Issuer or the Surviving Person, after giving pro forma effect to such transaction surviving Person in accordance with the Notes and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, would be greater than or equal to the actual Fixed Charge Coverage Ratio of the Issuer immediately prior to such transaction; or (c) the Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer immediately prior to such transactionthis Indenture; and (5v) the Issuer shall have delivered delivers to the Trustee an Officer’s Officers’ Certificate (attaching the arithmetic computation to demonstrate compliance with clause (iii) above, upon which the Trustee is entitled to rely without independent verification) and an Opinion of Counsel Counsel, in each case stating that such consolidationtransaction and such agreement complies with this covenant and that all conditions precedent provided for herein relating to such transaction have been complied with. (b) In addition, merger the Issuer and its Restricted Subsidiaries may not, directly or amalgamationindirectly, lease all or substantially all of the properties or assets of the Issuer and its Restricted Subsidiaries considered as one enterprise, in one or more related transactions, to any other Person. Clauses (ii), (iii) and (iv) of Section 5.01(a) will not apply (1) to any merger, consolidation or sale, assignment, lease, transfer, conveyance or other disposition and such supplemental indenture, if any, comply with this Indenture and constitutes the legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms. (b) Sections 5.01(a)(1) through (5) above and Section 5.01(d)(1) shall not apply to: (a) any Restricted Subsidiary of the Issuer merging, amalgamating or consolidating with or into the Issuer or another Restricted Subsidiary; or (b) the transfer of assets between or among the Issuer’s Restricted Subsidiaries, or from Issuer and any of the Issuer’s its Restricted Subsidiaries to or (2) if, in the Issuer. Sections 5.01(a)(3), (4) and (5) above shall not apply to the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all good faith determination of the assets Board of the Issuer to an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing the Issuer in another state in the United States and/or for Directors, whose determination is evidenced by a Board Resolution, the sole purpose of forming or collapsing a holding company structurethe transaction is to change the jurisdiction of incorporation of the Issuer. (c) The Surviving Person foregoing shall succeed to, and be substituted for, and may exercise every right and power not apply to (1) any transfer of assets by the Issuer under this Indenture. In the case to any Guarantor, (2) any transfer of assets among Guarantors or (3) any transfer of assets by a lease, however, the Issuer shall Restricted Subsidiary that is not be released from any of the obligations or covenants under this Indenture. a Guarantor to (d) Unless the Note Guarantee of the applicable Subsidiary Guarantor is permitted to be released in connection with such transaction as described in Section 4.16 or Section 10.06, such Subsidiary Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or amalgamate or merge with or into (whether or not it is the surviving Personx) another Person, other than Restricted Subsidiary that is not a Guarantor or (y) the Issuer or another Subsidiary any Guarantor, unless: (1) immediately after giving effect to that transaction, no Default or Event of Default exists; and (2) either: (a) the Person (if other than the Issuer or a Subsidiary Guarantor) acquiring the property in any such sale or disposition or the Person (if other than the Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation or merger assumes all the obligations of that Subsidiary Guarantor, as applicable, under this Indenture and its Note Guarantee pursuant to a supplemental indenture reasonably satisfactory to the Trustee; or (b) such transfer does not violate Section 4.11.

Merger, Consolidation or Sale of Assets. (a) The Issuer shall Parent will not directly or indirectly: (1) consolidateamalgamate, amalgamate consolidate or merge with or into another Person (whether or not it Parent is the Person formed by or surviving corporationany such amalgamation, consolidation or merger); or (2) sell, assign, lease, transfer, convey or otherwise dispose of all or substantially all of its the properties or assets, assets of Parent and the Restricted Subsidiaries taken as a whole, in each case, in one transaction or more a series of related transactions, including by way of liquidation or dissolution, to another Person, unless: (1) either: (a) the Issuer is the surviving corporation; or (b) the Person formed by or surviving any such consolidationamalgamation, amalgamation consolidation or merger (if other than the Issuer) or to which such sale, assignment, lease, transfer, conveyance or other disposition has been made (the “Surviving Person”"Successor Parent") is (if other than Parent) a Person organized or existing under the laws of a Permitted Jurisdiction so long as, if the Successor Parent is organized or existing under the laws of a Permitted Jurisdiction other than the Republic of Xxxxxxxx Islands, the United StatesStates of America, any state of the United States or the District of Columbia; provided that if , neither the laws of any such Surviving Person is not jurisdiction nor any such transaction would have a corporation, a Restricted Subsidiary that is a corporation shall become a co-obligor material adverse effect on the rights of the Notes pursuant Holders (including with respect to a supplemental indenture reasonably satisfactory to the TrusteeCollateral); (2) the Surviving Person Successor Parent (if other than the IssuerParent) assumes all the obligations of the Issuer Parent under the Notes Note Guarantees and the other Obligations under this Indenture and the Collateral Agreements pursuant to a supplemental indenture reasonably satisfactory to the Trusteeor an amendment thereto, as applicable; (3) immediately before and after giving effect to such transaction, no Default or Event of Default existsshall have occurred and be continuing; (4) except with respect to a transaction solely between or among Parent and any of the following is true: (a) on the date of such transaction Restricted Subsidiaries, immediately after giving pro forma effect thereto and to such transaction, any related financing transactions and the use of proceeds therefrom and treating any Indebtedness that becomes an obligation of Parent or any of the Restricted Subsidiaries as if a result of such transaction as having been Incurred by Parent or such Restricted Subsidiary, as the same had occurred case