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

Merger, Consolidation or Sale of Substantially All Assets. (a) The Company will not (1) consolidate or merge with or into another Person (regardless of whether the Company is the surviving corporation), convert into another form of entity or continue in another jurisdiction; or (2) directly or indirectly, sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to another Person, unless: (A) either: (i) the Company is the surviving corporation; or (ii) the Person formed by or surviving any such consolidation or merger or resulting from such conversion (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is a corporation, limited liability company or limited partnership organized or existing under the laws of the United States, any state of the United States or the District of Columbia; (B) the Person formed by or surviving any such conversion, consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes and this Indenture (and the Registration Rights Agreement, if any obligations thereunder remain unsatisfied) pursuant to a supplemental indenture; provided that, unless such Person is a corporation, a corporate co-issuer of the Notes will be added to this Indenture by a supplement reasonably satisfactory to the Trustee; (C) immediately after such transaction or transactions, no Default or Event of Default exists; (D) the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition 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) either: (i) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.06(a); or (ii) have a Fixed Charge Coverage Ratio that is not less than the Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries immediately before such transaction; and (E) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, sale, transfer or lease and such supplemental indenture, if any, comply with this Section and that all conditions precedent herein provided for relating to such transaction have been complied with. (b) For purposes of this Section, the sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties or assets of one or more Subsidiaries of the Company, which properties or assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties or assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties or assets of the Company. (c) Notwithstanding the restrictions described in clause (D) of paragraph (a), any Restricted Subsidiary may consolidate with, merge into or dispose of all or part of its properties or assets to the Company, the Company may merge into a Restricted Subsidiary for the purpose of reincorporating the Company in another jurisdiction, and any Restricted Subsidiary may consolidate with, merge into or dispose of all or part of its properties or assets to another Restricted Subsidiary. (d) Upon any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties or assets of the Company in a transaction that is subject to, and that complies with the provisions of, this Section, the successor Person formed by such consolidation or into or with which the Company is merged or to which such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted for the Company (so that from and after the date of such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition, the provisions of this Indenture referring to the “Company” shall refer instead to the successor Person and not to the Company), and may exercise every right and power of the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein and the predecessor Company shall be discharged and released from all Obligations under this Indenture and the Notes; provided, however, that the predecessor Company shall not be released from the obligation to pay the principal of and interest on the Notes in the case of a lease of all or substantially all of the Company’s properties or assets in a transaction that is subject to, and that complies with the provisions of this Section.

Merger, Consolidation or Sale of Substantially All Assets. (a) The Company will Issuer shall not directly or indirectly: (1) consolidate consolidate, amalgamate or merge with or into another Person (regardless of whether the Company or not it is the surviving corporationentity), convert into another form of entity or continue in another jurisdiction; or (2) directly or indirectly, sell, assign, lease, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assetsthe assets of the Issuer and the Restricted Subsidiaries, taken as a whole, in one or more related transactions, to another Person, unless: (A) either: (i) the Company is the surviving corporation; or (ii1) the Person formed by or surviving any such consolidation consolidation, amalgamation or merger or resulting from such conversion (if other than the CompanyIssuer) or to which such sale, assignment, lease, transfer, lease, conveyance or other disposition has been made (the “Surviving Person”) is a Person organized and 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, limited liability company either (x) the Co-Issuer is then a corporation or limited partnership (y) 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) expressly 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 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, 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 immediately prior to such transaction; or (c) the Consolidated Leverage Ratio, 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 Consolidated Leverage Ratio 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. (b) The Co-Issuer shall not directly or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not it is the surviving entity); or (2) sell, assign, lease, transfer, convey or otherwise dispose of all or substantially all of its assets in one or more related transactions, to another Person, unless: (1) (a) concurrently therewith, a corporate wholly owned Restricted Subsidiary organized and existing under the laws of the United States, any state of the United States or the District of Columbia (which may be the surviving Person as a result of such transaction) expressly assumes all the obligations of the Co-Issuer under the Notes and this Indenture pursuant to a supplemental indenture reasonably satisfactory to the Trustee, or (b) after giving effect thereto, at least one obligor on the Notes shall be a corporation organized and existing under the laws of the United States, any state of the United States or the District of Columbia; (B) the Person formed by or surviving any such conversion, consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes and this Indenture (and the Registration Rights Agreement, if any obligations thereunder remain unsatisfied) pursuant to a supplemental indenture; provided that, unless such Person is a corporation, a corporate co-issuer of the Notes will be added to this Indenture by a supplement reasonably satisfactory to the Trustee; (C2) immediately after giving effect to such transaction or transactionstransaction, no Default or Event of Default exists; (D) the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition 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) either: (i) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.06(a); or (ii) have a Fixed Charge Coverage Ratio that is not less than the Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries immediately before such transaction; and (E3) the Company has Co-Issuer shall have delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, mergermerger or amalgamation, conveyance, or sale, transfer assignment, lease, transfer, conveyance or lease other disposition and such supplemental indenture, if any, comply with this Indenture. (c) Unless the Note Guarantee of the applicable Guarantor is permitted to be released and discharged in connection with such transaction as described in Section 10.06(a), such Guarantor shall not, and that the Issuer shall not permit such Guarantor to, directly or indirectly: (1) consolidate, amalgamate or merge with or into another Person (whether or not it is the surviving entity); or (2) sell, assign, lease, transfer, convey or otherwise dispose of all conditions precedent herein provided for relating or substantially all of its assets in one or more related transactions, to another Person (other than the Issuers or another Guarantor) unless: (1) immediately after giving effect to such transaction transaction, no Default or Event of Default exists; and (2) either: (a) (i) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than such Guarantor) or to which such sale, assignment, lease, transfer, conveyance or other disposition has been made (the “Surviving Guarantor”) is a Person organized and existing under the laws of the United States, any state of the United States or the District of Columbia, (ii) the Surviving Guarantor (if other than such Guarantor) expressly assumes all the obligations of such Guarantor under this Indenture and its Note Guarantee pursuant to a supplemental indenture reasonably satisfactory to the Trustee and (iii) the Issuer shall have been complied with.