may be, at the beginning time of the applicable four-quarter periodtransaction, the Issuer, Parent or the Surviving Person, Successor Parent (if other than Parent) would be permitted to incur Incur at least $1.00 of additional Indebtedness pursuant to Section 4.10(a); (b) the Fixed Charge Consolidated Interest Coverage Ratio test set forth in clause (a) of the Issuer or the Surviving Person, after giving pro forma effect to such transaction Section 4.08 ("Incurrence of Indebtedness and any related financing transactions as if the same had occurred at the beginning Issuance of the applicable four-quarter period, would be greater than or equal to the actual Fixed Charge Coverage Ratio of the Issuer immediately prior to such transaction; or (c) the Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer immediately prior to such transactionPreferred Stock"); and (5) the Issuer shall have delivered Company delivers to the Trustee an Officer’s Officers' Certificate and an Opinion of Counsel Counsel, in each case, stating that such amalgamation, consolidation, merger or transfer and such supplemental indenture or amendment comply with this covenant. (b) In addition, the Company will not, directly or indirectly: (1) amalgamate, consolidate or merge with or into another Person (whether or not the Company is the Person formed by or surviving any such amalgamation, consolidation or merger); or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and the Company Subsidiary Guarantors taken as a whole, in each case, in one transaction or a series of related transactions, including by way of liquidation or dissolution, to another Person, unless: (i) the Person formed by or surviving any such amalgamation, consolidation or merger or to which such sale, assignment, lease, transfer, conveyance or other disposition has been made (the "Successor Company") is a Person organized or existing under the laws of a Permitted Jurisdiction so long as, if the Successor Company is organized or existing under the laws of a Permitted Jurisdiction other than the Republic of Xxxxxxxx Islands, the United States of America, any state of the United States or the District of Columbia, neither the laws of any such jurisdiction nor any such transaction would have a material adverse effect on the rights of the Holders (including with respect to Collateral); (ii) the Successor Company (if other than the Company) assumes all the obligations of the Company under the Notes and the other Obligations under this Indenture and the Collateral Agreements pursuant to a supplemental indenture or an amendment thereto, as applicable (it being agreed that if the Company merges with or into Parent, Parent must assume all such obligations of the Company); provided that, if such Person is a limited liability company or a limited partnership, then the Company or such Person shall have the Notes assumed or issued, on a joint and several basis, with a corporation in which it owns 100% of the Equity Interests; (iii) immediately before and after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; and (iv) the Company delivers to the Trustee an Officers' Certificate and Opinion of Counsel, in each case, stating that such amalgamation, consolidation, merger or transfer and such supplemental indenture, if any, indenture or amendment comply with this Indenture covenant. The Successor Parent or Successor Company, as applicable, will be the successor to Parent or the Company, as applicable, and constitutes the legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms. (b) Sections 5.01(a)(1) through (5) above and Section 5.01(d)(1) shall not apply to: (a) any Restricted Subsidiary of the Issuer merging, amalgamating or consolidating with or into the Issuer or another Restricted Subsidiary; or (b) the transfer of assets between or among the Issuer’s Restricted Subsidiaries, or from any of the Issuer’s Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3), (4) and (5) above shall not apply to the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the assets of the Issuer to an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing the Issuer in another state in the United States and/or for the sole purpose of forming or collapsing a holding company structure. (c) The Surviving Person shall succeed to, and be substituted for, for and may exercise every right and power of of, Parent or the Issuer under this Indenture. In the case of a leaseCompany, howeveras applicable, the Issuer shall not be released from any of the obligations or covenants under this Indenture. (dc) Unless Parent and the Note Guarantee of the applicable Subsidiary Company will not permit any Guarantor is permitted (other than Parent) to be released in connection with such transaction as described in Section 4.16 or Section 10.06, such Subsidiary Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or amalgamate or merge with or into (whether or not it such Guarantor is the surviving Person) ), another Person, Person other than the Issuer Company or another Subsidiary Guarantor, unless: (1i) immediately after giving effect to that transaction, no Default or Event of Default exists; and (2ii) either: (a) (x) the Guarantor is the surviving Person or (y) the Person (if other than the Issuer or a Subsidiary Guarantor) acquiring the property in any such sale or disposition or the Person (if other than the Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation merger is a Person organized or merger existing under the laws of a Permitted Jurisdiction so long as, if such Person is organized or existing under the laws of a Permitted Jurisdiction other than the Republic of Xxxxxxxx Islands, the United States of America, any state of the United States or the District of Columbia, neither the laws of any such jurisdiction nor any such transaction would have a material adverse effect on the rights of the Holders (including with respect to Collateral) and such Person assumes all the obligations of that Subsidiary Guarantor, as applicable, Guarantor under this Indenture and its Note Guarantee pursuant to a supplemental indenture reasonably and amendments to the Collateral Agreements satisfactory to the Trustee; or (b) the Net Proceeds of such transfer does not violate sale or other disposition or consolidation or merger are applied in accordance with the applicable provisions of this Indenture and the Collateral Agreements, provided that such sale, transfer, merger or consolidation is subject to compliance with Section 4.114.19 ("Offer to Repurchase Upon Change of Control"), Section 4.20 ("Asset Sales Other than a Drilling Unit"), Section 4.21 ("Drilling Unit Sales") and Section 5.01 ("Merger, Consolidation or Sale of Assets").

Merger, Consolidation or Sale of Assets. (a) The Issuer shall not Borrower will not, directly or indirectly: (1i) consolidate, amalgamate consolidate or merge with or into another Person (whether or not it is the surviving corporation)Person; or (2ii) sell, assign, lease, transfer, convey or otherwise dispose of all or substantially all of its properties or assets, taken as assets (determined on a whole, consolidated basis for the Borrower and its Restricted Subsidiaries) in one or more related transactions, transactions to another Person, unless: (1i) either: (aA) the Issuer Borrower is the surviving corporationentity; or (bB) the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the IssuerBorrower) or to which such sale, assignment, lease, transfer, conveyance or other disposition has been made (the “Surviving Person”) is a Person corporation, partnership or limited liability company organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if such Surviving Person is not a corporation, a Restricted Subsidiary that is a corporation shall become a co-obligor of the Notes pursuant to a supplemental indenture reasonably satisfactory to the Trustee; (2ii) the Surviving Person formed by or surviving any such consolidation or merger (if other than the IssuerBorrower) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Issuer Borrower, as the case may be, under the Notes and this Indenture Agreement pursuant to a supplemental indenture agreements reasonably satisfactory to the TrusteeAdministrative Agent; (3iii) immediately after such transaction, no Default or Event of Default exists; (4) any of the following is true:; and (a) the Borrower or the Person formed by or surviving any such consolidation or merger (if other than the Borrower), or to which such sale, assignment, transfer, conveyance or other disposition has been made would, on the date of 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, the Issuer, or the Surviving Person, would period be permitted to incur at least $1.00 of additional Indebtedness pursuant to Section 4.10(a);9.01(a) hereof; or (b) the Fixed Charge Coverage Ratio of for the Issuer or successor entity and its Restricted Subsidiaries would not be less than such ratio for the Surviving Person, after giving pro forma effect to such transaction Borrower and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, would be greater than or equal to the actual Fixed Charge Coverage Ratio of the Issuer its Restricted Subsidiaries immediately prior to such transaction. In addition, the Borrower will not, directly or indirectly, lease all or substantially all of the properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person. This Section 9.14 will not apply to: (1) a merger of the Borrower with an Affiliate solely for the purpose of reincorporating the Borrower in another jurisdiction; or (c2) the Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer any consolidation or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer immediately prior to such transaction; and (5) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating that such consolidation, merger or amalgamationmerger, or any sale, assignment, lease, transfer, conveyance conveyance, lease or other disposition and such supplemental indenture, if any, comply with this Indenture and constitutes the legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms. (b) Sections 5.01(a)(1) through (5) above and Section 5.01(d)(1) shall not apply to: (a) any Restricted Subsidiary of the Issuer merging, amalgamating or consolidating with or into the Issuer or another Restricted Subsidiary; or (b) the transfer of assets between or among the Issuer’s Borrower and its Restricted Subsidiaries, or from any of the Issuer’s Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3), (4) and (5) above shall not apply to the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the assets of the Issuer to an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing the Issuer in another state in the United States and/or for the sole purpose of forming or collapsing a holding company structure. (c) The Surviving Person shall succeed to, and be substituted for, and may exercise every right and power of the Issuer under this Indenture. In the case of a lease, however, the Issuer shall not be released from any of the obligations or covenants under this Indenture. (d) Unless the Note Guarantee of the applicable Subsidiary Guarantor is permitted to be released in connection with such transaction as described in Section 4.16 or Section 10.06, such Subsidiary Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or amalgamate or merge with or into (whether or not it is the surviving Person) another Person, other than the Issuer or another Subsidiary Guarantor, unless: (1) immediately after giving effect to that transaction, no Default or Event of Default exists; and (2) either: (a) the Person (if other than the Issuer or a Subsidiary Guarantor) acquiring the property in any such sale or disposition or the Person (if other than the Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation or merger assumes all the obligations of that Subsidiary Guarantor, as applicable, under this Indenture and its Note Guarantee pursuant to a supplemental indenture reasonably satisfactory to the Trustee; or (b) such transfer does not violate Section 4.11.