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; or (b) For purposes such transfer does not violate Section 4.11. (d) Notwithstanding the foregoing, (i) clauses (1) through (5) of this SectionSection 5.01(a), clauses (1) through (3) of Section 5.01(b) and clauses (1) and (2) of Section 5.01(c), shall not apply to: (a) any Restricted Subsidiary merging, amalgamating or consolidating with or into the Issuer or another Restricted Subsidiary; or (b) the transfer of assets between or among the Restricted Subsidiaries, or from any of the Restricted Subsidiaries to the Issuer and (ii) clauses (3), (4) and (5) of 5.01(a), Section 5.01(b)(2) and Section 5.01(c)(1) shall not apply to the sale, assignment, conveyance, transfer, lease, conveyance lease or other disposition of all or substantially all of the properties or assets of one or more Subsidiaries of the Company, which properties or assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties or assets of the Company on Issuers or a consolidated basisGuarantor, shall be deemed to be the transfer of all as applicable, to, or substantially all of the properties any merger, amalgamation or assets of the Company. (c) Notwithstanding the restrictions described in clause (D) of paragraph (a)consolidation by an Issuer or Guarantor with or into, any Restricted Subsidiary may consolidate with, merge into an Affiliate incorporated or dispose of all or part of its properties or assets to the Company, the Company may merge into a Restricted Subsidiary organized solely for the purpose of reincorporating the Company or reorganizing such Issuer or Guarantor in another jurisdictionstate in the United States, and the District of Columbia or any Restricted Subsidiary may consolidate with, merge into or dispose territory of all or part of its properties or assets to another Restricted Subsidiary. (d) Upon any consolidation or mergerthe United States, or any sale, assignment, transfer, lease, conveyance or other disposition changing the form of all or substantially all of the properties or assets of the Company in a transaction that is subject to, and that complies with the provisions of, this Section, the successor Person formed by such consolidation or into or with which the Company is merged or to which such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted entity thereof and/or for the Company (so that from and after the date sole purpose of such consolidation, merger, sale, assignment, transfer, lease, conveyance forming or other disposition, the provisions of this Indenture referring to the “Company” shall refer instead to the successor Person and not to the Company), and may exercise every right and power of the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein and the predecessor Company shall be discharged and released from all Obligations under this Indenture and the Notes; provided, however, that the predecessor Company shall not be released from the obligation to pay the principal of and interest on the Notes in the case of collapsing a lease of all or substantially all of the Company’s properties or assets in a transaction that is subject to, and that complies with the provisions of this Sectionholding company structure.

Merger, Consolidation or Sale of Substantially All Assets. (a) The Company will not Neither of the Issuers may (1x) consolidate or merge with or into another Person (regardless of whether the Company such Issuer is the surviving corporationentity), convert into another form of entity or continue in another jurisdiction; or (2y) directly or indirectly, sell, assign, transfer, leaseconvey, convey lease or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to another Person, unless: (1) either: (A) either: (i) the Company such Issuer is the surviving corporationentity of such consolidation or merger; or or (iiB) the Person formed by or surviving any such consolidation or merger or resulting from such conversion (if other than the Companysuch Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is a corporation, limited liability company or limited partnership Person organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided, however, that Finance Corp. may not consolidate or merge with or into any Person other than a corporation satisfying such requirement so long as the Company is not a corporation; (B2) the Person formed by or surviving any such conversion, consolidation or merger (if other than the Companysuch Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made assumes all the obligations of the Company such Issuer under the Notes and this Indenture (and the Registration Rights Agreement, if any obligations thereunder under such agreement remain unsatisfied) pursuant to a supplemental indenture; provided that, unless such Person is a corporation, a corporate co-issuer of the Notes will be added to this Indenture by a supplement indenture or other agreement reasonably satisfactory to the Trustee; (C3) immediately after such transaction or transactionstransaction, no Default or Event of Default exists; (D4) in the case of a transaction involving the Company and not Finance Corp., after giving effect to such transaction and any related financing transactions on a pro forma basis as if the same had occurred at the beginning of the applicable four-quarter period, either (a) the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition 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) either: (i) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.06(a); or 4.09(a) or (iib) have a the Fixed Charge Coverage Ratio that of the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made, is not less equal to or greater than the Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries immediately before such transaction; and (E5) the Company such Issuer has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, mergermerger or disposition and, conveyanceif a supplemental indenture is required, sale, transfer or lease and such supplemental indenture, if any, comply with this Section and that all conditions precedent herein provided for relating to such transaction have been complied withIndenture. (b) For purposes of this SectionNotwithstanding the foregoing, the restrictions set forth in clause (4) of Section 5.01(a) will not apply to (x) any consolidation or merger of the Company with or into one of its Restricted Subsidiaries for any purpose or (y) any sale, assignment, transfer, leaseconveyance, conveyance lease or other disposition of properties or assets of a Restricted Subsidiary (other than Finance Corp.) to the Company or another Restricted Subsidiary that is a Guarantor. (c) Notwithstanding Section 5.01(a), the Company is permitted to reorganize as any other form of entity, provided that: (1) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company 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 the Company under the Notes and this Indenture (and the Registration Rights Agreement, if any obligations thereunder remain unsatisfied) pursuant to a supplemental indenture or other agreement in a form reasonably satisfactory to the Trustee; (4) immediately after such reorganization no Default or Event of Default exists; and (5) such reorganization is not materially adverse to the Holders or Beneficial Owners of the Notes (for purposes of this clause (5), a reorganization will not be considered materially adverse to the Holders or Beneficial Owners of the 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) of the Internal Revenue Code or any similar state or local law). (d) For purposes of this Section 5.01, 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 of the CompanyRestricted Subsidiaries, which properties or assets, if held by the Company instead of such Restricted Subsidiaries, would constitute all or substantially all of the properties or assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties or assets of the Company. (ce) Notwithstanding the restrictions described anything in clause (D) of paragraph (a), any Restricted Subsidiary may consolidate with, merge into or dispose of all or part of its properties or assets this Indenture to the Companycontrary, in the event that the Company may merge into becomes a Restricted Subsidiary for the purpose of reincorporating corporation or the Company in another jurisdiction, and any Restricted Subsidiary may consolidate with, merge into or dispose of all the Person formed by or part of its properties or assets to another Restricted Subsidiary. (d) Upon surviving any consolidation or mergermerger (permitted in accordance with the terms of this Indenture) is a corporation, or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties or assets of Finance Corp. may be merged into the Company in a transaction that is subject to, or it may be dissolved and that complies with the provisions of, this Section, the successor Person formed by such consolidation or into or with which the Company is merged or cease to which such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted for the Company (so that from and after the date of such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition, the provisions of this Indenture referring to the “Company” shall refer instead to the successor Person and not to the Company), and may exercise every right and power of the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein and the predecessor Company shall be discharged and released from all Obligations under this Indenture and the Notes; provided, however, that the predecessor Company shall not be released from the obligation to pay the principal of and interest on the Notes in the case of a lease of all or substantially all of the Company’s properties or assets in a transaction that is subject to, and that complies with the provisions of this Sectionan Issuer.