Merger, Consolidation or Sale of Assets. (a) The Issuer Issuers shall not not, directly or indirectly: (1) consolidate, amalgamate consolidate or merge with or into another Person (into, whether or not it an Issuer is the surviving corporation); , or (2) sell, assign, lease, transfer, convey or otherwise dispose of all or substantially all of its the Issuers' properties or assets, taken as a whole, assets in one or more related transactions, to another Person, Person unless: (1) either: (a) the an Issuer is the surviving corporation; or (b) corporation or the Person formed by or surviving any such consolidationthe consolidation or merger, amalgamation or merger (if other than the an Issuer) , or to which such the sale, assignment, lease, transfer, conveyance or other disposition has been is made (the “Surviving Person”) is a Person organized or existing under the laws of the United States, States or any state of the United States or the District of Columbia; provided that if such Surviving Person is not a corporation, a Restricted Subsidiary that is a corporation shall become a co-obligor of the Notes pursuant to a supplemental indenture reasonably satisfactory to the TrusteeBritish Virgin Islands, Cayman Islands, The Netherlands, Ireland, Jersey or Luxembourg; (2) the Surviving Person (formed by or surviving the consolidation or merger, if other than an Issuer, or the Issuer) Person to which the sale, assignment, transfer, conveyance or other disposition is made assumes all the obligations of the Issuer Issuers' obligations under the Notes and the Indenture and this First Supplemental Indenture pursuant to a supplemental indenture Supplemental Indenture in a form reasonably satisfactory to the Trustee; (3) immediately before and after such transaction, the transaction no Default or Event of Default existswill have occurred; (4) any in the event that the continuing Person is incorporated in a jurisdiction other than under the laws of the following is true: United States or any state of the United States or the District of Columbia: (a) on the date Issuers deliver to the Trustee an opinion of such transaction after giving pro forma effect thereto counsel stating that the obligations of the continuing person under the Indenture and any related financing transactions as if this First Supplemental Indenture are enforceable under the laws of the new jurisdiction of its incorporation to the same had occurred at extent as the beginning of Issuers' obligations under the applicable four-quarter period, Indenture and this First Supplemental Indenture immediately prior to the Issuer, or the Surviving Person, would be permitted to incur at least $1.00 of additional Indebtedness pursuant to Section 4.10(a); transaction; (b) the Fixed Charge Coverage Ratio continuing Person agrees in writing to submit to jurisdiction and appoints an agent for the service of the Issuer or the Surviving Personprocess, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, would be greater than or equal each under terms substantially similar to the actual Fixed Charge Coverage Ratio of terms contained in the Issuer immediately prior Indenture and this First Supplemental Indenture with respect to such transactionthe Issuers; or (c) the Indebtedness continuing Person agrees in writing to Consolidated Tangible Net Worth Ratio pay Additional Amounts with respect to any withholding tax imposed by the country of the Issuer continuing Person's organization or the Surviving Personany political subdivision thereof, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer immediately prior to such transaction; and (5) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating that such consolidation, merger or amalgamation, or sale, assignment, lease, transfer, conveyance or other disposition and such supplemental indenture, if Additional Amounts will relate to any, comply with this Indenture and constitutes the legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms. (b) Sections 5.01(a)(1) through (5) above and Section 5.01(d)(1) shall not apply to: (a) any Restricted Subsidiary of the Issuer merging, amalgamating or consolidating with or into the Issuer or another Restricted Subsidiary; or (b) the transfer of assets between or among the Issuer’s Restricted Subsidiaries, or from any of the Issuer’s Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3), (4) and (5) above shall not apply to the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the assets of the Issuer to an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing the Issuer in another state in the United States and/or for the sole purpose of forming or collapsing a holding company structure. (c) The Surviving Person shall succeed to, and be substituted for, and may exercise every right and power of the Issuer under this Indenture. In the case of a lease, however, the Issuer shall not be released from any of the obligations or covenants under this Indenture. (d) Unless the Note Guarantee of the applicable Subsidiary Guarantor is permitted to be released in connection with such transaction as described in Section 4.16 or Section 10.06, such Subsidiary Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or amalgamate or merge with or into (whether or not it is the surviving Person) another Person, other than the Issuer or another Subsidiary Guarantor, unless: (1) immediately after giving effect to that transaction, no Default or Event of Default exists; and (2) either: (a) the Person (if other than the Issuer or a Subsidiary Guarantor) acquiring the property in any such sale or disposition or the Person (if other than the Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation or merger assumes all the obligations of that Subsidiary Guarantor, as applicable, under this Indenture and its Note Guarantee pursuant to a supplemental indenture reasonably satisfactory to the Trustee; or (b) such transfer does not violate Section 4.11.

Merger, Consolidation or Sale of Assets. (a) The Issuer shall not Borrower will not, directly or indirectly: (1a) consolidate, amalgamate consolidate or merge with or into another Person (whether or not it the Borrower is the surviving corporation); or (2b) sell, assign, lease, transfer, convey or otherwise dispose of all or substantially all of its the properties or assets, assets of the Borrower and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; unless, unlesssubject to Section 9.22: (1i) either: either (aA) the Issuer Borrower is the surviving corporation; or corporation or (bB) the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the IssuerBorrower) or to which such sale, assignment, lease, transfer, conveyance or other disposition has been made (the “Surviving Person”) is a Person corporation, partnership or limited liability company organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if such Surviving Person is not a corporation, a Restricted Subsidiary that is a corporation shall become a co-obligor of the Notes pursuant to a supplemental indenture reasonably satisfactory to the Trustee; (2ii) the Surviving Person formed by or surviving any such consolidation or merger (if other than the IssuerBorrower) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Issuer Borrower under the Notes and this Indenture Loan Documents pursuant to a supplemental indenture joinder agreements or other documents and agreements reasonably satisfactory to the TrusteeAdministrative Agent; (3iii) immediately after such transaction, no Default or Event of Default exists;; and (4A) the Borrower or the Person formed by or surviving any of such consolidation or merger (if other than the following is true: (a) Borrower), or to which such sale, assignment, transfer, conveyance or other disposition has been made will, on the date of such transaction after giving pro forma effect thereto and to any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, the Issuer, or the Surviving Person, would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the provisions of Section 4.10(a); 6.01(a) or (bB) the Fixed Charge Coverage Ratio of the Issuer Borrower or the Surviving Person, Person formed by or surviving any such consolidation or merger (if other than the Borrower) is greater after giving pro forma effect to such transaction consolidation or merger and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, would be greater period than or equal to the Borrower’s actual Fixed Charge Coverage Ratio of the Issuer immediately prior to such transaction; or (c) the Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer immediately prior to such transaction; and (5) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating that such consolidation, merger or amalgamation, or sale, assignment, lease, transfer, conveyance or other disposition and such supplemental indenture, if any, comply with this Indenture and constitutes the legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms. (b) Sections 5.01(a)(1) through (5) above and Section 5.01(d)(1) shall not apply to: (a) any Restricted Subsidiary of the Issuer merging, amalgamating or consolidating with or into the Issuer or another Restricted Subsidiary; or (b) the transfer of assets between or among the Issuer’s Restricted Subsidiaries, or from any of the Issuer’s Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3), (4) and (5) above shall not apply to the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the assets of the Issuer to an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing the Issuer in another state in the United States and/or for the sole purpose of forming or collapsing a holding company structureperiod. (c) The Surviving Person shall succeed to, and be substituted for, and may exercise every right and power of the Issuer under this Indenture. In the case of a lease, however, the Issuer shall not be released from any of the obligations or covenants under this Indenture. (d) Unless the Note Guarantee of the applicable Subsidiary Guarantor is permitted to be released in connection with such transaction as described in Section 4.16 or Section 10.06, such Subsidiary Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or amalgamate or merge with or into (whether or not it is the surviving Person) another Person, other than the Issuer or another Subsidiary Guarantor, unless: (1) immediately after giving effect to that transaction, no Default or Event of Default exists; and (2) either: (a) the Person (if other than the Issuer or a Subsidiary Guarantor) acquiring the property in any such sale or disposition or the Person (if other than the Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation or merger assumes all the obligations of that Subsidiary Guarantor, as applicable, under this Indenture and its Note Guarantee pursuant to a supplemental indenture reasonably satisfactory to the Trustee; or (b) such transfer does not violate Section 4.11.