Merger, Consolidation or Sale of Substantially All Assets. (a) The Company will not Neither of the Issuers may: (1x) consolidate or merge with or into another Person (regardless of whether the Company such Issuer is the surviving corporationentity), convert into another form of entity or continue in another jurisdiction; or (2y) directly or indirectly, sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to another Person, unless: (1) either: (A) either: (i) the Company such Issuer is the surviving corporationentity of such consolidation or merger; or or (iiB) the Person formed by or surviving any such consolidation or merger or resulting from such conversion (if other than the Companysuch Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is a corporation, limited liability company or limited partnership Person organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided, however, that Finance Corp. may not consolidate or merge with or into any Person other than a corporation satisfying such requirement so long as the Company is not a corporation; (B2) the Person formed by or surviving any such conversion, consolidation or merger (if other than the Companysuch Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made assumes all the obligations of the Company such Issuer under the Notes and this Indenture (and the Registration Rights Agreement, if any obligations thereunder remain unsatisfied) pursuant to a supplemental indenture; provided that, unless such Person is a corporation, a corporate co-issuer of the Notes will be added to this Indenture by a supplement indenture or other agreement reasonably satisfactory to the Trustee; (C3) immediately after such transaction or transactionstransaction, no Default or Event of Default exists; (D4) in the case of a transaction involving the Company and not Finance Corp., after giving effect to such transaction and any related financing transactions on a pro forma basis as if the same had occurred at the beginning of the applicable four-quarter period, either (a) the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition 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) either: (i) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.06(a); or 4.09(a) or (iib) have a the Fixed Charge Coverage Ratio that of the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made, is not less equal to or greater than the Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries immediately before such transaction; (5) the Person formed by or surviving any such consolidation or merger (if other than the Company) shall take such action (or agree to take such action) as may be necessary to cause any property or assets that constitute Collateral owned by or transferred to such Person to be subject to a Priority Lien in the manner and to the extent required under the Security Documents, and shall deliver an opinion of counsel as to the enforceability of any amendments, supplements or other instruments with respect to the Security Documents to be executed, delivered, filed and recorded, as applicable, and such other matters as the Trustee or the Collateral Trustee, as applicable, may reasonably request; and (E6) the Company such Issuer has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, mergermerger or disposition and, conveyanceif a supplemental indenture is required, sale, transfer or lease and such supplemental indenture, if any, comply with this Section and that all conditions precedent herein provided for relating to such transaction have been complied withIndenture. (b) For purposes of this SectionNotwithstanding the foregoing, the restrictions set forth in clause (4) of Section 5.01(a) will not apply to (x) any consolidation or merger of the Company with or into one of its Restricted Subsidiaries for any purpose or (y) any sale, assignment, transfer, leaseconveyance, conveyance lease or other disposition of properties or assets of a Restricted Subsidiary (other than Finance Corp.) to the Company or another Restricted Subsidiary that is a Guarantor. (c) Notwithstanding Section 5.01(a), the Company is permitted to reorganize as any other form of entity, provided that: (1) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company 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 the Company under the Notes and this Indenture pursuant to a supplemental indenture or other agreement in a form reasonably satisfactory to the Trustee; (4) immediately after such reorganization no Default or Event of Default exists; and (5) such reorganization is not materially adverse to the Holders or Beneficial Owners of the Notes (for purposes of this clause (5), a reorganization will not be considered materially adverse to the Holders or Beneficial Owners of the 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) of the Internal Revenue Code or any similar state or local law). (d) For purposes of this Section 5.01, 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 of the CompanyRestricted Subsidiaries, which properties or assets, if held by the Company instead of such Restricted Subsidiaries, would constitute all or substantially all of the properties or assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties or assets of the Company. (ce) Notwithstanding the restrictions described anything in clause (D) of paragraph (a), any Restricted Subsidiary may consolidate with, merge into or dispose of all or part of its properties or assets this Indenture to the Companycontrary, in the event that the Company may merge into becomes a Restricted Subsidiary for the purpose of reincorporating corporation or the Company in another jurisdiction, and any Restricted Subsidiary may consolidate with, merge into or dispose of all the Person formed by or part of its properties or assets to another Restricted Subsidiary. (d) Upon surviving any consolidation or mergermerger (permitted in accordance with the terms of this Indenture) is a corporation, or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties or assets of Finance Corp. may be merged into the Company in a transaction that is subject to, or it may be dissolved and that complies with the provisions of, this Section, the successor Person formed by such consolidation or into or with which the Company is merged or cease to which such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted for the Company (so that from and after the date of such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition, the provisions of this Indenture referring to the “Company” shall refer instead to the successor Person and not to the Company), and may exercise every right and power of the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein and the predecessor Company shall be discharged and released from all Obligations under this Indenture and the Notes; provided, however, that the predecessor Company shall not be released from the obligation to pay the principal of and interest on the Notes in the case of a lease of all or substantially all of the Company’s properties or assets in a transaction that is subject to, and that complies with the provisions of this Sectionan Issuer.