Merger, Consolidation or Sale of Assets. (a) The Issuer shall not will not, directly or indirectly: (1) consolidate, amalgamate consolidate or merge with or into another Person (whether or not it the Issuer is the surviving corporation); , or (2) sell, assign, transfer, lease, transfer, convey or otherwise dispose of all or substantially all of its the properties or assets, assets of the Company and its Subsidiaries which are Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless: (1i) either: : (aA) the Issuer is the surviving corporation; or or (bB) the Person formed by or surviving any such consolidation, amalgamation consolidation or merger (if other than the Issuer) or to which such sale, assignment, transfer, lease, transfer, conveyance or other disposition has been made (the “Surviving Person”) is a Person an entity organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if such Surviving Person is not a corporation, a Restricted Subsidiary that is a corporation shall become a co-obligor of the Notes pursuant to a supplemental indenture reasonably satisfactory to the TrusteePermitted Jurisdiction; (2ii) the Surviving 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 has been made assumes (A) by a Supplemental Indenture entered into with the Trustee, all the obligations of the Issuer under the Notes and this Indenture pursuant to a supplemental indenture reasonably satisfactory to and (B) all obligations of the Trustee;Issuer under the Security Documents, (3iii) immediately after such transaction, no Default or Event of Default existsis continuing; (4iv) the Issuer or) or the Person formed by or surviving any of such consolidation or merger (if other than the following is true: (a) Issuer), or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made would, on the date of 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, the Issuer, or the Surviving Person, would be permitted to incur at least $1.00 of additional Indebtedness pursuant to Section 4.10(a); (b) the Fixed Charge Coverage Ratio of the Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, would be greater than or equal to the actual Fixed Charge Coverage Ratio of the Issuer immediately prior to such transaction; or (c) the Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer immediately prior to such transactiontest set forth in Section 4.06(a); and (5v) the Issuer shall have delivered delivers to the Trustee an Officer’s Certificate and an Opinion of Counsel Counsel, in each case, stating that such consolidation, merger or amalgamationtransfer and, or in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with. Clauses (iii) and (iv) of this Section 5.01(a) shall not apply to any sale, assignment, transfer, lease, transfer, conveyance or other disposition and such supplemental indenture, if any, comply with this Indenture and constitutes the legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms. (b) Sections 5.01(a)(1) through (5) above and Section 5.01(d)(1) shall not apply to: (a) any Restricted Subsidiary of the Issuer merging, amalgamating or consolidating with or into the Issuer or another Restricted Subsidiary; or (b) the transfer of assets between or among the Issuer’s Restricted Subsidiaries, or from any of the Issuer’s Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3), (4) and (5) above shall not apply to the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the assets to or merger or consolidation of the Issuer with or into a Guarantor and clause (iv) of this Section 5.01(a) will not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger or consolidation of the Issuer with or into an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing the Issuer in another state in the United States and/or jurisdiction for the sole purpose of forming or collapsing a holding company structuretax reasons. (cb) The Surviving Person shall succeed to, and be substituted for, and may exercise every right and power of the Issuer under this Indenture. In the case of A Guarantor (other than a lease, however, the Issuer shall not be released from any of the obligations or covenants under this Indenture. (d) Unless the Guarantor whose Note Guarantee of the applicable Subsidiary Guarantor is permitted to be released in connection accordance with such transaction the terms of the Note Guarantee and this Indenture, as described provided in Section 4.16 10.03) will not, directly or Section 10.06indirectly: (1) consolidate or merge with or into another Person (whether or not such Guarantor is the surviving corporation), such Subsidiary Guarantor may not sell or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of such Guarantor and its assets toSubsidiaries which are Restricted Subsidiaries taken as a whole, in one or consolidate with or amalgamate or merge with or into (whether or not it is the surviving Person) more related transactions, to another Person, other than the Issuer or another Subsidiary Guarantor, unless: (1i) immediately after giving effect to that transaction, no Default or Event of Default exists; andis continuing; (2ii) either: (aA) the Person (if other than the Issuer or a Subsidiary Guarantor) person acquiring the property in any such sale or disposition or the Person (if other than the Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation or merger (if other than the Guarantor) assumes all the obligations of that Subsidiary Guarantor, as applicable, Guarantor under its Note Guarantee and this Indenture and its Note Guarantee the Security Documents to which such Guarantor is a party, pursuant to a supplemental indenture reasonably satisfactory to the TrusteeSupplemental Indenture; or (bB) such transfer sale, assignment, transfer, lease, conveyance or other disposition of assets does not violate the provisions of this Indenture (including Section 4.114.09); and (iii) the Issuer delivers to the Trustee an Officer’s Certificate and Opinion of Counsel, in each case, stating that such consolidation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with. (c) Notwithstanding the provisions of paragraph (b) above, (x) (a) any Restricted Subsidiary (other than a Guarantor) may consolidate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties and assets to the Issuer or any other Restricted Subsidiary that is not a Guarantor and (b) any Guarantor may consolidate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties and assets of such Guarantor and its Subsidiaries which are Restricted Subsidiaries to another Guarantor and (y) the Issuer or any Guarantor may consolidate or merge with or into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Issuer or such Guarantor, reincorporating the Issuer or such Guarantor in another jurisdiction or changing the legal form of the Issuer or such Guarantor.