Merger, Consolidation or Sale of Substantially All Assets. (a) The Company will Issuer shall not (1) consolidate or merge with or into another Person (regardless of whether the Company is the surviving corporation)into, convert into another form of entity or continue in another jurisdiction; or (2) directly or indirectly, sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, assets (determined on a consolidated basis for the Issuer and its Subsidiaries taken as a whole) in one or more related transactionstransactions to, to another any other Person, unless: (A) either: (i1) the Company Issuer is the surviving corporation; Person or (ii) the Person formed by or surviving any such consolidation or merger or resulting from such conversion (if other than the CompanyIssuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is a corporation, limited liability company or limited partnership an entity organized or and existing under the laws of the United StatesStates of America, any state of the United States or territory thereof or the District of Columbia; and, if such entity is not a corporation, a co-obligor of the Notes is a corporation organized or existing under such laws; (B2) the Person formed by or surviving any such conversion, consolidation or merger (if other than the CompanyIssuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made assumes all the obligations Obligations of the Company under the Notes and this Indenture (and the Registration Rights AgreementIssuer, if any obligations thereunder remain unsatisfied) pursuant to a supplemental indenture; provided that, unless such Person is a corporationunder the Notes, a corporate co-issuer of the Notes will be added to this Indenture by a supplement reasonably satisfactory to and the Trustee;Security Documents; and (C3) immediately after giving effect to such transaction or transactionson a pro forma basis, no Default or Event of Default exists;. (Db) The Note Guarantor may not consolidate with or merge with or into (whether or not the Note Guarantor is the surviving Person) another Person, whether or not affiliated with the Note Guarantor, unless: (1) either: (a) the Company Note Guarantor will be the surviving or continuing Person; or (b) the Person formed by or surviving any such consolidation or merger (if other than the Company)assumes, or to which such saleby supplemental indenture in standard form and substance, 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 all of the applicable four-quarter period) either: (i) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.06(a); or (ii) have a Fixed Charge Coverage Ratio that is not less than the Fixed Charge Coverage Ratio obligations of the Company Note Guarantor under the Guarantee, this Indenture and its Restricted Subsidiaries immediately before such transactionthe Security Documents; and (E2) the Company has delivered immediately after giving effect to such transaction, no Default shall have occurred and be continuing. The Issuer shall deliver to the Trustee prior to the consummation of any proposed transaction an Officers’ Certificate and to the foregoing effect, an Opinion of Counsel, each stating that such consolidation, merger, conveyance, sale, transfer or lease and such supplemental indenture, if any, comply with this Section and that all conditions precedent herein to the proposed transaction provided for relating to such transaction in this Indenture have been complied with. (b) . For purposes of this SectionSection 5.01, the sale, assignment, transfer, lease, conveyance or other disposition transfer of all or substantially all of the properties or and assets of one or more Subsidiaries of the Companyin one or more related transaction to any other Person, which properties or and assets, if held by the Company Issuer instead of such Subsidiaries, would constitute all or substantially all of the properties or and assets of the Company Issuer on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties or and assets of the Company. (c) Notwithstanding the restrictions described in clause (D) of paragraph (a), any Restricted Subsidiary may consolidate with, merge into or dispose of all or part of its properties or assets Issuer to the Company, the Company may merge into a Restricted Subsidiary for the purpose of reincorporating the Company in another jurisdiction, and any Restricted Subsidiary may consolidate with, merge into or dispose of all or part of its properties or assets such Person. This Section 5.01 will not apply to another Restricted Subsidiary. (d) Upon any consolidation or merger, or any sale, assignment, transfer, leaseconveyance, conveyance lease or other disposition of all assets between or substantially all of among the properties or assets of the Company in a transaction that is subject to, Issuer and that complies with the provisions of, this Section, the successor Person formed by such consolidation or into or with which the Company is merged or to which such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted for the Company (so that from and after the date of such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition, the provisions of this Indenture referring to the “Company” shall refer instead to the successor Person and not to the Company), and may exercise every right and power of the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein and the predecessor Company shall be discharged and released from all Obligations under this Indenture and the Notes; provided, however, that the predecessor Company shall not be released from the obligation to pay the principal of and interest on the Notes in the case of a lease of all or substantially all of the Company’s properties or assets in a transaction that is subject to, and that complies with the provisions of this Sectionits Subsidiaries.

Merger, Consolidation or Sale of Substantially All Assets. (a) The Company will not (1) consolidate or merge with or into another Person (regardless of whether the Company is the surviving corporation), convert into another form of entity or continue in another jurisdiction; or (2) , directly or indirectly, sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to another Person, unless: (A) either: (i) the Company is the surviving corporation; or (ii) the Person formed by or surviving any such consolidation or merger or resulting from such conversion (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is a corporation, limited liability company or limited partnership organized or existing under the laws of the United States, any state of the United States or the District of Columbia; (B) the Person formed by or surviving any such conversion, consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes and this the Indenture (and the Registration Rights Agreement, if any obligations thereunder remain unsatisfied) pursuant to a supplemental indentureagreements reasonably satisfactory to the Trustee; provided that, unless such Person is a corporation, a corporate co-issuer of the Notes will be added to this the Indenture by a supplement reasonably satisfactory to the Trustee; (C) immediately after such transaction or transactions, no Default or Event of Default exists; (D) the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition 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) either: (i) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.06(a); or (ii) have a Fixed Charge Coverage Ratio that is not less than the Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries immediately before such transaction; and (E) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, sale, transfer or lease and such supplemental indenture, if any, comply with this Section and that all conditions precedent herein provided for relating to such transaction have been complied with. (b) For purposes of this Section, the sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties or assets of one or more Subsidiaries of the Company, which properties or assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties or assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties or assets of the Company. (c) Notwithstanding the restrictions described in clause (D) of paragraph (a), any Restricted Subsidiary may consolidate with, merge into or dispose of all or part of its properties or assets to the Company, the Company may merge into a Restricted Subsidiary for the purpose of reincorporating the Company in another jurisdiction, and any Restricted Subsidiary may consolidate with, merge into or dispose of all or part of its properties or assets to another Restricted Subsidiary. (d) Upon any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties or assets of the Company in a transaction that is subject to, and that complies with the provisions of, this Section, the successor Person formed by such consolidation or into or with which the Company is merged or to which such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted for the Company (so that from and after the date of such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition, the provisions of this the Indenture referring to the “Company” shall refer instead to the successor Person and not to the Company), and may exercise every right and power of the Company under this the Indenture with the same effect as if such successor Person had been named as the Company herein and the predecessor Company shall be discharged and released from all Obligations under this Indenture and the Notesherein; provided, however, that the predecessor Company shall not be released from the obligation to pay the principal of and interest on the Notes in the case of a lease of all or substantially all of the Company’s properties or assets in a transaction that is subject to, and that complies with the provisions of this Section.

Merger, Consolidation or Sale of Substantially All Assets. (a) The Company will not (1) consolidate or merge with or into another Person (regardless of whether the Company is the surviving corporation), convert into another form of entity or continue in another jurisdiction; or (2) directly or indirectly, sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to another Person, unless: (Ai) either: (iA) the Company is the surviving corporation; or (iiB) the Person formed by or surviving any such consolidation or merger or resulting from such conversion (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made (the “Surviving Entity”) is a corporation, limited liability company or limited partnership organized or existing under the laws of the United States, any state of the United States or the District of Columbia; (Bii) the Person formed by or surviving any such conversion, consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made Surviving Entity assumes all the obligations of the Company under the Notes and this Indenture (and the relevant Registration Rights Agreement, if any obligations thereunder remain unsatisfied) pursuant to a supplemental indenture; provided that, unless such Person is a corporation, a corporate co-issuer of the Notes will be added to this Indenture by a supplement reasonably satisfactory to the Trustee; (Ciii) immediately after such transaction or transactions, no Default or Event of Default exists; (Div) the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition has been madeSurviving Entity, 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) either: (iA) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.06(a); or (iiB) have a Fixed Charge Coverage Ratio that is not less than the Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries immediately before such transaction; and (EC) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, sale, transfer or lease and such supplemental indenture, if any, comply with this Section and that all conditions precedent herein provided for relating to such transaction have been complied with; and (v) the Surviving Entity shall take such action (or agree to take such action) as may be reasonably necessary to cause any property or assets that constitute Collateral owned by or transferred to the Surviving Entity to be subject to the Liens in the manner and to the extent required under the Note Documents and shall deliver an opinion of counsel as to the enforceability of any amendments, supplements or other instruments with respect to the Note Documents to be executed, delivered, filed and recorded, as applicable, and such other matters as the Trustee may reasonably request. (b) For purposes of this Section, the sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties or assets of one or more Subsidiaries of the Company, which properties or assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties or assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties or assets of the Company. (c) Notwithstanding the restrictions described in clause (Div) of paragraph (a), any Restricted Subsidiary may consolidate with, merge into or dispose of all or part of its properties or assets to the Company, the Company may merge into a Restricted Subsidiary for the purpose of reincorporating the Company in another jurisdiction, and any Restricted Subsidiary may consolidate with, merge into or dispose of all or part of its properties or assets to another Restricted Subsidiary. (d) Upon any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties or assets of the Company in a transaction that is subject to, and that complies with the provisions of, this Section, the successor Person formed by such consolidation or into or with which the Company is merged or to which such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted for the Company (so that from and after the date of such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition, the provisions of this Indenture referring to the “Company” shall refer instead to the successor Person and not to the Company), and may exercise every right and power of the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein and the predecessor Company shall be discharged and released from all Obligations under this Indenture and the Notes; provided, however, provided that the predecessor Company shall not be released from the obligation to pay the principal of and interest on the Notes in the case of a lease of all or substantially all of the Company’s properties or assets in a transaction that is subject to, and that complies with the provisions of this Section.

Merger, Consolidation or Sale of Substantially All Assets. (a) The Company will Issuer shall not (1) consolidate or merge with or into another Person (regardless of whether the Company is the surviving corporation)into, convert into another form of entity or continue in another jurisdiction; or (2) directly or indirectly, sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, assets (determined on a consolidated basis for the Issuer and its Restricted Subsidiaries) in one or more related transactionstransactions to, to another any other Person, unless: (A) either: (ia) the Company Issuer is the surviving corporation; Person or (ii) the Person formed by or surviving any such consolidation or merger or resulting from such conversion (if other than the CompanyIssuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is a corporation, limited liability company or limited partnership corporation organized or and existing under the laws of the United StatesStates of America, any state of the United States thereof or the District of Columbia; (Bb) the Person formed by or surviving any such conversion, consolidation or merger (if other than the CompanyIssuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made assumes all the obligations Obligations of the Company under the Notes and this Indenture (and the Registration Rights AgreementIssuer, if any obligations thereunder remain unsatisfied) pursuant to a supplemental indenture; provided that, unless such Person is a corporationunder the Notes, a corporate co-issuer of the Notes will be added to this Indenture by a supplement reasonably satisfactory to and the TrusteeSecurity Documents; (Cc) immediately after giving effect to such transaction or transactionson a pro forma basis, no Default or Event of Default exists; (Dd) such transaction would not result in the loss or suspension or material impairment of any Gaming License unless a comparable replacement Gaming License is effective prior to or simultaneously with such loss, suspension or material impairment; and (e) the Company Issuer, or the any Person formed by or surviving any such consolidation or merger (if other than the Company)merger, or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made, would (on will be permitted, at the date time of such transaction and after giving pro forma effect thereto and to any related financing transactions as if the same such transaction had occurred at the beginning of the applicable four-quarter period) either: (i) be permitted , to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Interest Coverage Ratio test set forth in Section 4.06(a); or (ii) have a Fixed Charge Coverage Ratio that is not less than the Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries immediately before such transaction; and (E) the Company has delivered 4.9. The Issuer shall deliver to the Trustee prior to the consummation of any proposed transaction an Officers’ Certificate and to the foregoing effect, an Opinion of Counsel, each stating that such consolidation, merger, conveyance, sale, transfer or lease and such supplemental indenture, if any, comply with this Section and that all conditions precedent herein to the proposed transaction provided for relating to such transaction in this Indenture have been complied with. with and a written statement from a firm of independent public accountants of established national reputation stating that the proposed transaction complies with clause (b) e). For purposes of this SectionSection 5.1, the sale, assignment, transfer, lease, conveyance or other disposition transfer of all or substantially all of the properties or and assets of one or more Subsidiaries of the CompanyIssuer, which properties or and assets, if held by the Company Issuer instead of such Subsidiaries, would constitute all or substantially all of the properties or and assets of the Company Issuer on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties or and assets of the Company. (c) Issuer. Notwithstanding the restrictions described in foregoing clause (D) of paragraph (ae), any Restricted Subsidiary the Issuer may consolidate withreorganize as a corporation or other business entity in accordance with the procedures established in this Article V, merge into or dispose of all or part of its properties or assets to the Companyprovided that, the Company may merge into a Restricted Subsidiary (x) such transaction is solely for the purpose of reincorporating such reorganization and not for the Company in another jurisdiction, and any Restricted Subsidiary may consolidate with, merge into or dispose purpose of all or part of its properties or assets to another Restricted Subsidiary. (d) Upon any consolidation or merger, evading this provision or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties or assets of the Company in a transaction that is subject to, and that complies with the provisions of, this Section, the successor Person formed by such consolidation or into or with which the Company is merged or to which such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted for the Company (so that from and after the date of such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition, the provisions provision of this Indenture referring and not in connection with any other transaction, and (y) prior to such reorganization, the Issuer has delivered to the “Company” shall refer instead Trustee an Opinion of Counsel confirming that (i) the Holders will not recognize income, gain or loss for Federal income tax purposes as a result of the reorganization and will be subject to Federal income tax on the successor Person same amounts, in the same manner and at the same times as would have been the case if such reorganization had not to the Company)occurred, and may exercise every right (ii) the Issuer will not incur any material amount of Federal and power state taxes as a result of the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein and the predecessor Company shall be discharged and released from all Obligations under this Indenture and the Notes; provided, however, that the predecessor Company shall not be released from the obligation to pay the principal of and interest on the Notes in the case of a lease of all or substantially all of the Company’s properties or assets in a transaction that is subject to, and that complies with the provisions of this Sectionreorganization.