Merger, Consolidation or Sale of Assets. (a) The Issuer shall not directly or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not it is the surviving corporation); or (2) sell, assign, lease, transfer, convey or otherwise dispose of all or substantially all of its properties or assets, taken as a whole, in one or more related transactions, to another Person, unless: (1) either: (a) the Issuer is the surviving corporation; or (b) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Issuer) or to which such sale, assignment, lease, transfer, conveyance or other disposition has been made (the “Surviving Person”) is a Person organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided that if such Surviving Person is not a corporation, a Restricted Subsidiary that is a corporation shall become a co-obligor of the Notes pursuant to a supplemental indenture reasonably satisfactory to the Trustee; (2) the Surviving Person (if other than the Issuer) assumes all the obligations of the Issuer under the Notes and this Indenture pursuant to a supplemental indenture agreements reasonably satisfactory to the Trustee; (3) immediately after such transaction, no Default or Event of Default exists; (4) any of the following is true: (a) on the date of 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, the Issuer, or the Surviving Person, would be permitted to incur at least $1.00 of additional Indebtedness pursuant to Section 4.10(a); (b) the Fixed Charge Coverage Ratio of the Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, would be greater than or equal to the actual Fixed Charge Coverage Ratio of the Issuer immediately prior to such transaction; or (c) the Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer immediately prior to such transaction; and (5) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating that such consolidation, merger or amalgamation, or sale, assignment, lease, transfer, conveyance or other disposition and such supplemental indenture, if any, comply with this Indenture and constitutes the legal, valid and binding obligation of the Issuer enforceable against it in accordance with its termsIndenture. (b) Sections 5.01(a)(1) through (5) above and Section 5.01(d)(1) shall not apply to: (a) any Restricted Subsidiary of the Issuer merging, amalgamating or consolidating with or into the Issuer or another Restricted Subsidiary; or (b) the transfer of assets between or among the Issuer’s Restricted Subsidiaries, or from any of the Issuer’s Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3), (4) and (54) above shall not apply to the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the assets of the Issuer to an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing the Issuer in another state in the United States and/or for the sole purpose of forming or collapsing a holding company structure. (c) The Surviving Person shall succeed to, and be substituted for, and may exercise every right and power of the Issuer under this Indenture. In the case of a lease, however, the Issuer shall not be released from any of the obligations or covenants under this Indenture. (d) Unless If there is a Note Guarantee, unless the Note Guarantee of the applicable Subsidiary Guarantor is permitted to be released in connection with such transaction as described in Section 4.16 or Section 10.064.16, such Subsidiary Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or amalgamate or merge with or into (whether or not it is the surviving Person) another Person, other than the Issuer or another Subsidiary Guarantor, unless: (1) immediately after giving effect to that transaction, no Default or Event of Default exists; and (2) either: (a) the Person (if other than the Issuer or a Subsidiary Guarantor) acquiring the property in any such sale or disposition or the Person (if other than the Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation or merger assumes all the obligations of that Subsidiary Guarantor, as applicable, under this Indenture and its Note Guarantee pursuant to a supplemental indenture reasonably satisfactory to the Trustee; or (b) such transfer does not violate Section 4.11. (e) For purposes of this Section 5.01, the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Issuer, which properties and assets, if held by the Issuer instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Issuer on a consolidated basis, shall be deemed to be the disposition of all or substantially all of the properties and assets of the Issuer.

Merger, Consolidation or Sale of Assets. (a) The Issuer shall not will not, directly or indirectly: (1) consolidate, amalgamate amalgamate, merge or merge otherwise combine with or into another Person (whether or not it the Issuer is the surviving corporation); or (2) sell, assign, lease, transfer, convey convey, lease or otherwise dispose of all or substantially all of the assets of the Issuer, in one or more related transactions, to another Person, unless: (i) either: (1) Wind or the Issuer is the surviving or continuing Person; or (2) the Person formed by or surviving any such consolidation, merger, amalgamation or combination (if other than Wind) or to which such sale, assignment, transfer, conveyance or other disposition has been made complies with Section 4.21 prior to and after such transaction and is a Person (in corporate or company form, including substantially similar organizational forms under relevant law) organized or existing under the laws of any member state of the Pre-Expansion European Union, the laws of the United States, any state of the United States or the District of Columbia; (ii) the Person formed by or surviving any such consolidation, merger, amalgamation or combination (if other than the Issuer) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Issuer under the Notes, this Indenture, the Priority Agreement (or any additional intercreditor agreement or priority agreement entered into pursuant to the terms of the Priority Agreement or this Indenture) and the Security Documents pursuant to agreements reasonably satisfactory to the Trustee to which the Issuer is a party other than, to the extent such surviving entity is Wind, the obligations of the Issuer described under Section 4.21; and (iii) immediately after such transaction, no Default or Event of Default exists and the Security Documents and the Liens created on the Collateral (other than, to the extent the surviving entity is Wind, the assignment of any Intercompany Loan; provided that such Intercompany Loan is cancelled or otherwise could have been incurred by Wind at the time of such transaction pursuant to Section 4.09) shall remain in full force and effect, or subject to the satisfaction of the Trustee, shall have been transferred to such surviving entity and shall have been perfected and be in full force and effect or otherwise released in accordance with the terms of this