Merger, Consolidation or Sale of Substantially All Assets. (a) The Company will not not (1) consolidate or merge with or into another Person (regardless of whether the Company is the surviving corporation), convert into another form of entity or continue in another jurisdiction; or or (2) directly or indirectly, sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to another Person, unless: (A) either: (i) the Company is the surviving corporation; or (ii) the Person formed by or surviving any such consolidation or merger or resulting from such conversion (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is a corporation, limited liability company or limited partnership organized or existing under the laws of the United States, any state of the United States or the District of Columbia; (B) the Person formed by or surviving any such conversion, consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes and this Notes, the Indenture (and and, to the Registration Rights Agreement, if extent any obligations thereunder remain unsatisfied) , the Note Purchase Agreement, pursuant to a supplemental indentureagreements reasonably satisfactory to the Trustee; provided that, unless such Person is a corporation, a corporate co-issuer of the Notes will be added to this the Indenture by a supplement reasonably satisfactory to the Trusteesupplement; (C) immediately after such transaction or transactions, no Default or Event of Default exists; (D) the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition 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) either: (i) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.06(a); or (ii) have a Fixed Charge Coverage Ratio that is not less than the Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries immediately before such transaction; and (E) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, sale, transfer or lease and such supplemental indenture, if any, comply with this Section and that all conditions precedent herein provided for relating to such transaction have been complied with. (b) For purposes of this Section, the sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties or assets of one or more Subsidiaries of the Company, which properties or assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties or assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties or assets of the Company. (c) Notwithstanding the restrictions described in clause (D) of paragraph (a), any Restricted Subsidiary may consolidate with, merge into or dispose of all or part of its properties or assets to the Company, the Company may merge into a Restricted Subsidiary for the purpose of reincorporating the Company in another jurisdiction, and any Restricted Subsidiary may consolidate with, merge into or dispose of all or part of its properties or assets to another Restricted Subsidiary. (d) Upon any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties or assets of the Company in a transaction that is subject to, and that complies with the provisions of, this Section, the successor Person formed by such consolidation or into or with which the Company is merged or to which such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted for the Company (so that from and after the date of such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition, the provisions of this the Indenture referring to the “Company” shall refer instead to the successor Person and not to the Company), and may exercise every right and power of the Company under this the Indenture with the same effect as if such successor Person had been named as the Company herein and the predecessor Company shall be discharged and released from all Obligations under this Indenture and the Notesherein; provided, however, that the predecessor Company shall not be released from the obligation to pay the principal of and interest on the Notes in the case of a lease of all or substantially all of the Company’s properties or assets in a transaction that is subject to, and that complies with the provisions of this Section.

Merger, Consolidation or Sale of Substantially All Assets. (a) The Company Issuer will not (1) consolidate or merge with or into another Person (regardless of whether the Company Issuer is the surviving corporationentity), convert into another form of entity or continue in another jurisdiction; or (2) directly or indirectly, sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to another Person, unless: (Ai) either: (iA) the Company Issuer is the surviving corporationentity; or (iiB) the Person formed by or surviving any such consolidation or merger or resulting from such conversion (if other than the CompanyIssuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made (the “Surviving Entity”) is a corporation, limited liability company or company, limited partnership or trust organized or existing under the laws of the United States, any state of the United States or the District of Columbia; (Bii) the Person formed by or surviving any such conversion, consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made Surviving Entity assumes all the obligations of the Company Issuer under the Notes and this Indenture (and the relevant Registration Rights Agreement, if any obligations thereunder remain unsatisfied) pursuant to a supplemental indenture; provided that, unless such Person is a corporation, a corporate co-issuer of the Notes will be added to this Indenture by a supplement reasonably satisfactory to the Trustee; (Ciii) immediately after such transaction or transactions, no Default or Event of Default exists; (Div) the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition 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) either: (i) be permitted to incur at least $1.00 of additional Indebtedness pursuant Issuer delivers to the Fixed Charge Coverage Ratio test set forth in Section 4.06(a); or (ii) have a Fixed Charge Coverage Ratio that is not less than the Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries immediately before such transaction; and (E) the Company has delivered to the NIRAN Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, sale, transfer or lease and such supplemental indenture, if any, comply with this Section and that all conditions precedent herein provided for relating to such transaction have been complied with; and (v) the Surviving Entity shall take such action (or agree to take such action) as may be reasonably necessary to cause any Collateral owned by or transferred to the Surviving Entity to be subject to a Lien in favor of the NIRAN Trustee in the manner and to the extent required under the Note Documents and shall deliver an Opinion of Counsel as to the enforceability of any amendments, supplements or other instruments with respect to the Note Documents to be executed, delivered, filed and recorded, as applicable, and such other matters as the NIRAN Trustee may reasonably request. (b) For purposes of this Section, the sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties or assets of one or more Subsidiaries of the Company, which properties or assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties or assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties or assets of the Company. (c) Notwithstanding the restrictions described in clause (D) of paragraph (a), any Restricted Subsidiary may consolidate with, merge into or dispose of all or part of its properties or assets to the Company, the Company may merge into a Restricted Subsidiary for the purpose of reincorporating the Company in another jurisdiction, and any Restricted Subsidiary may consolidate with, merge into or dispose of all or part of its properties or assets to another Restricted Subsidiary. (d) Upon any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties or assets of the Company Issuer in a transaction that is subject to, and that complies with the provisions of, this Section, the successor Person formed by such consolidation or into or with which the Company Issuer is merged or to which such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted for the Company Issuer (so that from and after the date of such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition, the provisions of this Indenture referring to the “CompanyIssuer” shall refer instead to the successor Person and not to the CompanyIssuer), and may exercise every right and power of the Company Issuer under this Indenture with the same effect as if such successor Person Issuer had been named as the Company Issuer herein and the predecessor Company Issuer shall be discharged and released from all Obligations under this Indenture and the Notes; provided, however, provided that the predecessor Company Issuer shall not be released from the obligation to pay the principal of and interest on the Notes in the case of a lease of all or substantially all of the CompanyIssuer’s properties or assets in a transaction that is subject to, and that complies with the provisions of this Section.

Merger, Consolidation or Sale of Substantially All Assets. (a) The Company will not (1) consolidate or merge with or into another Person (regardless of whether the Company is the surviving corporation), convert into another form of entity or continue in another jurisdiction; or (2) ), directly or indirectly, sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to another Person, unless: (A) either: (i) the Company is the surviving corporation; or (ii) the Person formed by or surviving any such consolidation or merger or resulting from such conversion (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is a corporation, limited liability company or limited partnership organized or existing under the laws of the United States, any state of the United States or the District of Columbia; (B) the Person formed by or surviving any such conversion, consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes and this the Indenture (and the Registration Rights Agreement, if any obligations thereunder remain unsatisfied) pursuant to a supplemental indenture); provided that, unless such Person is a corporation, a corporate co-issuer of the Notes will be added to this the Indenture by a supplement reasonably satisfactory to the Trusteethis Indenture; (C) immediately after such transaction or transactions, no Default or Event of Default exists; (D) the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition 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) either: (i) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.06(a); or (ii) have a Fixed Charge Coverage Ratio that is not less than the Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries immediately before such transaction; and (E) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, sale, transfer or lease and such supplemental indenture, if any, comply with this Section and that all conditions precedent herein provided for relating to such transaction have been complied with. (b) For purposes of this Section, the sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties or assets of one or more Subsidiaries of the Company, which properties or assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties or assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties or assets of the Company. (c) Notwithstanding the restrictions described in clause (D) of paragraph (a), any Restricted Subsidiary may consolidate with, merge into or dispose of all or part of its properties or assets to the Company, the Company may merge into a Restricted Subsidiary for the purpose of reincorporating the Company in another jurisdiction, and any Restricted Subsidiary may consolidate with, merge into or dispose of all or part of its properties or assets to another Restricted Subsidiary. (d) Upon any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties or assets of the Company in a transaction that is subject to, and that complies with the provisions of, this Section, the successor Person formed by such consolidation or into or with which the Company is merged or to which such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted for the Company (so that from and after the date of such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition, the provisions of this the Indenture referring to the “Company” shall refer instead to the successor Person and not to the Company), and may exercise every right and power of the Company under this the Indenture with the same effect as if such successor Person had been named as the Company herein and the predecessor Company shall be discharged and released from all Obligations under this Indenture and the Notesherein; provided, however, that the predecessor Company shall not be released from the obligation to pay the principal of and interest on the Notes in the case of a lease of all or substantially all of the Company’s properties or assets in a transaction that is subject to, and that complies with the provisions of this Section.

Merger, Consolidation or Sale of Substantially All Assets. (a) The Company will not (1) consolidate or merge with or into another Person (regardless of whether the Company is the surviving corporation), convert into another form of entity or continue in another jurisdiction; or (2) ), directly or indirectly, sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to another Person, unless: (A) either: (i) the Company is the surviving corporation; or (ii) the Person formed by or surviving any such consolidation or merger or resulting from such conversion (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is a corporation, limited liability company or limited partnership organized or existing under the laws of the United States, any state of the United States or the District of Columbia; (B) the Person formed by or surviving any such conversion, consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes and this the Indenture (and the Registration Rights Agreement, if any obligations thereunder remain unsatisfied) pursuant to a supplemental indenture); provided that, unless such Person is a corporation, a corporate co-issuer of the Notes will be added to this the Indenture by a supplement reasonably satisfactory to the Trusteethis Indenture; (C) immediately after such transaction or transactions, no Default or Event of Default exists; (D) the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition 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) either: (i) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.06(a); or (ii) have a Fixed Charge Coverage Ratio that is not less than the Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries immediately before such transaction; and (E) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, sale, transfer or lease and such supplemental indenture, if any, comply with this Section and that all conditions precedent herein provided for relating to such transaction have been complied with. (b) For purposes of this Section, the sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties or assets of one or more Subsidiaries of the Company, which properties or assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties or assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties or assets of the Company. (c) Notwithstanding the restrictions described in clause (D) of paragraph (a), any Restricted Subsidiary may consolidate with, merge into or dispose of all or part of its properties or assets to the Company, the Company may merge into a Restricted Subsidiary for the purpose of reincorporating the Company in another jurisdiction, and any Restricted Subsidiary may consolidate with, merge into or dispose of all or part of its properties or assets to another Restricted Subsidiary. (d) Upon any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties or assets of the Company in a transaction that is subject to, and that complies with the provisions of, this Section, the successor Person formed by such consolidation or into or with which the Company is merged or to which such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted for the Company (so that from and after the date of such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition, the provisions of this the Indenture referring to the “Company” shall refer instead to the successor Person and not to the Company), and may exercise every right and power of the Company under this the Indenture with the same effect as if such successor Person had been named as the Company herein and the predecessor Company shall be discharged and released from all Obligations under this Indenture and the Notesherein; provided, however, that the predecessor Company shall not be released from the obligation to pay the principal of and interest on the Notes in the case of a lease of all or substantially all of the Company’s properties or assets in a transaction that is subject to, and that complies with the provisions of this Section.