Indenture. (b) Wind will not, directly or indirectly: (1) consolidate, merge, amalgamate or combine with or into another Person (whether or not Wind is the surviving corporation); or (2) sell, assign, transfer, convey, lease or otherwise dispose of all or substantially all of the assets of Wind and its properties or assets, Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless: (i) either: (1) either: (a) the Issuer Wind is the surviving corporationor continuing Person; or or (b2) the Person formed by or surviving any such consolidation, merger, amalgamation or merger combination (if other than the IssuerWind) or to which such sale, assignment, lease, transfer, conveyance conveyance, lease or other disposition has been made (the “Surviving PersonSuccessor Company”) is a Person (in corporate or company form, including substantially similar organizational forms under relevant law) organized or existing under the laws of any member state of the Pre-Expansion European Union, the laws of the United States, any state of the United States or the District of Columbia; provided that ; (ii) the Person formed by or surviving any such consolidation, merger, amalgamation or combination (if other than Wind) or the Person to which such Surviving Person is not a corporationsale, a Restricted Subsidiary that is a corporation shall become a co-obligor assignment, transfer, conveyance, lease or other disposition has been made assumes all the obligations of Wind under any Intercompany Loan, this Indenture, the Note Guarantee, the Priority Agreement (or any additional intercreditor agreement or priority agreement entered into pursuant to the terms of the Notes Priority Agreement or this Indenture) and/or the Security Documents pursuant to a supplemental indenture agreements reasonably satisfactory to the Trustee; (2) the Surviving Person (if other than the Issuer) assumes all the obligations of the Issuer under the Notes and this Indenture pursuant to a supplemental indenture reasonably satisfactory to the Trustee; (3iii) immediately after such transaction, no Default or Event of Default exists;; and (4iv) Wind or the Person formed by or surviving any of the following is true: such consolidation, merger, amalgamation or combination (a) if other than Wind), or to which such sale, assignment, transfer, conveyance, lease or other disposition has been made would, on the date of 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 periodtransactions, the Issuer, or the Surviving Person, would (a) be permitted to incur at least $€1.00 of additional Indebtedness pursuant to the Consolidated Leverage Ratio test set forth in Section 4.10(a); 4.09(a) or (b) the Fixed Charge Coverage have a Consolidated Leverage Ratio of the Issuer or the Surviving Person, after not greater than what such ratio was immediately prior to giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, would be greater than or equal to the actual Fixed Charge Coverage Ratio of the Issuer immediately prior to such transaction; or. (c) the Indebtedness to Consolidated Tangible Net Worth Ratio of In addition, neither the Issuer nor any Guarantor (including Wind) will, directly or the Surviving Person, after giving pro forma effect to such transaction and any related financing transactions as if the same had occurred at the end of the last full fiscal quarter, would be less than or equal to the actual Indebtedness to Consolidated Tangible Net Worth Ratio of the Issuer immediately prior to such transaction; and (5) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating that such consolidation, merger or amalgamation, or sale, assignment, lease, transfer, conveyance or other disposition and such supplemental indenture, if any, comply with this Indenture and constitutes the legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms. (b) Sections 5.01(a)(1) through (5) above and Section 5.01(d)(1) shall not apply to: (a) any Restricted Subsidiary of the Issuer merging, amalgamating or consolidating with or into the Issuer or another Restricted Subsidiary; or (b) the transfer of assets between or among the Issuer’s Restricted Subsidiaries, or from any of the Issuer’s Restricted Subsidiaries to the Issuer. Sections 5.01(a)(3), (4) and (5) above shall not apply to the sale, assignment, conveyance, transferindirectly, lease or other disposition of all or substantially all of the properties and assets of the Issuer it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing the Issuer in another state in the United States and/or for the sole purpose of forming or collapsing a holding company structure. (c) The Surviving Person shall succeed to, and be substituted for, and may exercise every right and power of the Issuer under this Indenture. In the case of a lease, however, the Issuer shall not be released from any of the obligations or covenants under this Indentureother Person. (d) Unless Section 5.01(b)(iv) will not apply to: (i) a merger of Wind with an Affiliate for the Note Guarantee primary purpose of reincorporating Wind, as the applicable case may be, in another jurisdiction for tax reasons; (ii) a Restricted Subsidiary Guarantor is permitted to be released in connection with such transaction as described in Section 4.16 of Wind consolidating with, merging into or Section 10.06selling, such Subsidiary Guarantor may not sell assigning, transferring, conveying, leasing or otherwise dispose disposing of assets to (a) Wind or any Restricted Subsidiary of Wind that is a Guarantor or the Issuer or, (b) with respect to a Restricted Subsidiary of Wind that is not a Guarantor or the Issuer, another Restricted Subsidiary; or (iii) Wind consolidating with, merging into or selling, assigning, transferring, conveying, leasing or otherwise disposing of all or substantially all of its assets toto the Parent or the Parent consolidating with, merging into or consolidate with selling, assigning, transferring, conveying, leasing or amalgamate otherwise disposing of all or merge with or into (whether or not it is the surviving Person) another Person, other than the Issuer or another Subsidiary Guarantor, unless: (1) immediately after giving effect substantially all of its assets to that transaction, no Default or Event of Default exists; and (2) either: (a) the Person (if other than the Issuer or a Subsidiary Guarantor) acquiring the property in Wind. Following any such sale or disposition or merger, any transaction which would have been permitted with the Person (if other than the Issuer or a Subsidiary Guarantor) formed by or surviving any such consolidation or amalgamation or merger assumes all the obligations of that Subsidiary Guarantor, as applicable, under this Indenture and its Note Guarantee pursuant Parent shall be permitted to a supplemental indenture reasonably satisfactory to the Trustee; or (b) such transfer does not violate Section 4.11be undertaken with WIND Telecom S.p.A.