Merger, Consolidation or Sale of Substantially All Assets. (a) The Company will not (1) consolidate or merge with or into another Person (regardless of whether the Company is the surviving corporation), convert into another form of entity or continue in another jurisdiction; or (2) directly or indirectly, sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to another Person, unless: (A) either: (i) the Company is the surviving corporation; or (ii) the Person formed by or surviving any such consolidation or merger or resulting from such conversion (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is a corporation, limited liability company or limited partnership organized or existing under the laws of the United States, any state of the United States or the District of Columbia; (B) the Person formed by or surviving any such conversion, consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes and this Indenture (and the relevant Registration Rights Agreement, if any obligations thereunder remain unsatisfied) pursuant to a supplemental indenture; provided that, unless such Person is a corporation, a corporate co-issuer of the Notes will be added to this Indenture by a supplement reasonably satisfactory to the Trustee; (C) immediately after such transaction or transactions, no Default or Event of Default exists; (D) the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, lease, conveyance or other disposition 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) either: (i) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.06(a); or (ii) have a Fixed Charge Coverage Ratio that is not less than the Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries immediately before such transaction; and (E) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, sale, transfer or lease and such supplemental indenture, if any, comply with this Section and that all conditions precedent herein provided for relating to such transaction have been complied with. (b) For purposes of this Section, the sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties or assets of one or more Subsidiaries of the Company, which properties or assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties or assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties or assets of the Company. (c) Notwithstanding the restrictions described in clause (D) of paragraph (a), any Restricted Subsidiary may consolidate with, merge into or dispose of all or part of its properties or assets to the Company, the Company may merge into a Restricted Subsidiary for the purpose of reincorporating the Company in another jurisdiction, and any Restricted Subsidiary may consolidate with, merge into or dispose of all or part of its properties or assets to another Restricted Subsidiary. (d) Upon any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties or assets of the Company in a transaction that is subject to, and that complies with the provisions of, this Section, the successor Person formed by such consolidation or into or with which the Company is merged or to which such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted for the Company (so that from and after the date of such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition, the provisions of this Indenture referring to the “Company” shall refer instead to the successor Person and not to the Company), and may exercise every right and power of the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein and the predecessor Company shall be discharged and released from all Obligations under this Indenture and the Notes; provided, however, that the predecessor Company shall not be released from the obligation to pay the principal of and interest on the Notes in the case of a lease of all or substantially all of the Company’s properties or assets in a transaction that is subject to, and that complies with the provisions of this Section.

Merger, Consolidation or Sale of Substantially All Assets. (a) The Company will Issuer shall not (1) consolidate or merge with or into another Person (regardless of whether the Company is the surviving corporation)into, convert into another form of entity or continue in another jurisdiction; or (2) directly or indirectly, sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, assets (determined on a consolidated basis for the Issuer and its Subsidiaries taken as a whole) in one or more related transactionstransactions to, to another any other Person, unless: (A) either: (i1) the Company Issuer is the surviving corporation; Person or (ii) the Person formed by or surviving any such consolidation or merger or resulting from such conversion (if other than the CompanyIssuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is a corporation, limited liability company or limited partnership an entity organized or and existing under the laws of the United StatesStates of America, any state of the United States or territory thereof or the District of Columbia; and, if such entity is not a corporation, a co-obligor of the Notes is a corporation organized or existing under such laws; (B2) the Person formed by or surviving any such conversion, consolidation or merger (if other than the CompanyIssuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made assumes all the obligations Obligations of the Company under the Notes and this Indenture (and the Registration Rights AgreementIssuer, if any obligations thereunder remain unsatisfied) pursuant to a supplemental indenture; provided that, unless such Person is a corporationunder the Notes, a corporate co-issuer of the Notes will be added to this Indenture by a supplement reasonably satisfactory to and the Trustee;Security Documents; and (C3) immediately after giving effect to such transaction or transactionson a pro forma basis, no Default or Event of Default exists;. (Db) The Note Guarantor may not consolidate with or merge with or into (whether or not the Note Guarantor is the surviving Person) another Person, whether or not affiliated with the Note Guarantor, unless: (1) either: (a) the Company Note Guarantor will be the surviving or continuing Person; or (b) the Person formed by or surviving any such consolidation or merger (if other than assumes, by supplemental indenture in form and substance satisfactory to the Company)Trustee, 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 all of the applicable four-quarter period) either: (i) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.06(a); or (ii) have a Fixed Charge Coverage Ratio that is not less than the Fixed Charge Coverage Ratio obligations of the Company Note Guarantor under the Guarantee, this Indenture and its Restricted Subsidiaries immediately before such transactionthe Security Documents; and (E2) the Company has delivered immediately after giving effect to such transaction, no Default shall have occurred and be continuing. The Issuer shall deliver to the Trustee prior to the consummation of any proposed transaction an Officers’ Certificate and to the foregoing effect, an Opinion of Counsel, each stating that such consolidation, merger, conveyance, sale, transfer or lease and such supplemental indenture, if any, comply with this Section and that all conditions precedent herein to the proposed transaction provided for relating to such transaction in this Indenture have been complied with. (b) . For purposes of this SectionSection 5.01, the sale, assignment, transfer, lease, conveyance or other disposition transfer of all or substantially all of the properties or and assets of one or more Subsidiaries of the Companyin one or more related transaction to any other Person, which properties or and assets, if held by the Company Issuer instead of such Subsidiaries, would constitute all or substantially all of the properties or and assets of the Company Issuer on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties or and assets of the Company. (c) Notwithstanding the restrictions described in clause (D) of paragraph (a), any Restricted Subsidiary may consolidate with, merge into or dispose of all or part of its properties or assets Issuer to the Company, the Company may merge into a Restricted Subsidiary for the purpose of reincorporating the Company in another jurisdiction, and any Restricted Subsidiary may consolidate with, merge into or dispose of all or part of its properties or assets such Person. This Section 5.01 will not apply to another Restricted Subsidiary. (d) Upon any consolidation or merger, or any sale, assignment, transfer, leaseconveyance, conveyance lease or other disposition of all assets between or substantially all of among the properties or assets of the Company in a transaction that is subject to, Issuer and that complies with the provisions of, this Section, the successor Person formed by such consolidation or into or with which the Company is merged or to which such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted for the Company (so that from and after the date of such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition, the provisions of this Indenture referring to the “Company” shall refer instead to the successor Person and not to the Company), and may exercise every right and power of the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein and the predecessor Company shall be discharged and released from all Obligations under this Indenture and the Notes; provided, however, that the predecessor Company shall not be released from the obligation to pay the principal of and interest on the Notes in the case of a lease of all or substantially all of the Company’s properties or assets in a transaction that is subject to, and that complies with the provisions of this Sectionits Subsidiaries.